UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Chief FOIA Officer Report
Office of Support Operations
March 13, 2014
Chief FOIA Officer: Barry Walters
Section I: Steps Taken to Apply the Presumption of Openness
The guiding principle underlying the President's FOIA Memorandum and the Attorney General's FOIA Guidelines is the presumption of openness.
Describe the steps your agency has taken to ensure that the presumption of openness is being applied to all decisions involving the FOIA. To do so, you should answer the questions listed below and then include any additional information you would like to describe how your agency is working to apply the presumption of openness.
- Did your agency hold an agency FOIA conference, or otherwise conduct training during this reporting period?
- If so, please provide the number of conferences or trainings held, a brief description of the topics covered, and an estimate of the number of participants from your agency who were in attendance.
The SEC FOIA Office conducted substantive training in January 2013 for the FOIA Office Staff. In June 2013, the SEC Office of FOIA Services conducted FOIA Best Practices training for the FOIA staff. Approximately 20 FOIA staff and managers attended this training. The purpose of this training was to improve the levels of communication and cooperation among the SEC FOIA staff, resulting in greater consistency and improved quality and timeliness of responses. The topics covered included: (1) Utilization of SEC internal databases for FOIA research purposes, (2) Processing types of FOIA requests specific to the SEC, (3) Processing of requests seeking expedited processing and/or a fee waiver, (4) Confidential treatment and submitter notice under SEC regulations, (5) General FOIA processing guidelines and redaction policies.
- Did your FOIA professionals attend any FOIA training during the reporting period such as that provided by the Department of Justice?
Members of the SEC staff attended the following training provided by the Department of Justice: “FOIA for Attorneys and Access Professionals” in February and July 2013, and “Introduction to FOIA” in March 2013. Several members of the FOIA staff attended the American Society of Access Professionals’s 6th Annual National Training Conference (May 2013). A number of internal SEC FOIA Liaisons attended a DOJ FOIA Video Conference in November 2013, which included an overview of FOIA procedures and FOIA Exemptions.
- Provide an estimate of the percentage of your FOIA professionals who attended substantive FOIA training during this reporting period.
Over 95% of the FOIA professionals within the Office of FOIA Services attended substantive FOIA training. All of the SEC’s internal FOIA liaisons have completed a mandatory annual review of the FOIA Liaison Guidance which is posted to the SEC’s internal FOIA website. This guidance details the procedures for FOIA liaisons and staff of SEC divisions and program offices to follow in assisting the FOIA Office staff in processing requests. Many of these liaisons also attended additional substantive FOIA training.
- OIP has issued guidance that every agency should make core, substantive FOIA training available to all their FOIA professionals at least once each year. Provide your agency’s plan for ensuring that such training is offered to all agency FOIA professionals by March 2015. Your plan should anticipate an upcoming reporting requirement for your 2015 Chief FOIA Officer Reports that will ask whether all agency FOIA professionals attended substantive FOIA training in the past year.
The SEC plans to invite the Department of Justice, Office of Information Policy (OIP) staff to provide on-site substantive training for all SEC FOIA professionals in FY2014. This training would also be made available to all SEC FOIA liaisons and any interested managers or supervisors. Apart from the anticipated in-house training, FOIA staff are encouraged to attend OIP sponsored FOIA training in the Washington, DC area.
- Did your FOIA professionals engage in any outreach and dialogue with the requester community or open government groups regarding your administration of the FOIA? If so, please briefly discuss that engagement.
During the second quarter of FY2013, the Office of FOIA Services posted on its external website a page that solicits public comment on the SEC’s administration of the FOIA. This page may be accessed through the following link: SEC FOIA Feedback Survey. FOIA staff members are encouraged to communicate with requesters to facilitate the processing of requests.
- Does your agency have a formal process in place to review records for discretionary release? If so, please briefly describe this process. If your agency is decentralized, please specify whether all components at your agency have a process in place for making discretionary releases.
Each FOIA request is unique, and decisions to release or withhold records or portions thereof are made on a case-by-case basis after reviewing the records. As part of the processing of each of these FOIA requests, SEC FOIA professionals have been directed to review responsive records for information that may be subject to discretionary release. This information is then further analyzed so that a release determination can be made. The SEC has centralized FOIA processing.
- During the reporting period did your agency make any discretionary releases of otherwise exempt information?
- What exemptions would have covered the information that was released as a matter of discretion?
Exemption (b)(5) was used for a majority of the discretionary releases.
- Provide a narrative description, or some examples of, the types of information that your agency released as a matter of discretion.
Where discretion was exercised, primarily records containing deliberative process information were released. This was done after conducting a foreseeable harm analysis in keeping with guidance provided by the Office of Information Policy and the memoranda issued by the President and the Attorney General.
- If your agency was not able to make any discretionary releases of information, please explain why.
- Did your agency post all of the required quarterly FOIA reports for Fiscal Year 2013? If not, please explain why not and what your plan is for ensuring that such reporting is successfully accomplished for Fiscal Year 2014.
All quarterly reports for FY2103 were posted to the SEC’s website.
- Describe any other initiatives undertaken by your agency to ensure that the presumption of openness is being applied. If any of these initiatives are online, please provide links in your description.
The SEC routinely and proactively posts information to its website in an effort to be more transparent and to better serve the public. Links to specific examples are: Jumpstart Our Business Startups (JOBS) Act, Implementation of Dodd-Frank Act and White Papers and Economic Analyses. The SEC’s Open Government page at Open Government contains links to SEC Contract Spending, Datasets and Records & Reports. Apart from the information that is presently available on-line, the proactive disclosure process is ongoing at the SEC. By way of example, the SEC is currently reviewing plans to publish an EDGAR Log File Data on our frequently requested FOIA website. The EDGAR Log File Data has been compiled in response to FOIA requests by several university professors and students. The data is used by academicians researching hypothesis about investors’ habits/routines for searching EDGAR. For example, after a major announcement by a company concerning their stocks, academicians analyze investor reactions to the announcements, such as what company filings are then searched by investors. Additionally, the SEC is tentatively planning to proactively post records related to its Administrative Proceedings.
Section II: Steps Taken to Ensure that Your Agency Has an Effective System in Place for Responding to Requests
As the Attorney General emphasized in his FOIA Guidelines, "[a]pplication of the proper disclosure standard is only one part of ensuring transparency. Open government requires not just a presumption of disclosure, but also an effective system for responding to FOIA requests." It is essential that agencies effectively manage their FOIA program.
Describe here the steps your agency has taken to ensure that your management of your FOIA program is effective and efficient. To do so, answer the questions below and then include any additional information that you would like to describe how your agency ensures that your FOIA system is efficient and effective.
During Sunshine Week 2012 OPM announced the creation of a new job series entitled the Government Information Series, to address the work performed by FOIA and Privacy Act professionals. Creation of this distinct job series was a key element in recognizing the professional nature of their work.
- Has your agency converted all of its FOIA professionals to the new Government Information Specialist job series?
- If not, what proportion of personnel has been converted to the new job series?
- If not, what is your plan to ensure that all FOIA professionals’ position descriptions are converted?
The SEC does not plan to convert its FOIA professionals to the new Government Information Specialist series. The SEC’s current Research Specialist classification has been deemed more appropriate because the positions encompass additional duties unrelated to the processing of FOIA requests.
The SEC has independent authority for compensation and classification under 5 U.S. C. § 4802. Accordingly, the SEC has developed its classification standards apart from OPM issued standards. While not falling under the purview of OPM, the SEC’s system is nevertheless closely aligned with that of OPM. New or revised position standards are reviewed by the SEC when issued by OPM.
The SEC FOIA positions in question were reviewed against the new standard/series, but because SEC FOIA positions are not solely dedicated to that work, and have other functions and responsibilities; they do not meet the 0306 series. The positions therefore remain appropriately classified as Research Specialist, series 0301.
- For Fiscal Year 2013 did your agency maintain an average of ten or less calendar days to adjudicate requests for expedited processing? If not, describe the steps your agency will take to ensure that requests for expedited processing are adjudicated within ten calendar days or less.
Yes. The SEC maintained an average of four calendar days in adjudicating requests for expedited processing.
- Has your agency taken any steps to make the handling of consultations and referrals more efficient and effective, such as entering into agreements with other agencies or components on how to handle certain categories or types of records involving shared equities so as to avoid the need for a consultation or referral altogether, or otherwise implementing procedures that speed up or eliminate the need for consultations. If so, please describe those steps.
During the relevant time period the SEC had less than 25 referrals and consultations from other federal agencies. Because these requests represented only a slight fraction of the total number of requests received, there was no need to create new procedures or policies, or enter into any agreements with other agencies.
With regard to coordination with internal SEC components, the Office of FOIA Services instituted procedures to ensure that referrals are in compliance with the 2007 amendments to the greatest extent practicable. Detailed guidance was provided to SEC program office liaisons regarding internal consultations and referrals.
- Do you use e-mail or other electronic means to communicate with requesters when feasible?
Yes. Email is utilized whenever requesters provide an email address. Responsive records are transmitted via email where the volume of the records does not prohibit such transmission.
- Does your agency notify requesters of the mediation services offered by the Office of Government Information Services (OGIS) at NARA?
Yes. Upon denial of any appeal the SEC’s Office of the General Counsel advises requesters of the availability of mediation services through OGIS as an alternative to litigation.
- Describe any other steps your agency has undertaken to ensure that your FOIA system operates efficiently and effectively, such as conducting self-assessments to find greater efficiencies, improving search processes, eliminating redundancy, etc.
The Annual FOIA Report provides an opportunity to audit the program for any unique or systemic issues. Each year the FOIA Officer reviews the results and underlying data in the Annual Report. Subsequently, findings may indicate that staff need focused training, policies or procedures may need to be revised or reinforced and/or that changes to system configuration are needed. Additionally, new or revised software enhancements may be indicated.
The SEC’s Office of FOIA Services utilizes FOIA Xpress, a comprehensive, web-based application for tracking and processing requests. The FOIA tracking software and servers were upgraded to improve system performance. Software support and maintenance continued throughout the year. In addition to the upgrades and maintenance, the SEC has an on-site FOIA Xpress representative, as well as SEC IT personnel, to address problems as they arise.
Section III: Steps Taken to Increase Proactive Disclosures
Both the President and Attorney General focused on the need for agencies to work proactively to post information online without waiting for individual requests to be received.
Describe here the steps your agency has taken both to increase the amount of material that is available on your agency website, and the usability of such information, including providing examples of proactive disclosures that have been made during this past reporting period (i.e., from March 2013 to March 2014). In doing so, answer the questions listed below and describe any additional steps taken by your agency to make and improve proactive disclosures of information.
- Do your FOIA professionals have a system in place to identify records for proactive disclosures?
- If so, describe the system that is in place.
The application used by the SEC for tracking and processing requests allows the FOIA professionals to identify when certain records have been requested three times. These records are considered for posting to the SEC’s webpage, Frequently Requested FOIA Documents.
Requests are also reviewed on an individual basis to determine if the subject matter is of a heightened public interest. These records are likewise considered for posting.
The Office of FOIA Services follows the protocol developed by the Open Government Team, located in the Office of the Secretary of the Commission. This protocol is posted on the SEC’s website and serves to provide all SEC components with defined dissemination criteria along with data quality assurance guidelines. Due to the high volume of information posted daily by the SEC, there is also guidance on prioritization of requests for public posting. The Office of FOIA Services generally obtains top-level posting priority — meaning that requests for posting to the FOIA web page receive a same day or 1- day priority.
- Provide examples of material that your agency has posted this past reporting period, including links to where this material can be found online.
On both its FOIA and Open Government webpages, the SEC proactively posts information for which there is a heightened public interest. Apart from information that is of interest to the general public, the SEC posts information that is of particular interest to the community of individuals who regularly access its website. Examples of the types of information that the SEC proactively posts can be found by accessing the following links:
Making Posted Material More Useful:
- Beyond posting new material, is your agency taking steps to make the posted information more useful to the public, especially to the community of individuals who regularly access your agency’s website, such as soliciting feedback on the content and presentation of posted material, improving search capabilities on the site, posting material in open formats, making information available through mobile applications, providing explanatory material, etc.?
- If so, provide examples of such improvements.
One example is the Market Structure page on the SEC’s public website that was launched in October 2013. The information being made available is of particular use to the community of individuals who regularly access the SEC’s website. The page was created to promote better understanding of equity markets and equity market structure through the use of data and analytics. The public can now review current staff market structure research, use interactive data visualization tools to explore a variety of advanced market metrics produced from the Commission’s Market Information Data and Analytics System (MIDAS), and download dozens of datasets to perform their own analyses. Further, the page allows for public feedback and interaction with SEC staff.
The SEC Docket was made available online in FY2013 to make it easier to locate and access publicly available SEC records. The SEC Docket is posted weekly and the information readily available to the public includes releases concerning SEC rulemaking activity, including concept releases, proposed rules, final rules, interpretive releases, and policy statements. Further, information is available on SEC enforcement actions, opinions issued by the Commission, briefs filed by SEC staff, trading suspensions, and notices concerning the creation of investors’ claims funds in specific cases.
- Did your agency use any means to publicize or highlight important proactive disclosures for public awareness? If so, was social media utilized?
The SEC uses a variety of platforms to reach the widest possible audience for information dissemination. Examples include offering the public the opportunity to sign up for an RSS Feed of SEC news, or subscribe to receive SEC updates by e-mail. Public registrations are accessible via the EDGAR system on the SEC homepage. Investor alerts and bulletins can be linked to Social web sites such as Twitter and Facebook via www.investor.gov.
- Has your agency encountered challenges that make it difficult to post records you otherwise would like to post? If so, please briefly explain what those challenges are.
- Describe any other steps taken to increase proactive disclosures at your agency.
No additional steps have been taken beyond the foregoing.
Section IV: Steps Taken to Greater Utilize Technology
A key component of the President's FOIA Memorandum was the direction to "use modern technology to inform citizens about what is known and done by their Government." In addition to using the internet to make proactive disclosures, agencies should also be exploring ways to utilize technology in responding to requests. Over the past several years agencies have reported widespread use of technology in receiving and tracking FOIA requests and preparing agency Annual FOIA Reports. For 2014, as we have done over the past years, the questions have been further refined and now also address different, more innovative aspects of technology use.
Online tracking of FOIA requests:
- Can a FOIA requester track the status of his/her request electronically?
- If yes, how is this tracking function provided to the public? For example, is it being done through regularly updated FOIA logs, online portals, or other mediums?
- Describe the information that is provided to the requester through the tracking system. For example, some tracking systems might tell the requester whether the request is "open" or "closed," while others will provide further details to the requester throughout the course of the processing, such as "search commenced" or "documents currently in review.” List the specific types of information that are available through your agency's tracking system
- In particular, does your agency tracking system provide the requester with an estimated date of completion for his/her request?
- If your agency does not provide online tracking of requests, is your agency taking steps to establish this capability? If not, please explain why.
Contingent upon the availability of resources, the SEC is considering implementing a system that would allow for on-line tracking capability.
Use of technology to facilitate processing of requests
- Beyond using technology to redact documents, is your agency taking steps to utilize more advanced technology to facilitate overall FOIA efficiency, such as improving record search capabilities, utilizing document sharing platforms for consultations and referrals, or employing software that can sort and de-duplicate documents?
- If so, describe the technological improvements being made.
- Are there additional technological tools that would be helpful to achieving further efficiencies in your agency’s FOIA program?
The SEC’s present utilization of technology is sufficient to comply with its responsibilities under the FOIA. There are additional technological tools that might be used by the SEC to assist in administering its FOIA program; however, these tools are currently cost prohibitive.
Section V: Steps Taken to Improve Timeliness in Responding to Requests and Reducing Backlogs
The President and the Attorney General have emphasized the importance of improving timeliness in responding to requests. This section addresses both time limits and backlog reduction. Backlog reduction is measured both in terms of numbers of backlogged requests or appeals and by looking at whether agencies closed their ten oldest requests, appeals, and consultations. For the figures required in this Section, please use those contained in the specified sections of your agency’s 2013 Annual FOIA Report and, when applicable, your agency’s 2012 Annual FOIA Report.
Simple Track Requests:
- Section VII.A of your agency’s Annual FOIA Report, entitled “FOIA Requests — Response Time for All Processed Requests,” includes figures that show your agency's average response times for processed requests. For agencies utilizing a multi-track system to process requests, there is a category for “simple” requests, which are those requests that are placed in the agency’s fastest (non-expedited) track, based on the low volume and/or simplicity of the records requested.
- Does your agency utilize a separate track for simple requests?
- If so, for your agency overall, for Fiscal Year 2013, was the average number of days to process simple requests twenty working days or fewer?
Yes. The SEC took an average of 14 days to process simple requests during FY2013.
- If your agency does not track simple requests separately, was the average number of days to process non-expedited requests twenty working days or fewer?
Backlogs and “Ten Oldest” Requests, Appeals and Consultations:
- Section XII.A of your agency’s Annual FOIA Report, entitled “Backlogs of FOIA Requests and Administrative Appeals” shows the numbers of any backlogged requests or appeals from the fiscal year. Section VII.E, entitled “Pending Requests — Ten Oldest Pending Requests,” Section VI.C.(5), entitled “Ten Oldest Pending Administrative Appeals,” and Section XII.C., entitled "Consultations on FOIA Requests — Ten Oldest Consultations Received from Other Agencies and Pending at Your Agency," show the ten oldest pending requests, appeals, and consultations. You should refer to these numbers from your Annual FOIA Reports for both Fiscal Year 2012 and Fiscal Year 2013 when completing this section of your Chief FOIA Officer Report.
- If your agency had a backlog of requests at the close of Fiscal Year 2013, did that backlog decrease as compared with Fiscal Year 2012?
- If your agency had a backlog of administrative appeals in Fiscal Year 2013, did that backlog decrease as compared to Fiscal Year 2012?
Ten Oldest Requests
- In Fiscal Year 2013, did your agency close the ten oldest requests that were pending as of the end of Fiscal Year 2012?
- If no, please provide the number of these requests your agency was able to close by the end of the fiscal year, as listed in Section VII.E of your Fiscal Year 2012 Annual FOIA Report. If you had less than ten total oldest requests to close, please indicate that. For example, if you only had seven requests listed as part of your "ten oldest" in Section VII.E. and you closed two of them, you should note that you closed two out of seven “oldest” requests.
Eight of the SEC’s ten oldest requests of FY2012 were closed in FY2013. Of the remaining two requests, one was closed in December 2013.
Ten Oldest Appeals
- In Fiscal Year 2013, did your agency close the ten oldest administrative appeals that were pending as of the end of Fiscal Year 2012?
If no, please provide the number of these appeals your agency was able to close, as well as the number of appeals your agency had in Section VI.C.(5) of your Fiscal Year 2012 Annual FOIA Report.
Ten Oldest Consultations
- In Fiscal Year 2013, did your agency close the ten oldest consultations received by your agency and pending as of the end of Fiscal Year 2012?
No consultations were pending as of the end of FY2012.
- If no, please provide the number of these consultations your agency did close, as well as the number of pending consultations your agency listed in Section XII.C. of your Fiscal Year 2012 Annual FOIA Report.
Reasons for Any Backlogs:
- If you answered “no” to any of the questions in item 2 above, describe why your agency was not able to reduce backlogs and/or close the ten oldest pending requests, appeals, and consultations. In doing so, answer the following questions then include any additional explanation:
Request and/or Appeal Backlog
- Was the lack of a reduction in the request and/or appeal backlog a result of an increase in the number of incoming requests or appeals?
- Was the lack of a reduction in the request and/or appeal backlog caused by a loss of staff?
Yes. Over FY2013 there was an overall reduction in FOIA staff.
- Was the lack of a reduction in the request and/or appeal backlog caused by an increase in the complexity of the requests received?
Yes. The SEC received an increasing number of requests for records that presented novel processing issues. For example, there was an increase in the number of requests for whistleblower records and market manipulation records. These records are inherently complex and require specialized review.
- What other causes, if any, contributed to the lack of a decrease in the request and/or appeal backlog?
The SEC was unable to close two of the ten oldest requests from FY2012. Both of these requests were part of the SEC’s complex queue based upon the volume of responsive records and the time projected to complete processing. One of the requests is currently in litigation and is subject to a reverse FOIA suit. As noted in the response to 2d above, the other request was closed in December 2013.
“Ten oldest” Not Closed
- Briefly explain the obstacles your agency faced in closing its ten oldest requests, appeals, and consultations from Fiscal Year 2012.
Despite the SEC receiving and processing a record number of requests in FY2013, the backlog decreased from the previous Fiscal Year. In addition, in FY2013 there was an overall reduction in FOIA staff. Further, the SEC received an increasing number of requests for records that presented novel processing issues. For example, there was an increase in the number of requests for whistleblower records and market manipulation records. These records are inherently complex and require specialized review.
- If your agency was unable to close any of its ten oldest requests or appeals because you were waiting to hear back from other agencies on consultations you sent, please provide the date the request was initially received by your agency, the date when your agency sent the consultation, and the date when you last contacted the agency where the consultation was pending.
Plans for Closing of Ten Oldest Pending Requests, Appeals, and Consultations and Reducing Backlogs:
Given the importance of these milestones, it is critical that Chief FOIA Officers assess the causes for not achieving success and create plans to address them.
- If your agency did not close its ten oldest pending requests, appeals, and consultations, please provide a plan describing how your agency intends to close those “ten oldest” requests, appeals, and consultations during Fiscal Year 2014.
As previously noted, eight of the SEC’s ten oldest requests of FY2012 were closed in FY2013. Of the remaining two requests, one is in litigation and is complete with the exception of records that are subject to a reverse FOIA claim. The reverse FOIA claim is presently on appeal before the United States Court of Appeals for the District of Columbia. When the court renders a decision the SEC will be able to make a final release determination. The other request was closed in December 2013.
- If your agency had a backlog of more than 1000 pending requests and did not reduce that backlog in Fiscal Year 2013, provide your agency’s plan for achieving backlog reduction in the year ahead.
OIP has issued guidance encouraging agencies to make interim releases whenever they are working on requests that involve a voluminous amount of material or require searches in multiple locations. By providing rolling releases to requesters agencies facilitate access to the requested information.
- Does your agency have a system in place to provide interim responses to requesters when appropriate?
The SEC processes all FOIA requests with a high level of customer service in mind. Although it is not possible to provide an exact estimate of the number of backlogged requests where we provided an interim response, it is our practice to provide interim releases whenever possible.
- If your agency had a backlog in Fiscal Year 2013, please provide an estimate of the number or percentage of cases in the backlog where a substantive, interim response was provided during the fiscal year, even though the request was not finally closed.
Interim responses are not tracked and it is not possible to calculate a percentage of the backlogged requests where a substantive, interim response was provided. Although this information is not tracked, the SEC releases information on a rolling basis whenever possible.
Use of FOIA’s Law Enforcement “Exclusions”
In order to increase transparency regarding the use of the FOIA’s statutory law enforcement exclusions, which authorize agencies under certain exceptional circumstances to “treat the records as not subject to the requirements of [the FOIA],” 5 U.S.C. § 552(c)(1), (2), (3), please answer the following questions:
- Did your agency invoke a statutory exclusion during Fiscal Year 2013?
- If so, what was the total number of times exclusions were invoked?
The SEC invoked the c1 exclusion five times during the relevant time frame.
Spotlight on Success
Out of all the activities undertaken by your agency since March 2013 to increase transparency and improve FOIA administration, please briefly describe here at least one success story that you would like to highlight as emblematic of your agency’s efforts. The success story can come from any one of the five key areas. As noted above, these agency success stories will be highlighted during Sunshine Week by OIP. To facilitate this process, all agencies should use bullets to describe their success story and limit their text to a half page. The success story is designed to be a quick summary of a key achievement. A complete description of all your efforts will be contained in the body of your Chief FOIA Officer Report.
During the reporting period the SEC received and processed the most FOIA requests of any previous year, and achieved a significant reduction in its FOIA request backlog. This occurred despite attrition in FOIA staff and submission of increasingly complex requests. These significant milestones were achieved as a result of focused training and program oversight, working smarter and support from the highest levels of SEC management.