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FOI Act user does not have to resubmit records requests

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NEWS MEDIA UPDATE   ·   MINNESOTA   ·   Freedom of Information   ·   Nov. 8, 2005

NEWS MEDIA UPDATE   ·   MINNESOTA   ·   Freedom of Information   ·   Nov. 8, 2005

FOI Act user does not have to resubmit records requests

  • New FOI Act requests for information from the Securities and Exchange Commission are not necessary simply because the status of the information has changed, a federal judge has ruled.

Nov. 8, 2005  ·   A federal judge rejected an argument from the Securities and Exchange Commission that a Freedom of Information Act requester must file new requests because the documents he sought no longer pertain to open SEC investigations. In turning away the SEC’s argument, U.S. District Judge Paul A. Magnuson in St. Paul, Minn., said John P. Gavin, president of SEC Insight, a private investment research company, did not have to redo his requests simply because the status of the investigations changed.

Magnuson also ruled Oct. 24 that the SEC has until Jan. 1 to show a federal judge it has thoroughly reviewed its use of Exemption 7(A) for 15 of Gavin’s FOI Act requests. Exemption 7(A) is the arm of the act’s law enforcement exemption that protects against interference in ongoing investigations.

“We’re just delighted that the judge told them they had to do a better job,” said Gavin, whose company files about 2,000 FOI Act requests a year, mostly with the SEC. Requests for documents related to an SEC investigation usually are denied and SEC Insight appeals almost all denials, he said. For the first time, Gavin went to court after building this case for a couple of years, he said.

The SEC argued that three requests, which the agency originally rejected by neither confirming or denying the existence of the requested documents, along with seven requests denied under Exemption 7(A), should be dismissed as moot because the requested documents pertained to open investigations that had since been closed.

The SEC suggested that SEC Insight should submit new FOI Act requests for the documents, but the court disagreed. “Even if the investigatory proceedings that involved the subjects of these ten requests have since closed, the Court does not believe that dismissal on mootness grounds is appropriate.” Magnuson ordered the 10 requests sent back for reprocessing and ordered document-by-document review for 15, while dismissing one of Gavin’s 26 requests.

The court ruled that the SEC did not submit sufficiently detailed affidavits regarding its use of Exemption 7(A) and ordered additional affidavits for 15 denied requests to demonstrate that the SEC complied with its duties to conduct a document-by-document review or disclose material that reasonably can be segregated from other validly secret material.

SEC Insight asked the court to bar the agency in future requests from refusing to confirm or deny the existence of materials requested under the FOI Act, the so-called “Glomar” response. That response was first defined in the 1976 case Phillipi v. Central Intelligence Agency when the government claimed that by merely acknowledging the existence of records it would give a requester information that could harm a government interest. Magnuson did not bar the agency from using the “Glomar” response in the future as Gavin requested, writing that “future harm is merely speculative in nature, and injunctive relief is inappropriate.”

The “Glomar” response was used by the SEC three times in the decade before 2002 and 99 times in 2003 alone, according to SEC Insight. The agency has not used the “Glomar” response for requests made by SEC Insight since the issue went to court in October 2004.

(J. Patrick Gavin v. U.S. Securities and Exchange Commission; Media counsel: Rachel B. Rosen, Ramsey & DeVore, Plymouth, Minn.)MM

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