The SEC-ret of their success?

Last summer, we happened to be looking for some agency success stories about FOIA request backlog reduction, and we thought we’d found one at the Securities and Exchange Commission (SEC).

The agency’s backlog had peaked above 10,000 requests in FY06, after the number of incoming requests shot up over the previous three years (and stayed up) — but the SEC was able to increase its per-year processing total, and cut the built-up backlog by over 90 percent in two years, despite receiving a steady stream now of eight or nine thousand requests each year. (See Section V of annual SEC FOIA reports from FY99-09: the SEC had 10,403 requests pending at the end of FY06, but only 899 requests pending at the end of FY08.)

However, right after we realized this, the SEC’s inspector general (IG) released a report in September 2009 (see coverage by RCFP and Scott Hodes), criticizing the agency for a variety of FOIA-processing problems. The report noted that the Commission denied a disproportionately high proportion of FOIA requests (56 percent compared to just 13 percent across all agencies) based on an inability to find information.   For example, author William D. Cohan, a former reporter and banker, described several years of FOIAs to the SEC in the New York Times: the agency reluctantly complied with one request, but a couple other requests have been ignored, one request was considered and then unilaterally canceled, and one request was denied for fear of interfering with (law) enforcement activities.  Here’s the kicker: the Senate released similar documents within days. As Cohan noted, the SEC IG’s report found:

There are inadequate or incorrect procedures for determining whether potentially responsive documents exist and how exemptions… are applied, which have the effect of creating a presumption in favor of withholding, rather than disclosure, as required by the FOIA.

Agencies should be cutting backlogs and processing more requests, but FOIA requesters and transparency lose if such gains come at the price of creating overbroad and unjustified categories exempt material.

[Note: At a September 16, 2010 House Financial Services Committee hearing, SEC Chair Mary Schapiro explained that the agency issues an unusual volume of responses for which no information is found because the information sought simply does not exist at the agency.]

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