iLast week, the Securities and Exchange Commission proposed that persons involved in administrative proceedings be required to submit all documents and other items electronically. The SEC is proposing these rules as part of its effort to create a comprehensive Internet-based electronic system that would, among other things, allow for the electronic filing and service of documents in administrative proceedings.
Under the proposed rules, a party would be required to omit sensitive personal information from electronic filings and submissions. Ostensibly, the SEC is proposing to require parties to exclude personal information in order to fulfill its obligations under the Privacy Act of 1974, 5 U.S.C. § 552a. However, this does not explain why the SEC would not require parties to delete home addresses.
Section 552a provides:
No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be— . . . (2) required under section 552 of this title [FOIA].
The Freedom of Information Act is the antithesis of the Privacy Act because whereas the Privacy Act prohibits disclosure, the FOIA requires disclosure. This same duality can be found in California’s Information Practices Act, Cal. Civ. Code § 1798 et seq., and its Public Records Act, Cal. Gov’t Code § 6250 et seq.
So the question becomes whether the FOIA requires disclosure of home addresses by the SEC. One of the FOIA exemptions from disclosure is Exemption 6, which provides that an agency need not disclose “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U. S. C. § 552(b)(6). In Dept. of Defense v. FLRA, 510 U.S. 487 (1994), the U.S. Supreme Court decided that disclosure of employee’s home addresses would be a clearly unwarranted invasion of federal employees’ privacy. In reaching this conclusion, the Court weighed the interest under FOIA against the privacy interests of the employees. The Court found the interest under FOIA to be scant, because home addresses shed no light on what the government was up to. See Department of Justice v. Reporters Comm. for Freedom of Press, 489 U. S. 749 (1989). While acknowledging that often home addresses are publicly available, the Court found that an “individual’s interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form.” Dept. of Defense, 510 U.S. at 500.
A needless tautology?
Lawyers are, of course, given to pleonastic writing. The SEC’s proposed rule would require that sensitive personal information be “redacted or omitted”. While “redact” and “omit” don’t mean quite the same thing, it is hard to say what “redact” adds to “omit” in the context of the proposed rule amendments. The word “redact” has a variety of meanings but it generally conveys the idea of bringing together, organizing or editing. The Commission is most likely using “redact” to mean edit out, which isn’t very far removed from omit.
