Risk & Compliance

Judge: SEC Can Keep Financial Probes Secret

An investment research firm had accused the regulator of unlawfully denying requests for information about its company investigations.
Sarah JohnsonAugust 30, 2007

A federal judge has decided not to sanction the Securities and Exchange Commission for denying Freedom of Information Act requests by an investment research firm for details of commission investigations of a number of probes. Even though U.S. District Judge Paul Magnuson said the SEC’s behavior in the case caused the court “great frustration,” he decided to rule in the commission’s favor and deny the firm’s request to have its attorney fees paid by the SEC.

Nearly three years ago, the firm, SEC Insight, sued the SEC in the U.S. District Court of Minnesota for not turning over information related to the commission’s probes of companies’ financial information.

Created in 2000 to analyze the correspondence of the SEC’s Division of Corporation Finance, SEC Insight named Elan Corp, Citigroup, Sears, Charles Schwab, and other companies in its complaint. SEC Insight’s president John Gavin had formally asked the commission to release information on orders of investigation, Wells notices, and subpoenas at several companies. When those requests were denied, Gavin concluded that the SEC was inconsistent on which information it would release.

The SEC fought back, contending that it withheld information that, if disclosed, would have impeded its enforcement actions. A government agency can deny a FOIA request for matters related to law enforcement as long as “the production of such law enforcement records or information can reasonably be expected to interfere with enforcement proceedings,” according to one of FOIA’s exemptions.

Declining to discuss the case further, SEC spokesman John Nester said: “We are gratified by the decision.”

During the back-and-fourth of court filings, the SEC agreed to share some of the records Gavin had requested or to explain why it was denying his FOIA request. Gavin alleged the SEC gave in because of the aggressiveness of his requests and the court action, an idea that the SEC denied.

Magnuson agreed with Gavin on that point. “Gavin’s vigorous and persistent prosecution of the action — not the mere passage of time — forced the SEC to release the documents and comply with FOIA,” he said in his 35-page opinion earlier this month.

Further, the court expressed unhappiness with how the SEC acted in the case–in particular for stalling several times in fulfilling a court order to review the requested materials document by document. Still, “although the court disapproves of the SEC’s litigation tactics, they were not so outrageous as to warrant sanctions,” Magnuson wrote.

“We accomplished most of what we set out to do,” said Gavin’s attorney, Rachel Rosen of Hellmuth & Johnson. She told CFO.com that she and her client have a month to file an appeal and haven’t ruled out doing that. But while Rosen is disappointed about the ultimate outcome of the case, it did result in the SEC turning over “hundreds and hundreds of documents that I don’t believe they would have done outside of this case.”