Routine investment adviser examinations by the Securities and Exchange Commission (SEC) typically begin with requests from the SEC staff for the production of certain documents. When the investment adviser submits documents in response to these production requests, those materials may become subject to disclosure by the SEC through Freedom of Information Act (FOIA) requests, thereby potentially revealing trade secrets, client lists or proprietary records that the investment adviser would prefer remain confidential. Fortunately, SEC Rule 83 (17 C.F.R. § 200.83) provides a process through which investment advisers may request confidential treatment for sensitive information submitted to the SEC.
SEC Rule 83 applies not only in the context of routine examinations but also to inspections, investigations and in other cases where no procedures exist for requesting confidential treatment for certain categories of information. This article serves as a step-by-step guide for how to request confidential treatment from the SEC and highlights other important information about the process. This article also includes a form FOIA confidential treatment request letter for reference.
Procedural Requirements: First, to request confidential treatment of materials submitted to the SEC, the investment adviser must send a FOIA confidential treatment request letter (but not the records themselves) to the SEC by email to Rule83CTRs@sec.gov with a copy either mailed to the SEC’s Freedom of Information Act/Privacy Act Officer, 100 F Street NE., Mail Stop 2465, Washington, DC 20549 or faxed to (202) 772-9337.
Timing Requirements: If possible, the request for confidential treatment should be sent to the SEC’s FOIA Officer at the same time as the requested documents are submitted to the SEC staff, and the lead staff member assigned to the case should receive a copy of the confidential treatment request (see “cc” line on form letter below). If this is not an option, or if it would be impractical to submit a written request when the documents are first given to the SEC staff, you should (1) inform the SEC employee receiving the documents that confidential treatment under the FOIA is requested and (2) submit a written FOIA confidential treatment request within 30 calendar days of the date of testimony or submission of the record.
It is important to note that the confidential treatment request will expire 10 years from the date the SEC FOIA Officer receives the request, unless the FOIA Officer receives a renewal request before the confidential treatment request expires. Renewal requests must clearly identify the documents for which confidential treatment is sought and should be sent by mail to the SEC’s Freedom of Information Act/Privacy Act Officer, 100 F Street, NE., Washington, DC 20549. A renewal request will expire 10 years from the date the FOIA Officer receives it, unless the FOIA Officer receives another timely renewal request.
Formatting Requirements:
- Produced Documents: To be entitled to confidential treatment under FOIA, Rule 83 requires that each page of the produced documents be marked with (1) “Confidential Treatment Requested by [name]” and (2) an identifying number and code (i.e., Bates numbers). The documents must be specifically referred to in the confidential treatment request. If a cover letter is included in document production, the confidential treatment request must specify the confidential treatment of this letter as well (the form letter below is drafted accordingly).
- Confidential Treatment Request: The words “FOIA Confidential Treatment Request” must appear at the top of the request letter for confidential treatment. The name, address, and telephone number of the person requesting confidential treatment must appear in the request for confidential treatment. The Confidential Treatment Request must include the Bates number of the records for which they wish to request confidential treatment. The form letter is drafted in compliance with all these requirements.
Other Considerations:
The requestor may claim personal or business confidentiality under the Freedom of Information Act Exemption 7(A), 5 U.S.C. 552(b)(7)(A), but need not substantiate their request until the FOIA Officer notifies them of a FOIA request for the records. Upon notification of a request for substantiation, the CTR requester has 10 days from the date of notification of the request for substantiation to provide written substantiation. The substantiation requirements can be found in 17 C.F.R. § 200.83(d)(2).
A confidential treatment request is nonpublic unless an action is filed in Federal court by either the FOIA requestor or the person requesting confidential treatment of records. In either case, the confidential treatment request may become part of the court record.
Below is a link to a form letter for a confidential treatment request, which reflects the requirements outlined above.
FORM LETTER FOR CONFIDENTIAL TREATMENT REQUEST
Contacts:
Jarrod Azopardi I 817.420.8241 I jazopardi@winstead.com
Anna Balch I 817.420.8248 I abalch@winstead.com
Matthias Kleinsasser I 817.420.8281 I mkleinsasser@winstead.com
Andrew Rosell I 817.420.8261 I arosell@winstead.com
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