Subject: File No. S7-09-17
From: Keith P. Bishop
Affiliation: Former California Commissioner of Corporations

January 12, 2018

The following are my comments on the proposed amendments to the Securities and Exchange Commissions Freedom of Information Act ("FOIA") Regulations (File No. S7-09-17):

1. The definition of "educational institution" in Rule 200.80(g)(2)(iv) is inconsistent with the FOIA which limits fees for document duplication when "records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research". 5 U.S.C. Sec. 552(a)(ii)(II). Under the statute, the educational institution's purpose must be either scholarly or scientific research. The Commission's definition deviates from the statute in two respects. First, it omits reference to "scientific research". Second, and more importantly, it requires that the purpose of the request be "to further scholarly research" whereas the statute requires only that the educational institution have a purpose of scholarly or scientific research.

2. The definition of "noncommercial scientific institution" is inconsistent with FOIA because it imposes additional limitations and conditions not found in the statutory definition. Unlike the rule, the statute does not require (i) that the institution be operated solely for the purpose of conducting scientific research, or (ii) that the request is being made under the auspices of a qualifying institution.

3. The definition of "a representative of the news media" is inconsistent with the FOIA. Unlike the rule, the statute does not require that the representative be "organized and operated". Under the statute, an individual or sole proprietorship may be a "representative of the news media". See, e.g., 5 U.S.C. Sec. 552(a)(ii)(III) ("A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity."). By imposing an organizational requirement, the rule implies that only entities are eligible.

By way of background, I previously served as California's Commissioner of Corporations and in that capacity administered and enforced California's securities laws. I am the practice consultant to the leading treatise on the California securities laws. I have taught securities regulation at the University of California, Irvine School of Law (UCI) and have taught a variety of business law courses at Chapman University and UCI law schools. I have also served as Co-Chairman of the Corporations Committee of the Business Law Section of the California State Bar and Chairman of the Business and Corporate Law Section of the Orange County (California) Bar Association. These comments are submitted in my individual capacity and not on behalf of any other person.