And, in compliance with that law, Section 9291(e) does exactly that. At the time of passing OPEN FOIA, it was hoped that, by explicitly identifying new exemptions, the requirement that new exemptions specifically cite back to FOIA would raise awareness that a new exemption was under consideration, and give people opposing any new carve-out an opportunity to make their case. Anyone remember that happening here?
The extent of the SEC’s new b(3)b, though more limited than Fox has described it, remains undefined. The agency will have to argue a case in court as to what they take records or information obtained for “surveillance, risk assessments, or other regulatory and oversight activities” to mean. (The SEC’s statement speaks of including products derived from this category, a step towards expansiveness.) And judges will, as they have in litigation around other FOIA exemptions, have to make some decisions about what congress intended here.
But one thing’s clear: they didn’t intend to exempt the SEC from each and every FOIA, no matter what someone on Fox Business says.
CORRECTION, 7:30pm: It’s Fox Business Network, not “Fox Business News”, as the article originally had it. The text has been corrected.
You've captured the issue well.
We still need a better way to ensure overbroad exemptions are caught and rewritten or dropped to avoid this mistake from happening in the future. Government could pay attention in a more coherent way to these exemptions before they become law. Right now, when an agency like SEC sends one of these proposals to the Hill (and they do regularly), staff shrug their shoulders and agree to let an exemption through if no one raises an objection. But if those staff could quickly run the proposal by someone who knows FOIA's existing requirements and exemptions, the staff could be more informed and better evaluate whether something like the 929I provisions were overbroad or appropriate.
Rick Blum, coordinator
Sunshine in Government Initiative
#1 Posted by Rick Blum, CJR on Wed 11 Aug 2010 at 02:17 PM