August 3, 2015

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July 31, 2015

SEC Oversight of Financial Industry Regulatory Authority (FINRA) Exempt from FOIA Request

The District Court for the District of Columbia has held that the Securities and Exchange Commission is exempt from producing documents relating to its audit, inspections, and review of the Financial Industry Regulatory Authority (FINRA) in response to a Freedom of Information Act (FOIA) request.

An association of attorneys representing public investors in securities arbitrations requested that the SEC produce documents related to its oversight of FINRA’s Dispute Resolution branch and examination of its administrative function. Specifically, the association sought documents concerning FINRA’s arbitrator selection process. The associations believed the arbitration selection process should be more transparent and fair. The SEC claimed Exemption 8 of FOIA did not require the SEC to produce responsive materials. The exemption protects documents “related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.”

The court rejected the association’s arguments that Congressional intent weighed in favor of requiring the SEC to produce. Instead, the court found that the exemption was designed to safeguard the relationship between the financial institution and the reviewing agency in order to ensure that FINRA would continue to fully cooperate with the SEC. Coupled with the broad language of the exemption, the court concluded that SEC documents “related to” its oversight of FINRA need not be disclosed. The court nevertheless expressed reservations about the breadth of the SEC’s disclosure exemption, noting that the association “may be correct that Exemption 8 is overbroad because it extends to records related to the oversight of self-regulatory organizations,” but concluded that in light of the statutory language, “plaintiff’s arguments must be directed to Congress.” Public Investors Arbitration Bar Ass’n v. S.E.C., No. 11-2285 (D.D.C. Mar. 14, 2013).

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About this Author

Dean N. Razavi, entertainment litigator, Katten Muchin law firm
Associate

Dean Razavi concentrates his practice in entertainment litigation. He has represented a variety of motion picture studios, television networks, production companies and other media and entertainment concerns in disputes. Dean has experience representing these companies in cases regarding defamation, copyright, trademark, First Amendment, breach of contract and common law litigation. His cases in the entertainment field have included television shows like the Biggest Loser, and movies such as Drive and I Don't Know How She Does It. Dean...

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