[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
                    LEGISLATIVE PROPOSALS TO ADDRESS 
                      CONCERNS OVER THE SEC'S NEW 
                       CONFIDENTIALITY PROVISION 

=======================================================================

                                HEARING

                               BEFORE THE

                    COMMITTEE ON FINANCIAL SERVICES

                     U.S. HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 16, 2010

                               __________

       Printed for the use of the Committee on Financial Services

                           Serial No. 111-154

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                 HOUSE COMMITTEE ON FINANCIAL SERVICES

                 BARNEY FRANK, Massachusetts, Chairman

PAUL E. KANJORSKI, Pennsylvania      SPENCER BACHUS, Alabama
MAXINE WATERS, California            MICHAEL N. CASTLE, Delaware
CAROLYN B. MALONEY, New York         PETER T. KING, New York
LUIS V. GUTIERREZ, Illinois          EDWARD R. ROYCE, California
NYDIA M. VELAZQUEZ, New York         FRANK D. LUCAS, Oklahoma
MELVIN L. WATT, North Carolina       RON PAUL, Texas
GARY L. ACKERMAN, New York           DONALD A. MANZULLO, Illinois
BRAD SHERMAN, California             WALTER B. JONES, Jr., North 
GREGORY W. MEEKS, New York               Carolina
DENNIS MOORE, Kansas                 JUDY BIGGERT, Illinois
MICHAEL E. CAPUANO, Massachusetts    GARY G. MILLER, California
RUBEN HINOJOSA, Texas                SHELLEY MOORE CAPITO, West 
WM. LACY CLAY, Missouri                  Virginia
CAROLYN McCARTHY, New York           JEB HENSARLING, Texas
JOE BACA, California                 SCOTT GARRETT, New Jersey
STEPHEN F. LYNCH, Massachusetts      J. GRESHAM BARRETT, South Carolina
BRAD MILLER, North Carolina          JIM GERLACH, Pennsylvania
DAVID SCOTT, Georgia                 RANDY NEUGEBAUER, Texas
AL GREEN, Texas                      TOM PRICE, Georgia
EMANUEL CLEAVER, Missouri            PATRICK T. McHENRY, North Carolina
MELISSA L. BEAN, Illinois            JOHN CAMPBELL, California
GWEN MOORE, Wisconsin                ADAM PUTNAM, Florida
PAUL W. HODES, New Hampshire         MICHELE BACHMANN, Minnesota
KEITH ELLISON, Minnesota             KENNY MARCHANT, Texas
RON KLEIN, Florida                   THADDEUS G. McCOTTER, Michigan
CHARLES A. WILSON, Ohio              KEVIN McCARTHY, California
ED PERLMUTTER, Colorado              BILL POSEY, Florida
JOE DONNELLY, Indiana                LYNN JENKINS, Kansas
BILL FOSTER, Illinois                CHRISTOPHER LEE, New York
ANDRE CARSON, Indiana                ERIK PAULSEN, Minnesota
JACKIE SPEIER, California            LEONARD LANCE, New Jersey
TRAVIS CHILDERS, Mississippi
WALT MINNICK, Idaho
JOHN ADLER, New Jersey
MARY JO KILROY, Ohio
STEVE DRIEHAUS, Ohio
SUZANNE KOSMAS, Florida
ALAN GRAYSON, Florida
JIM HIMES, Connecticut
GARY PETERS, Michigan
DAN MAFFEI, New York

        Jeanne M. Roslanowick, Staff Director and Chief Counsel

























                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on:
    September 16, 2010...........................................     1
Appendix:
    September 16, 2010...........................................    43

                               WITNESSES
                      Thursday, September 16, 2010

Blum, Rick, Coordinator, Sunshine in Government Initiative.......    29
Canterbury, Angela, Director of Public Policy, Project On 
  Government Oversight...........................................    27
Issa, Hon. Darrell E., a Representative in Congress from the 
  State of California............................................     7
Merrill, Susan L., Partner, Bingham McCutchen LLP, on behalf of 
  the Securities Industry and Financial Markets Association 
  (SIFMA)........................................................    32
Mintz, Steven G., Founding Partner, Mintz & Gold LLP.............    30
Pitt, Hon. Harvey L., Chief Executive Officer, Kalorama Partners, 
  LLC............................................................    25
Schapiro, Hon. Mary L., Chairman, U.S. Securities and Exchange 
  Commission.....................................................    10
Towns, Hon. Edolphus, a Representative in Congress from the State 
  of New York....................................................     5

                                APPENDIX

Prepared statements:
    Paul, Hon. Ron...............................................    44
    Towns, Hon. Edolphus.........................................    45
    Blum, Rick...................................................    48
    Canterbury, Angela...........................................    57
    Merrill, Susan L.............................................    71
    Mintz, Steven G..............................................    88
    Pitt, Hon. Harvey L..........................................   114
    Schapiro, Hon. Mary L........................................   127

              Additional Material Submitted for the Record

Issa, Hon. Darrell E.:
    Letter to Hon. Mary Schapiro, Chairman of the SEC, dated 
      September 15, 2010.........................................   140
Schapiro, Hon. Mary:
    Letter to Representative Watt dated October 27, 2010, 
      providing additional information in response to a question 
      posed during the hearing...................................   149


                    LEGISLATIVE PROPOSALS TO ADDRESS
                      CONCERNS OVER THE SEC'S NEW
                       CONFIDENTIALITY PROVISION

                              ----------                              


                      Thursday, September 16, 2010

             U.S. House of Representatives,
                   Committee on Financial Services,
                                                   Washington, D.C.
    The committee met, pursuant to notice, at 10:05 a.m., in 
room 2128, Rayburn House Office Building, Hon. Barney Frank 
[chairman of the committee] presiding.
    Members present: Representatives Frank, Waters, Maloney, 
Watt, Moore, Lynch, Scott, Green, Cleaver, Kosmas; Bachus, 
Royce, Manzullo, Biggert, Hensarling, Neugebauer, Campbell, 
Posey, Jenkins, and Lance.
    The Chairman. The hearing will come to order.
    We have some conflicts. We are trying to crowd a lot into a 
few weeks. So I am going to call on the ranking member to give 
his opening statement and then the gentleman from Texas, Mr. 
Hensarling. They have other business. So the gentleman from 
Alabama is recognized for 2\1/2\ minutes.
    Mr. Bachus. Thank you, Mr. Chairman, for holding today's 
hearing to examine the broad exemption from the Freedom of 
Information Act accorded the SEC under Section 929I of the 
Dodd-Frank Act.
    Let me also thank Chairman Schapiro for being with us today 
and for her willingness to work with the committee in a spirit 
of bipartisanship and cooperation to address the concerns that 
have been raised about Section 929I by Congressman Issa and 
others.
    The Dodd-Frank Act confers significant new supervisory and 
investigative authorities on the SEC. Combining these powers 
with the provision that appears at first blush to insulate the 
SEC from public scrutiny has caused some alarm among Members on 
both sides of the aisle. This hearing provides a welcome 
opportunity to address some of the confusion and to consider a 
solution that ensures proper accountability at the SEC, while 
not undermining the agency's important ability to exercise 
effective supervision over the thousands of firms it is 
responsible for overseeing in the post-Dodd-Frank world.
    To her credit, Chairman Schapiro has been candid with the 
committee and with the American people in acknowledging the 
past failures of the SEC in protecting investors and regulating 
large investment banks. We can all agree that the agency that 
presided over the collapse of some of the largest financial 
institutions on Wall Street and was apparently unable to stop 
Bernie Madoff from perpetrating the largest financial fraud in 
American history must be more transparent and any statutory 
departures from a general policy of openness must be crafted 
carefully. Unfortunately, Section 929I--and I think Congressmen 
Towns and Issa agree--doesn't meet this standard for good 
legislative draftsmanship, and the provision's broad wording 
has given rise to concerns that it could invoked to withhold 
information the public has a right to know. But the SEC would 
prefer it to remain secret for fear it would be cast in an 
unfavorable light.
    At the same time, no one questions the SEC's legitimate and 
important need to preserve confidentiality of certain materials 
it collects during the examination process. In fact, some of 
these would be protected by contract law.
    The Chairman. Would the gentleman request an additional 30 
seconds?
    Mr. Bachus. Just 5 additional seconds.
    Let me close by commending the chairman on something else. 
The Commission's anticipated action to prevent window dressing, 
the transfer the liabilities off balance to improve month-
ending report, very similar to the Repo 105 tactics at Lehman 
Brothers, I think, is a symbol of a changing attitude under 
Chairman Schapiro's leadership; and I commend her and yield 
back the balance of my time.
    The Chairman. I thank the gentleman.
    The gentleman from Massachusetts, Mr. Lynch, is now 
recognized for 2 minutes.
    Mr. Lynch. Thank you, Mr. Chairman.
    I want to thank the ranking member as well; and I would 
like to welcome our witnesses today, my other chairman, 
Chairman Ed Towns, and also our ranking member, Darrell Issa. 
Thank you for your good work on this. I also want to thank 
Harvey Pitt, who will be testifying a little bit later on the 
third panel, and whose opinion I greatly respect.
    As many have noted, since the passage of the regulatory 
reform legislation this past summer, the SEC gained significant 
regulatory responsibilities with this new bill. I have always 
believed that it is important to provide regulators with the 
proper tools and resources as well as a certain amount of 
flexibility to do their jobs and accomplish their mission.
    A recent example of the importance of the SEC's regulatory 
ability was evidenced in the aftermath of the flash crash in 
May. High frequency trading is suspected to have played a role 
in the crash. However, as Chairman Schapiro noted in her letter 
to us on July 30th--actually, it was a letter to Chairman 
Frank--``high frequency trading firms have historically been 
reluctant to provide information on formulas to the SEC out of 
privacy concerns.'' This obviously can hamstring the efforts of 
investigators to determine the cause of the crash and how to 
prevent another one in the future.
    Section 929I addresses this very issue. It allows the SEC 
to protect the information and records it receives from 
regulated firms.
    It is also a fact that I am sensitive, however, to the 
criticisms of the provision citing the need for more 
transparency within financial regulation, not less. I believe 
prudent checks and balances are necessary within our financial 
system, so I appreciate the opportunity to discuss the 
legislative proposal before us that would affect this 
provision.
    Again, my thanks to the witnesses, and I thank the 
chairman, and I yield back.
    The Chairman. The gentleman from Texas is recognized for 
2\1/2\ minutes.
    Mr. Neugebauer. Thank you, Mr. Chairman. Thank you for 
holding this hearing.
    This is the first hearing I guess that we have had on Dodd-
Frank since it became law, and it probably won't be the last. 
When you have such massive legislation that creates so many new 
programs and authorities, rulemaking authority, I suspect we 
will be looking back at the rule's provisions.
    The purpose of government should be only to make sure there 
is integrity and transparency. We give certain agencies the 
authority to do that, to ensure that there is integrity and 
transparency in the marketplace, and we have given the SEC a 
lot of authority, some people think too much authority.
    One of the things that we do want to do is in their normal 
course of business we want to make sure they are able to 
collect the information that allows them to regulate the 
entities that they are supposed to oversee. But, at the same 
time, we want them to be protective of that information when it 
is proprietary to those particular companies.
    But by the same token too, the SEC needs to be accountable 
for their actions; and one of the concerns I think a lot of 
folks have about Section 929I is that it might give the agency 
some leeway there to claim that certain information is 
privileged under 929I and that information would not be 
available and the transparency integrity piece of government 
then is violated.
    So I am glad that we are having this hearing today. I think 
it is important that we get this right. We rushed through a lot 
of these provisions as this bill was being marked up, and it is 
important that we go back now and make sure that in those areas 
where we didn't get it right, that we do get it right. We owe 
that to the American people. We owe it to the people who are 
relying on the SEC to protect their investments.
    And with that, Mr. Chairman, I yield back my time.
    The Chairman. I will yield myself 3 minutes.
    The gentleman's statement that we rushed through these 
provisions is flatly inaccurate. And, in fact, with regard to 
this particular provision--and we are here to think about 
changing it and narrowing it and making it more specific--it 
was first essentially put before us by Chris Cox in 2006. I 
don't think that is a big rush. Chris Cox was chairman of the 
SEC under President Bush, and he asked for it.
    In 2008, we were again asked for it when Chairman Cox was 
still the Chairman, and this committee voted out a bill 
unanimously that included it. Maybe the gentleman from Texas 
was rushed that day when he apparently didn't object to it. But 
that was over 2 years ago. And it went to the Floor and passed 
on suspension.
    This has been around for a while. And it was introduced 
again in 2009 in both bodies. It was before us. When the 
subcommittee voted on the provisions or the committee that Mr. 
Kanjorski had worked on, it was there. It was then in both 
bills throughout the conference period. The base text was 
posted on the 10th of June.
    So it has been out there. All during the conference, 
Members had a chance to look at it.
    Yes, it is a big bill. It has a lot of separate sections. 
We worked on it for a little over a year. And while we are now 
getting complaints that we rushed through it, we also had 
complaints we were having too many meetings and hearings. So 
this is a serious subject, and I think talking about it being 
rushed through demeans inaccurately the seriousness of what we 
are trying to do.
    What happened apparently was there was a lawsuit that had 
been brought looking for information, and it became clear that 
this provision could have interfered with that lawsuit. Now 
that was not something that Chris Cox could have foreseen in 
2006. I don't think Chris Cox was trying to hide anything in 
2006. We have Harvey Pitt's testimony here; and Mr. Pitt, I 
don't think, was trying to hide anything.
    This is a serious fact here that a legitimate issue to them 
now appears to have other consequences. What I am told by 
Chairman Schapiro--and she has tried very much to beef up 
enforcement--is that the initiative for this came from the 
enforcement people who said, if we aren't able to protect some 
proprietary information, it would be harder for us to get it. 
And that is the purpose.
    No one, I hope, thinks we should be in any way shielding 
the SEC. I am convinced that it went too far. As I said, it has 
been something we have been talking about for 4 years. It 
wasn't until this lawsuit that people were able to look at the 
conflict. I would hope we could discuss this in a serious 
manner.
    There was the absolute need for unmitigated transparency 
with regard to the SEC, and the question is, is the SEC doing 
its job? And the SEC has to understand that there have been too 
many examples of it not having done its job recently for people 
to rest easy on that. On the other hand, we don't want to make 
it harder for the enforcement people to get what they need. I 
don't know whether there is a way to sort that out.
    Senator Leahy had a bill. He tried to hotline it. It was 
not hotlined. Let me say--and I am going to give myself another 
30 seconds--it is clear that legislation is required, I 
believe. I know the chairman has done a very good job of trying 
to make this specific. But I think, given this, legislation is 
probably necessary. We will be looking at it. We have time to 
do something. And the Senate, for once, is interested in doing 
something. So we will be dealing with it.
    But let's again be clear, this is a bipartisan request that 
has gone through two Administrations from two SECs. It was 
generated by the enforcement people. It has been out in public 
and debated in this committee--I will give myself another 30 
seconds--for several years.
    Someone noted that there was a conflict between that and 
the lawsuit. It came to our attention. We promptly had a 
hearing. That is an appropriate way to go. And it is my 
intention to work together--and I hope in a bipartisan way--
with partisan cracks along the way--that, I suppose, comes with 
the territory--to resolve this in an appropriate manner.
    The gentleman from California is recognized for 2\1/2\ 
minutes.
    Mr. Campbell. Thank you, Mr. Chairman.
    I will neither debate nor challenge your history on how we 
got here. But I am one of the bipartisan, bicameral bills--or a 
part of one of the bills that are both bipartisan and bicameral 
dealing with this. And, as the chairman suggested, we are here 
today because of a FOX Business Network lawsuit and information 
request. And the information request, my understanding is, was 
on Bernie Madoff and Allen Stanford and those Ponzi schemes.
    Now we all understand the need with the Freedom of 
Information Act to protect confidential and proprietary 
information of the regulated entities, but I think what has--at 
least for this Member, and I would presume for many of the 
other Members who have introduced legislation--it is difficult 
to understand why anything involving Bernie Madoff and Allen 
Stanford is proprietary, confidential information that needs to 
be protected under the Freedom of Information Act. That leads 
us all to perhaps a conclusion that maybe what we are trying to 
do is shield, in fact, the SEC and perhaps some actions of the 
SEC.
    Now as we look at the financial markets and the financial 
industry, both in the past and going forward in the future, 
certainly there are regulated entities that are under both SEC 
scrutiny and legislative scrutiny for actions in the past and 
will be for actions in the future. But the SEC should not be 
immune itself--the regulator--it should not be immune itself--
not just the regulated--from the scrutiny of this legislative 
body as well. And it would appear that this Section 929I is--
and I agree with the chairman--overly broad and permits the SEC 
to shield itself from scrutiny by this legislative body, which 
I think is inappropriate.
    But I look forward to hearing both the testimony of the 
Members at the table now and then the chairman of the SEC 
later.
    Thank you very much. I yield back.
    The Chairman. No further requests for time.
    Before me is the gentleman from New York, Mr. Towns, who is 
the chairman of the Committee on Government Reform and 
Oversight. He is now recognized.

STATEMENT OF THE HONORABLE EDOLPHUS TOWNS, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF NEW YORK

    Mr. Towns. Thank you very much, Chairman Frank, Ranking 
Member Bachus, and members and staff of the Committee on 
Financial Services for inviting me today.
    The landmark Dodd-Frank Wall Street Reform and Consumer 
Protection Act made significant improvements to the 
accountability and the transparency of our Nation's financial 
system. The Act gives consumers access to more information 
about investment and it reins in the abusive and excessive 
practices on Wall Street.
    Passing the Dodd-Frank Act was an important achievement. 
But our work in Congress did not end when the bill was passed. 
It is critical that we exercise vigilant oversight of 
implementation and that we act to close loopholes when they are 
identified. To that end, I applaud you, Chairman Frank, for 
your willingness to hold this hearing to examine a significant 
loophole that I believe undermines the core purposes of the 
Dodd-Frank Act.
    Section 929I of the Act would allow the SEC to avoid 
disclosing information the Commission receives during 
examination of companies if the information is used for 
surveillance, risk assessment, or other regulatory and 
oversight activities. This language is too broad. It allows the 
SEC to keep secret virtually any information it obtains under 
its examination authority.
    SEC Chairwoman Mary Schapiro has asserted that the 
Commission will only use Section 929I as intended. But the SEC 
has already indicated its willingness to exploit this loophole. 
In an action the SEC brought against a broker-dealer, the 
Commission tried to use 929I to avoid an administrative law 
judge's order to comply with the subpoena. That clearly goes 
beyond the intent of the provision and the SEC's reasons for 
needing the provision in the first place.
    Chairwoman Schapiro yesterday issued guidance that places 
limits on the Commission's use of Section 929I. This is a step 
in the right direction, and I do agree with that. But the 
Chairwoman's guidance is not sufficient because the Commission 
can change its interpretation at any time, and the fact that 
guidance is needed at all is evidence itself that the provision 
is too broad and subject to abuse.
    The SEC's rationale for Section 929I is that the provision 
is necessary to ensure that the Commission can obtain sensitive 
information when the Commission is performing examinations.
    Mr. Chairman, I introduced H.R. 6086 on August 10, 2010. 
H.R. 6086 repeals the secrecy provision of Section 929I and 
amends the Securities Exchange Act to clarify that any entity 
the SEC regulates under the Securities Exchange Act will be 
considered a financial institution for the purpose of FOIA 
Exemption 8. My bill strikes a careful balance to address the 
SEC's concerns without compromising the goals of transparency 
and accountability that are the heart of the Dodd-Frank Act.
    In a letter supporting H.R. 6086, a coalition of 36 public 
interest organizations, including groups such as the Project on 
Government Oversight, the Sunlight Foundation, and 
openthegovernment.org wrote in support of this legislation: 
``This bill sends a clear message that public access is vital 
to accountability,'' and I am submitting a copy of that letter 
for the record today.
    The culture of accountability must start at the top. 
Allowing the SEC to operate in the darkness or in secrecy will 
undermine the confidence of consumers and regulated companies.
    I look forward to continuing to work with you, Chairman 
Frank, and the committee so that we can quickly and effectively 
address this issue. I want to thank the members of the 
committee. I want to thank you, Mr. Chairman, for holding this 
hearing today. I really feel that this is a start to be able to 
correct something that could be very detrimental as we move 
forward.
    On that note, I yield back the 3 seconds.
    [The prepared statement of Representative Towns can be 
found on page 45 of the appendix.]
    The Chairman. The gentleman from California, Mr. Issa, will 
have 5 minutes and 3 seconds.

STATEMENT OF THE HONORABLE DARRELL E. ISSA, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Issa. Thank you, Mr. Chairman, and Ranking Member 
Bachus.
    I respect the fact that this is the committee of 
jurisdiction that does oversee the SEC and that the nuances of 
what should or should not be made available under FOIA to a 
great extent falls within this committee.
    Chairman Towns and I are here because we represent the 
committee that is really about transparency. We will always be 
the committee that probably starts off assuming that everything 
should be available unless otherwise justified.
    Chairman Towns' bill and what one might call a companion or 
a similar bill, H.R. 5924, which I also authored, really tried 
to unring the bell. That is our position. Our position is, you 
start over. You essentially undo what happened in the Dodd 
bill, and then you thoughtfully and carefully weigh what 
Chairman Cox brought, what Chairman Schapiro is bringing, and 
don't give them what they ask for or what they want. Give them 
what they need. The decision of what they actually need in the 
long run will be yours.
    But let's assume the following: Every bureaucrat, no matter 
how well intended, always wants to err on the side of caution 
unless the public believes they should err on the side of more.
    Now as I look down at Mike Oxley above the chairman, I 
remember that, in fact, Sarbanes-Oxley passed under many of 
your watches. I am perhaps the only Member of Congress serving 
on a public board both before and after that, taking a company 
public and watching as we went through the SEC process.
    The Securities and Exchange Commission is not an 
enforcement agency first. It is not the FBI. It does not deal 
in vast secrets. It is, in fact, an agency that exists for no 
other reason primarily than to ensure us transparency of the 
information and honesty of the information that public 
companies put out there in order that there might be public 
confidence, trust, and, thus, the free flow of funds to 
investments. The SEC exists in no small way in order to create 
transparency and honesty.
    Now, of course, we have an enforcement responsibility, and 
often they ask for additional information and information that 
should not be made public. But, make no mistake, the SEC is 
about asking for proprietary information to be made public as a 
part of what they do. We all know that you can find out a great 
deal about a company--far more about a public company than you 
can a privately held company as a result of their wanting to be 
before us.
    As Congressman Campbell said, it is impossible for us to 
understand how criminal enterprises such as Bernie Madoff's 
can, in fact, continue to enjoy some level of protection from 
scrutiny by the public. So Mr. Chairman, we are coming before 
you here today to a great extent not to debate whether 
suggestions made by former SEC Chairman Cox or current 
Chairwoman Schapiro are, in fact, appropriate. That is your 
decision to be made in good time. But we are asking you to 
consider legislation that would effectively unring the bell, 
allow that process to go forward without prejudice based on 
what was put in the bill that we believe was overly broad.
    I might point out to the committee--not that you wouldn't 
already know it but perhaps for the public--that the SEC prior 
to this 929I only granted 13 percent of FOIA requests. And, as 
far as we can tell, it was only overturned when they denied 
once.
    So this is an agency that knows how to say ``no,'' has the 
power to say ``no,'' and says ``no'' most of the time. I think 
that is one of the reasons that in my letter to Chairwoman 
Schapiro, which I would ask unanimous consent to be placed in 
the record--
    The Chairman. Without objection, it is so ordered.
    Mr. Issa. --we pointed out some of the details of that 
history, not to say by any means that her guidelines were 
inappropriate and weren't a good step but that, in fact, if we 
unrang the bell here today, they still only would grant about 
13 percent of FOIA. They would fully protect company secrets. 
And if they can't, I certainly want to make sure that this 
committee, in due time, ensures that we do provide them the 
tools that they need.
    I might note that there is a legitimate reason to say that 
no one should ever be able to use the Securities and Exchange 
Commission to backdoor their way into information that would 
not otherwise be available through FOIA. That is a good point 
and a good starting point.
    So as we take this step forward I would hope that the 
members of the committee who have the absolute jurisdiction 
would start over to the extent possible, give us a quick remedy 
from an overly broad prohibition on FOIA, and then 
appropriately listen to Chairman Cox and Chairman Schapiro in 
the future.
    Thank you for the extra few seconds. I yield back.
    The Chairman. Thank you.
    Again, I want to be very clear. From what I am hearing, it 
is because FOX filed that lawsuit and it was in the course of 
the lawsuit that people discovered the problems.
    I just want to note, again, to repeat, in 2008, the House 
passed this bill--a bill including this unanimously. Some of 
the people who are now for appeal were cosponsors. It was put 
in, in 2009, when the committee debated the part of the 
financial reform bill of which this was a part, 45 amendments 
were offered, and none of them affected this. That is, nobody 
at the time, when we had a long set of markups, thought about 
it.
    The bill went to the Floor of the House. It was in the 
House. It was also in the Senate, and 241 amendments were filed 
in the Rules Committee. None dealt with this. And then members 
will remember with varying degrees of joy the conference 
process during which every member of the conference offered 
amendments on a variety of subjects, and nobody offered an 
amendment on this.
    So this has been out in the public--and I am saying that to 
be clear. Because the question is, how did this slip through? 
It didn't slip through. It was plausible language. Often you 
don't know something until it is time-tested, and the lawsuit 
tested this. So that is why we are here.
    Having been through all this, having had it laying out 
before all of us who were here, and everybody here, conferees 
here, three of us conferees there, two conferees there, it just 
didn't occur to anybody until it was called to our attention, 
and I believe that Congress is now acting appropriately. And I 
think what the gentleman from California suggested, we do 
have--let me just say by way of procedurally, we have a short 
time period now, and it may even get shorter. And there are two 
possibilities. One is that we try to amend--and I think it is 
clear that something should be done. Either we try to amend it 
in some way, as was proposed, or it is a two-step process of a 
repeal with a note that this should not be left undone and 
reapproached, and whether that would be later this year or next 
year, it could be done. Because, again, as I said, the history 
of this makes it very clear. It has been totally nonpartisan. 
So we can work on that.
    Do any other members have any comments or questions for our 
colleagues? If not, according to the custom, we thank them.
    I do want to note, yes, it is within our jurisdiction. One 
of the things I am very proud of with regard to this committee 
is that we have engaged in no turf battles with anybody, 
because I think that is Congress at its worst. When we are 
engaged in jurisdictional battles, we appear to the public to 
be just interested in sort of prestige. We have the full 
participation of both of these members in the conference, not 
restricted, de facto to what we talked about. And we will be 
drawing on the expertise of that committee which has 
jurisdiction over FOIA as we proceed. So I thank both 
gentlemen.
    Mr. Issa. I thank the chairman. And I would just ask 
unanimous consent that our report from May be included in the 
record as part of our submission.
    The Chairman. The report on the SEC?
    Mr. Issa. On the SEC, yes. It is a published report.
    The Chairman. So why do you have to publish it again?
    Mr. Issa. I would note for the record that you are right. 
Thank you, Mr. Chairman.
    The Chairman. We will now call on Chairman Mary Schapiro. 
And I thank the gentlemen.
    As the Chairman takes her place, I would ask unanimous 
consent to include in the record a statement from the Society 
of American Business Editors and Writers, not previously 
published, I would note. No, I take it back. It has been 
previously published. We will put it in. It is short.
    Without objection, it will be included.
    Chairman Schapiro, let me say I appreciate your coming. And 
I just want to say at the outset, no one I think does or should 
consider this in any way any kind of criticism or indictment. 
My own view is that you have significantly improved the 
enforcement mechanism.
    I know Mr. Khuzami couldn't be here because of impossible 
conflicts, but I welcome him and what he has been doing.
    So I want to make very clear--and I think everybody has 
made this clear--we are here in a spirit of cooperation. We 
have a common enterprise. We have conflicting goals, to some 
extent, which is tough enforcement but also complete openness. 
And I think, in good faith, we will work together there.
    So, Chairman Schapiro, please begin. And as this is a 
complicated subject, I don't think anyone would object if we 
give you the flexibility to go over the 5 minutes that we give 
some others from time to time usually. You are a one-person 
panel, so we can do that. Go ahead.

  STATEMENT OF THE HONORABLE MARY L. SCHAPIRO, CHAIRMAN, U.S. 
               SECURITIES AND EXCHANGE COMMISSION

    Ms. Schapiro. Thank you very much Mr. Chairman.
    Chairman Frank, Ranking Member Bachus, and members of the 
committee, thank you for the opportunity to testify today on 
behalf of the Securities and Exchange Commission concerning 
Section 929I of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act.
    Section 929I was designed to improve our examinations of 
regulated entities by clarifying the protections afforded to 
regulatees that provide the Commission with sensitive and 
confidential materials as part of those examinations. It is a 
provision that we raised with Congress for several years in 
both a bipartisan and transparent manner. Indeed, as the 
chairman has noted, 2 years ago, the House of Representatives 
passed language that, while not identical, was substantively 
the same in its protection of examination documents as Section 
929I.
    Among other things, the SEC is responsible for examining in 
excess of 17,000 entities that play central roles in our 
capital markets, including investment advisers, broker-dealers, 
and credit rating agencies, to name just a few. During those 
inspections, our examiners frequently request confidential and 
sensitive business records that are critical to our oversight. 
Yet because of uncertainties in the law, some regulated 
entities have expressed concern about the Commission's ability 
to protect those documents from compelled disclosure to the 
public or to their competitors. That ambiguity has impeded our 
ability to obtain vital examination information on a timely 
basis.
    Section 929I was designed to eliminate this substantial and 
longstanding impediment and facilitate more thorough and 
efficient examinations. 929I was never intended to exempt the 
SEC from the Freedom of Information Act, nor does it. FOIA is a 
landmark law that guarantees citizens access to government 
information, provided certain exemptions do not apply.
    In the case of the SEC and other financial examiners, FOIA 
seeks to balance the public's right to information with the 
government's responsibility to provide effective supervision. 
Though FOIA, through Exemption 8, does provide important 
protections from disclosure for examination materials obtained 
from ``financial institutions,'' that term is not defined in 
the law. Indeed, courts have not yet addressed whether certain 
entities the Commission has the authority and the 
responsibility to examine--for example, credit rating agencies, 
transfer agents and municipal advisers--are financial 
institutions for purposes of these FOIA protections.
    Additionally, existing FOIA exemptions do not apply, of 
course, in non-FOIA contexts. So when a private party in 
litigation with another private party subpoenas documents from 
the Commission, potentially about its competitors, that the 
Commission has received through its examination program, the 
Commission has had to rely on arguments of undue burden, 
relevance, or common law privilege to protect the information 
from disclosure.
    Section 929I appropriately provides needed protection in 
this non-FOIA litigation context. Rather than use the 
Commission to gain access to information, private litigants 
should have to seek documents from the registered entity, which 
is, after all, best positioned to articulate the sensitivities 
of that information.
    While the Commission believes 929I will improve its 
examination program by facilitating better and more timely 
access to vital information, it also shares a commitment to 
accountability and transparency that is embodied by the Freedom 
of Information Act. The Commission recognizes that Section 929I 
is meant to balance the public's right to information with the 
benefits of a robust examination program, a balance that is 
recognized under FOIA as well.
    To ensure that these important and competing interests were 
appropriately balanced, including in the third-party litigation 
context, last month I instructed the staff to refrain from 
invoking 929I until the Commission issued guidance as to when 
and how to assert this provision. Yesterday, the Commission 
issued clear guidance to the staff on the appropriate use of 
929I. A copy of that guidance is attached to my written 
testimony.
    With respect to FOIA requests, the staff and the Commission 
will continue to rely on existing FOIA exemptions and use 929I 
only where the information is obtained through the examination 
program and where the courts have not yet determined whether 
the examined entity is a financial institution.
    With regard to third party or non-FOIA litigation, 929I 
will only be invoked where the information, had it been sought 
via FOIA, could have been protected under existing FOIA 
exemptions and then only when the party cannot establish a 
substantial need to obtain it from the Commission. 929I will 
not be invoked in any matter where the SEC or the United States 
Government is a party.
    Finally, you have asked that we comment on the bills 
introduced that would explicitly or effectively repeal 929I. I 
am concerned that these bills, as currently drafted, may not 
provide certainty to regulated entities concerning the 
protection of their proprietary information. In addition, none 
of these proposals address instances in which third parties 
seek to compel the Commission to produce documents in non-FOIA 
litigation through third-party subpoenas. I am, therefore, 
concerned these bills would diminish the Commission's ability 
to obtain in a timely fashion the information needed for 
comprehensive examinations.
    In sum, 929I is important to our ability to develop a 
robust examination program that better protects investors. As 
you know, our examinations help us to identify compliance 
errors as well as wrongdoing, and where wrongdoing is 
uncovered, these examinations result in referrals to our 
enforcement division. A vigorous enforcement program goes hand-
in-hand with a good examination program. Though we recognize 
the competing policy interests it raises, a return to the 
status quo ante will again limit the efficacy of our exam 
program. I do believe the Commission's guidance strikes an 
appropriate balance by addressing the primary issues that 
existed prior to this new law, while simultaneously protecting 
against application in a broader-than-intended manner.
    Thank you very much, and of course I am happy to answer 
your questions.
    [The prepared statement of Chairman Schapiro can be found 
on page 127 of the appendix.]
    Ms. Waters. [presiding] Thank you very much, Chairwoman, 
for being here today.
    I recognize myself for 5 minutes.
    Chairman Schapiro, the SEC has been asking for this 
authority for some time. In addition to some regulated 
entities--some regulated entities have refused to provide 
requested information to the SEC out of fear that the 
information would later be subject to a FOIA request. Can you 
provide specific examples of an instance where having the new 
confidentiality provision would have allowed the SEC to better 
influence its rules and regulations against a financial 
institution?
    Ms. Schapiro. Yes, I would be happy to. We have a number of 
examples where we have sought information that regulatees were 
uncomfortable providing the Commission because they felt that 
if we could not protect it from public disclosure, they could 
suffer serious competitive harm; and that would be public 
disclosure either through FOIA, where Exemption 8 might not 
clearly cover materials and protect them from disclosure, as 
well as disclosure through private litigation.
    That would include, for example, instances where we have 
sought from proprietary trading firms their algorithms for 
trading. Their fear was that their algorithms that they use to 
dictate how they conduct their trading are highly proprietary 
and they would suffer severe disadvantage if that information 
was disclosed.
    We have also had instances where a registered investment 
adviser that manages a number of very large funds refused to 
provide the Commission with details about its quantitative 
trading strategy for fear, again, that the information could 
become public and others could trade against that information 
to the disadvantage of those large funds.
    We have also had instances, in the context of looking at 
insider trading, where firms have been uncomfortable turning 
over to us what they call their watch list. Those are the lists 
that are maintained by investment bankers to track companies on 
which they have insider information to make sure their 
employees are not trading on that information, and there are 
some examples of discomfort in that regard.
    And then a final category would be with respect to the 
provision of internal audit reports that have been done by 
regulatees that they have not wanted to turn over to the 
agency. So sometimes we can't get the information. Sometimes it 
takes a very long time for us to get the information ultimately 
from these regulatees.
    Ms. Waters. Do you have an example of where you have seen 
proprietary information used in a way to advantage a firm or to 
disadvantage a firm with information that you had had in your 
possession?
    Ms. Schapiro. Congresswoman, the issue would be the firm's 
reluctance to give us that information in the first instance 
because if it were made public--a proprietary trading firm's 
algorithms are essentially their trade secrets. It is their 
formula to Coca-Cola. And if that information becomes public, 
then others can trade to the detriment of that firm and its 
intellectual--
    Ms. Waters. So what you are saying is that you have had 100 
percent refusal to give certain information. You have not 
received information that has violated confidentiality.
    Ms. Schapiro. No, not 100 percent refusal, certainly. We 
have had instances where we have had refusals and very long and 
protracted negotiations to try to find a mechanism through 
which these entities would be comfortable giving us the 
information. We do at the end of the day have the ability to 
subpoena the information. But I would really prefer not to see 
our enforcement program, which has so much to do with respect 
to fraud and manipulation and violations of the Federal 
securities laws, turned into a mechanism for suing firms just 
to get the production of documents that, frankly, should be 
produced to us in the course of the routine examination 
program.
    Ms. Waters. Thank you very much.
    Mr. Neugebauer.
    Mr. Neugebauer. Thank you, Chairman, for being here today.
    As I listen to this discussion and I listen to the 
testimony, one of the kind of questions that come up--some 
people say the reason we are here is because of the FOX 
Business News lawsuit. And that was more about what was, I 
think--as I understand it, their inquiry was more about what 
the agency's behavior was in their investigation to these two 
entities and not necessarily about any top secret information 
that you may have requested from these entities. Yet we have 
had a lot of discussion here today about asking these entities 
for more detailed information on their trading models and 
things like that.
    These seem to be two different issues, and can you 
differentiate to me the difference of someone getting 
information on the behavior of the agency as opposed to someone 
getting information on the behavior of a company that the 
agency is overseeing?
    Ms. Schapiro. Congressman, I think there is a difference, 
and I think it is very worthwhile to explore that difference.
    In the FOX litigation, which I should say is before a 
Federal judge who will make the ultimate decision about the 
remaining documents to be disclosed or not, FOX sought tips and 
complaints and referrals that had been received by the agency 
with respect to Madoff. They sought 2004 and 2005 examination 
information, 2006 and present enforcement investigation 
information, and information coming out of our Inspector 
General's investigation of how the agency handled Madoff. Tens 
of thousands of pages of documents have, in fact, been turned 
over in that litigation.
    I agree with you that 929I should not be about shielding 
the Securities and Exchange Commission from accountability for 
its failures or for the actions that it takes, whether or not 
you view them to be failures in any particular context. I would 
say two things about that.
    One is that, in response to Congressman Campbell, nothing 
in 929I prevents Congress from getting complete access to 
everything. It is quite explicit in the provision. Congress has 
full access to the agency for purposes of oversight.
    But in the guidance that we have published that would bind 
our staff, 929I may never be invoked in non-FOIA litigation 
where the agency or the United States Government is a party. So 
I understand and appreciate very much the point that we must be 
accountable not just to you all but to the public and that by 
relying only on FOIA exemptions we think we can do a lot to 
ensure that there is a flow of that information about the 
agency to the public realm.
    The last point I would make is that we do have exemptions 
under FOIA for investigations and to prevent the disclosure of 
material that would interfere with an active investigation or 
ongoing enforcement proceeding. In the Madoff context, there 
are multiple ongoing enforcement proceedings. And so that 
Exemption 7(A) from FOIA has been invoked with respect to some 
of those documents.
    Mr. Neugebauer. And I guess you have heard and you have 
received letters from various members about the concerns about 
your implementation of this and the broadness of it. And you 
have yourself issued guidance on the use of 929I. Is it your 
position that you would support legislative language that would 
clarify and give more specific guidance on this, maybe in 
keeping with even some of your direction that you have issued 
in your guidance?
    Ms. Schapiro. Congressman, I very much would. I think 
codification of the guidance--it limits the agency's discretion 
very dramatically--I think would be a very good step. We are 
very anxious to work with the committee to try to get to the 
right results here. We want great examinations. You want us to 
do great examinations. We also want to protect business' 
ability to have sensitive and confidential information in the 
hands of the government without it necessarily being broadly 
exposed.
    Mr. Neugebauer. I thank you.
    Mr. Chairman, I yield back.
    The Chairman. The gentleman from Texas formulated an 
important question. That is, one option would be to statutize 
the guidance because guidance can come and go; and that, I 
think, is one of the things we should consider.
    I guess there might be some agreement conceptually, but it 
isn't always easy to try to take the concept into reality. That 
is, we all agree--and you, Chairman Schapiro, said so--the SEC 
shouldn't be shielded in any way from the media, from the 
public, from Congress, which it wouldn't be anyway. The only 
question is, is there some concern that if there was nothing 
along these lines you would encounter more resistance in trying 
to get proprietary information? And I guess particularly the 
question would be, if you got proprietary information and there 
wasn't anything wrong, would people have that risk?
    I don't know whether there is agreement on that. I think 
there is, generally. Both sides have understood the importance 
of protecting proprietary information; and, indeed, when we had 
an amendment offered I think in the conference about--I think 
it came from the Senate on the Office of Financial Information, 
there was some concerns on both sides that it was being too 
intrusive in getting private company data. So that is one of 
the things we have to look at. So we can obviously take a look 
at that.
    I do think it is going to be very important here--and I 
know you want to discuss this, and I appreciate that--that we 
hear particularly from the enforcement people. And I think if 
the enforcement people could give us their very specific needs 
on this, that would be very helpful to us.
    Let me also say, we have a couple more weeks. We will be 
talking together across the aisle. I am hoping we can come 
together on something. I think some legislative action would 
definitely happen. The Senate has already talked about this. So 
it would be my hope that by the end of next week, we could get 
some agreement on where we are on all this so that we could 
probably do something on suspension that would be a necessary--
in the final week before we get out and the Senate would so 
that this would be taken care of. So that, as I said, was the 
question about statutizing.
    But let me just say, one other question that has to be 
asked, the concern is that because things are subject--you did 
say, if I heard you correctly, because I was in and out, that 
you would not be invoking this with regard to the litigation 
that FOX has brought, is that correct?
    Ms. Schapiro. That is correct.
    The Chairman. So this will not affect their lawsuit?
    Ms. Schapiro. No, it will not. We have made it quite clear 
in the guidance that where the United States is a party, either 
prosecuting or being sued--it is clear in our guidance, that 
guidance was--
    The Chairman. Has that been clear in whatever court 
processes are going on with regard to the FOX lawsuit?
    Ms. Schapiro. Yes, that is exactly right. About a month 
ago, I directed the staff not to use 929I under any 
circumstances until the Commission could--
    The Chairman. So this is irrelevant to the FOX litigation?
    Ms. Schapiro. Yes, yes.
    The Chairman. I appreciate that.
    Let me ask one last thing, and it might be helpful to the 
argument that you and your predecessors have been making. Are 
there examples of resistance that came from the subjects of an 
investigation because of the concern that through FOIA 
proprietary information would be made public? That would be 
very helpful for us to know. Was this a theoretical fear or 
have you, in fact, encountered this?
    I see Mr. Pitt is here, and I will put him on notice that I 
will be asking him if he can think of any examples of that as 
well because I think that would be very relevant for us.
    Ms. Schapiro. Mr. Chairman, I believe you had stepped out 
of the room, but we have many examples with respect to 
proprietary trading algorithms, with respect to investment 
advisers and fund managers, personal trading records, with 
respect to internal auditor reports; and I would be happy to 
supplement them--
    The Chairman. Where people have resisted giving them to you 
on the grounds that they would be--
    Ms. Schapiro. Yes.
    The Chairman. I apologize. And I should have asked before I 
duplicated.
    The gentleman from California.
    Mr. Campbell. Thank you, Mr. Chairman; and thank you, 
Chairman Schapiro.
    Let me just--on the prior question, I appreciate, as I 
understand it, your agreement that 929I is overly broad and 
would accept some codification of some restrictions in that 
regard, correct?
    Ms. Schapiro. Yes.
    Mr. Campbell. Until that occurs, this guidance that you 
have given can be changed, can be modified, whatever. Would you 
agree that with any changes or modification to this guidance, 
you would inform this committee immediately prior to it--in 
case, as the chairman suggested, we are running out of time on 
the legislative clock this year.
    Ms. Schapiro. I would be happy to do that. And you should 
know, this is Commission guidance. The Commission voted to 
issue it. So it is not just my decree as chairman. But I would 
be happy to notify the committee if there were to be any 
change.
    Mr. Campbell. Okay. Thank you.
    One question. Now this would be out of the purview of this 
committee. This would have been the Government Oversight 
Committee because of FOIA. One of the things you mentioned in 
your guidance that you issued yesterday is a lack of a 
definition of financial institutions. Is that something that 
Government Oversight should be looking at, a better or a 
complete definition of financial institutions for FOIA?
    Ms. Schapiro. I believe that it is undefined. It has 
generally been defined by reference to the government in the 
Sunshine Act, I believe, but it doesn't include in that list 
all of the, for example, new entities the SEC will have 
responsibility for regulating, such as municipal advisers or 
some, like credit rating agencies, which have never been found 
by a court to be a financial institution. It could be defined, 
I suppose, with a longer list or it could be defined to say 
that regulated entities which are examined by the Securities 
and Exchange Commission are financial institutions.
    Mr. Campbell. Right. Because there could be new regulated 
entities 2 years from now that don't exist today, entities that 
we don't even know about at the moment.
    Ms. Schapiro. Exactly.
    Mr. Campbell. As has been discussed, we are here because of 
the FOX Business Network lawsuit pending, and to what extent I 
don't know, because of the lawsuit. But it does appear, 
certainly to this Member and I think to other Members, that 
withholding information on the Stanford and Madoff entities is 
hard for us to understand, why that is a proprietary or 
confidential issue.
    Ms. Schapiro. Congressman, I understand that concern. And I 
will say that, while we could have withheld many documents, we 
have turned over tens of thousands. And a judge will obviously 
make the ultimate decision about whether additional documents 
should be turned over.
    But there is ongoing litigation with respect to Madoff and 
Stanford, and we are only relying--I should be very clear--on 
existing FOIA exemptions to withhold any information in the FOX 
litigation. But there is information that has the potential to 
impact the ongoing investigation of parties related to Madoff 
that we think is important for us to protect until such time as 
that litigation is concluded, and then I would imagine many 
more documents will be released.
    Mr. Campbell. Okay. I guess I am still trying to 
understand. So, initially, was 929I used to deny release of 
documents and then now you have released more by using the 
previous or existing--I am just trying to understand how this 
works.
    Ms. Schapiro. My understanding is that we originally relied 
upon existing FOIA exemptions and only existing FOIA 
exemptions. My understanding is also that we have never filed 
anything with the court or officially presented to the court 
929I as an additional basis for withholding documents. But it 
was, I understand--and, again, I wasn't there--discussed in a 
conversation between FOX and SEC lawyers and potentially a 
clerk of the judge that 929 could conceivably be an additional 
basis for withholding of documents.
    That was before I directed the staff not to invoke 929I. 
That is what brought it to all of our attention, as the 
chairman suggested, but it has never been put into a pleading 
or officially put before the court. We are not relying on 929I 
now as this litigation continues. We are relying only on 
existing FOIA exemptions, as we have all through this 
litigation.
    Mr. Campbell. Okay. One final question in my last seconds 
here related to something that Ranking Member Issa mentioned, 
that 87 percent of FOIA requests have been denied by the SEC. I 
presume that is your chairmanship, prior chairman, a number of 
chairmen, I presume. That does seem like a very high number. Is 
that because of a lot of--would you like to explain?
    Ms. Schapiro. We are a bit unusual with respect to FOIA. 
For example, we have had over 10,000 FOIA requests this fiscal 
year at the SEC. I will tell you that the FDIC, the Federal 
Reserve Board, and the CFTC combined had about a third of that, 
3,500 in Fiscal Year 2009.
    Mr. Campbell. Had a third of those requests?
    Ms. Schapiro. A third as many requests. Those three 
agencies had about 3,500. We have over 10,000. Approximately 70 
percent of our requests come from commercial vendors of 
information--who are seeking information for due diligence 
purposes or to repackage and sell in another context, which I 
think is very interesting. And 75 percent of those requests 
find no information. So that is by far the largest percentage 
of our FOIA requests. There is just simply no information found 
because of--
    Mr. Campbell. So you are actually not denying anything. 
It's that you are complying with the request. There is just 
nothing there?
    Ms. Schapiro. Right. So perhaps the statistics in the best 
light for the Securities and Exchange Commission, 79 percent in 
Fiscal Year 2009 were either granted in full or no information 
was found, but 64 percent of that was no information found. 
Twelve percent of requests were denied in full or in part.
    The other reason I think we have the higher denial rate, 
quite honestly, than other agencies is our law enforcement 
function, and by far the most used exemption by the SEC is 
Exemption 7, which goes to law enforcement activity.
    Mr. Campbell. Thank you.
    The Chairman. The gentleman from North Carolina.
    Mr. Watt. Thank you, Mr. Chairman; and Madam Chairman, I am 
sorry I had to miss your testimony. I have two really wonderful 
hearings going on in my two committees at the same time, this 
committee and the Judiciary Committee, which is sharing 
something on digital competition in the digital world. It is 
extremely exciting, and I thought I wanted to go over there and 
hear that testimony.
    I just have one question. I, for the first time, have seen 
this May 18, 2010, report of the Committee on Oversight and 
Government Reform since I don't sit on that committee, and it 
seems to be a rather scathing indictment of the SEC in a number 
of respects, and I was wondering whether there are any specific 
parts of the findings of that you would dispute vigorously or 
you think are overstated or is it generally true when you came 
in and are these issues being addressed?
    Ms. Schapiro. Congressman, that is a minority staff report, 
which I have to say I read when it was released, but it has 
been several months. So I would be hard pressed, I think, to 
give you specifics, although I would be happy to do that for 
the record.
    I will say that I think it doesn't recognize extraordinary 
changes at the SEC over the last 18 months, and while we have a 
long way to go in terms of rebuilding our culture, ensuring 
that our focus is always on market integrity and investor 
protections, we have made a lot of changes that respond to the 
specifics that are raised in that report.
    And you have heard me testify many times about the post-
Madoff reforms, the post-Stanford reforms, the failure of the 
consolidated supervised entity program, the bankruptcy of 
Lehman Brothers and others, the lessons the SEC learned from 
those and the actions that we have taken with respect to new 
leadership throughout the agency, new training, new skill-sets, 
and new regulatory programs, where appropriate, to deal with 
these kinds of issues and problems. We have really left no rock 
unturned to try to make sure that this agency is one that the 
American public can rely upon.
    But with respect to specifics in that report, I would be 
more than happy to provide something for the record. As you can 
imagine, I don't agree with some of the characterizations.
    Mr. Watt. Thank you for doing that, and I would ask you to 
do that.
    I am happy I asked the question because you call to my 
attention that it is the ranking member's report, the minority 
part of the committee's report, rather than the Committee on 
Oversight and Government Reform. It is probably not even 
advertised well because it says right at the top, ``U.S. House 
of Representatives Committee on Oversight and Government 
Reform'' in great big letters, and then it says right under 
that Darrell Issa, California 49, Ranking Member. It seems to 
me if Mr. Issa were going to do a report, he could at least 
caption it appropriately.
    So I would welcome your responses so that we can get a 
clear picture of not so much what the history of the SEC has 
been but what changes are being made to make it a more 
effective advocate for consumers and protector of the public.
    So, with that, Mr. Chairman, I didn't hear the testimony, 
so I yield back the balance of my time.
    The Chairman. The gentleman from Florida.
    Mr. Posey. Thank you, Mr. Chairman.
    Madam Chairman, I wonder if you could share with us--we 
have talked about the denials of the FOX request--exactly what 
was requested and exactly why it was denied.
    Ms. Schapiro. I would be happy to do that. I would like to 
not be incomplete, though, in my response. So I would prefer to 
do that for the record.
    I can tell you generally, at the risk of leaving something 
out, that they sought tips and complaints--what happens we call 
TCRs--tips and complaints and referrals--with respect to Madoff 
conduct prior to his--I believe all of him, not just prior to 
his arrest, 2004 and 2005 examination reports, information with 
respect to the 2006 present enforcement investigation, and then 
materials surrounding the Office of the Inspector General's 
investigation, but I don't want to represent to you that is 
everything. I would need to do that for the record.
    Mr. Posey. Could you give me an example of how that might 
interfere with any current proceedings now, even hypothetically 
if you want to? That sounds like a very reasonable request to 
me.
    The case is closed. The SEC did nothing. Nobody was 
punished. We don't even know where all the people were who 
screwed up now. I asked you that last time. You couldn't tell 
me. Give me an example of why we need to protect this 
proprietary information.
    Ms. Schapiro. Congressman, first of all, you should know we 
have turned over tens of thousands of pages in response to this 
request; and a Federal judge will make the decision whether, 
under existing FOIA exemptions, the SEC has appropriately 
withheld additional information.
    I can imagine that there could be information with respect 
to related parties to Bernard Madoff Investment Securities that 
may well be subject to investigation and ongoing enforcement by 
the Securities and Exchange Commission or the United States 
Attorney's Office that would not be in the interests of those 
investigations and actions to be disclosed. But that is a 
hypothetical, because I don't know the specific answer to that. 
I would be happy to try to provide that to you.
    Mr. Posey. It just seems like they are asking for records 
that are over 4 years old, and as old as how old are some of 
the records they are asking for?
    Ms. Schapiro. Again, I don't know the very detailed 
specifics of their request, but there is no question that these 
date back a number of years. But, again, many tens of thousands 
of documents and pages have been--
    The Chairman. Would the gentleman yield?
    Mr. Posey. Yes.
    The Chairman. Chairman Schapiro, a piece of advice. When 
someone asks you why you haven't turned over anything, the fact 
that you turned over 10,000 is not a good answer. Quite 
frankly, it sounds like the lawyers kind of cooked up an answer 
for you. Let me just give you my advice. It's like all the days 
you didn't rob anybody--not that you robbed anybody. The fact 
that you turned over pages is no answer to the gentleman's 
question.
    The other thing I would say is this: The fact that a judge 
will ultimately decide it doesn't answer the question, because 
the judge isn't preventing you from doing it. So, again, you 
may have other reasons.
    I would just recommend--the question was, why not turn 
these over? The fact you have turned over other things is not 
in issue or that a judge may make you turn them over doesn't go 
to your rationale for not turning them over.
    Ms. Schapiro. I should say, Mr. Chairman, I have a bias--we 
have a bias towards turning over anything that we can. There 
are ongoing law enforcement investigations by the Securities 
and Exchange Commission and the United States Attorney's Office 
with respect to individuals and entities associated with 
Madoff, and I believe that--
    The Chairman. If the gentleman would yield again, that gets 
right to the point I think the gentleman was saying.
    Let me make this proposal to my colleagues. That is, next 
week would you be willing to conduct a confidential briefing, a 
members-only briefing that might give some more specifics about 
some of this? I think that would be very helpful, and members 
who wanted to go could go. If you could agree to do that and 
get back to us, I think that would be very helpful where you 
could discuss some of this information.
    The idea there might be some constraints legitimate but not 
to FOIA, then that would be undercut by talking about it here. 
But I think if you were able to do your--enforcement people 
could do a members-only briefing next week, that might be 
helpful.
    The gentleman has an additional 2 minutes.
    Mr. Posey. Thank you very much, Mr. Chairman. That would be 
very helpful.
    I have had a little bit of experience with government 
agencies over the years. Usually, they want to avoid any 
sunshine to protect incompetency, not to really do the more 
upscale performance that you have suggested. And I am not 
suggesting that yours is going to protect any unknown 
incompetency any further, but that has just been historically 
why I have seen agencies stonewall letting documents go to the 
press. And I guess every member of this committee has made it 
very clear and have been fairly passionate about the need to 
have transparency in government. So I would be interested in 
having the questions answered in private, as the chairman 
suggested, if necessary.
    And I would also just be curious to know, if the agency's 
call was wrong in withholding information that should be 
public, what are the consequences? What are the penalties for 
the employees who made that bad call?
    Ms. Schapiro. The staff makes the decision based on 
expertise and guidance and counsel from the General Counsel's 
office about whether or not information needs to be disclosed. 
We don't punish people if they made a wrong call about whether 
a document could legitimately be held under a Freedom of 
Information Act exemption. If somebody had a pattern of making 
bad calls or judgments, we would have to take that into 
consideration in performance evaluation--
    Mr. Posey. I think I got my answer. Just like the Madoff 
scandal, nobody has even had their wrist slapped.
    I think that maybe when we look at reforming the agency, we 
might want to put a little personal responsibility and 
accountability there for that. Right now, if there's no penalty 
whatsoever for making bad calls--and if anyone has ever been 
disciplined by the SEC, I would like to know about it because I 
haven't yet. I have read some books. I have read all I could on 
the issue. I heard the supervisors testify. I have heard the 
Secretary testify. Nobody has been punished yet about the 
Madoff mishandling. We don't even know where those people are 
now, the two to three dozen examiners and investigators who 
blew the whole thing, and I was under the impression you were 
going to find out for me and let me have that information, but 
I haven't received it yet.
    But I think what everybody is alluding to is we just want 
to see some accountability. That is what this whole thing is 
about. And, as the chairman said, we ask an agency head what 
time it is and they start describing the clock till our time 
runs out. I just wish we would stop some of the game playing 
and just be kind of frank and forthcoming with this stuff.
    Thank you, Mr. Chairman, for the extra time.
    The Chairman. The gentleman from Kansas.
    Mr. Moore of Kansas. Thank you, Mr. Chairman.
    Chairman Schapiro, you mentioned in your testimony that on 
September 25, 2009, the SEC's Inspector General issued a report 
entitled, ``Review of the SEC's Compliance with the Freedom of 
Information Act.'' That report contained 10 recommendations 
with respect to strengthening FOIA, most of which the SEC 
concurred with. Two questions.
    First, when you became the Chairman of the SEC, were you 
aware of these problems with respect to FOIA compliance or was 
the IG report the first time you were made aware of these 
problems?
    Second, you also mentioned one remaining item from that 
report that has yet to be resolved. What is the issue and why 
has that not been resolved yet?
    Ms. Schapiro. Congressman, the Inspector General report, as 
you point out, was issued in September of 2009; and within a 
few weeks after its issuance, I hired a new Chief Freedom of 
Information Act Officer with deep experience in this area.
    As you say, the IG made 10 recommendations. Nine have been 
closed out to the satisfaction of the Inspector General. The 
one that remains open relates to developing new performance 
standards for employees in the Freedom of Information Act 
office, and we are working on that. It is not resolved only 
because it actually would require negotiation with the SEC's 
union in order to do that.
    Mr. Moore of Kansas. Okay, very good. Thank you. I yield 
back.
    The Chairman. The gentleman from Texas, Mr. Hensarling.
    Mr. Hensarling. Thank you, Mr. Chairman.
    Forgive me, Madam Chairman, I missed your testimony, so we 
may cover some old ground here.
    I understand that you have previously stated--perhaps you 
stated in your testimony that 929I is necessary or helpful 
because it eliminates uncertainty. Is that correct?
    Ms. Schapiro. Yes.
    Mr. Hensarling. As I understand it, the Commission's 
guidance says that, ``The Commission should make disclosures 
where permitted by law when the need for confidentiality is 
outweighed by the public's interest and accountability and 
transparency.''
    So I guess my first question is, if the Commission still 
reserves the right to disclose information whenever it decides 
that the public has this interest and accountability and 
transparency, how is it that regulated entities achieve a 
greater level of certainty then with 929I?
    Ms. Schapiro. Because I think regulated entities with whom 
we work on a daily basis understand that the Commission 
appreciates the competitive harm that can come from something 
like disclosure of a high frequency trader's algorithm. So they 
have a higher level of comfort that the agency, as an expert in 
these kinds of matters, will in fact understand the potential 
damage from certain kinds of disclosures.
    Mr. Hensarling. I'm not sure I still understand. I am still 
confused by the nexus to 929I, though.
    Ms. Schapiro. It is not ironclad in the sense that, yes, 
just like under FOIA, FOIA doesn't prohibit you from disclosing 
anything. It gives you the ability to not disclose certain 
kinds of information. So, yes, you are right in the sense that 
the agency has discretion in many areas to continue to disclose 
even where there might be an applicable FOIA exemption.
    Nonetheless, as I said, regulated entities trust that the 
agency understands that to produce a list of holdings by a 
hedge fund or a mutual fund or to produce a trading algorithm 
that would allow someone to trade against that firm's interests 
would be potentially devastating to those entities and that the 
agency wouldn't do it.
    Mr. Hensarling. Fairly basic question. In years going back, 
Congress has increased the authority of the SEC in a number of 
areas including the authority to compel registered entities to 
provide information and records. So, number one, clearly under 
the 1934 Securities and Exchange Act, I am under the impression 
you already have the power to subpoena witnesses to require the 
production of records from registered entities. I understand if 
they fail to comply, you have the authority to impose monetary 
penalties. You can refer the cases to DOJ, and I am just trying 
to figure out why is it that 929I is needed or is it needed to 
somehow convince registered entities to cooperate? What does it 
add to the mix?
    Ms. Schapiro. Congressman, I can tell you that we have 
examples where registered entities have refused or held up 
dramatically our examinations by not giving us information.
    We could use a subpoena. There is no question about it. I 
don't actually think they would prefer to get a subpoena. I 
actually think they would prefer to voluntarily produce 
information or produce information pursuant to our examination 
authority with the understanding that it can be protected 
rather than actually require us to go and sue them, leading to 
all kinds of additional issues for that entity.
    I also don't think it is the best use, honestly, of the 
SEC's enforcement resources to spend a lot of time having to 
pursue regulated entities to give us documents that they 
frankly should be giving us under our examination authority. I 
think you all and we would rather have our enforcement staff 
out there looking for fraud and prosecuting violations of 
securities laws.
    I know, and I think you will hear on a later panel, that 
lawyers counsel their regulated entity clients to try to always 
cooperate and provide information to the SEC and that will be 
easier to do if there's a higher level of comfort that we can 
protect that information from disclosure to their creditors.
    Mr. Hensarling. My time is about to run out. That's prior 
to my arrival here. Some of the legislation that deals with 
this has been discussed. Can I assume that you are familiar 
with H.R. 6086, Chairman Towns' legislation, which appears to 
not be a straight repeal? Are you familiar with his 
legislation?
    Ms. Schapiro. Yes, Congressman, and he was here, actually.
    Mr. Hensarling. Sorry I missed that portion.
    Can you comment briefly on your opinion of his legislation.
    Ms. Schapiro. Sure. It would repeal 929I, but it would add 
a provision which we think is quite important, making it clear 
that under FOIA Exemption 8, any entity that was regulated and 
examined by the SEC is considered a financial institution.
    I think where it is not as helpful is in the context of 
third-party litigation, where two parties, private parties, are 
suing each other, serve the Securities and Exchange Commission 
with a subpoena to get information about each other that is 
potentially competitively damaging, and we don't have the 
capability without 929I to have a relatively high level of 
assurance that we would not have to disclose that information. 
I do believe that is an issue we can resolve.
    The Chairman. I am told, by the way, that the Senate 
Judiciary Committee has voted out by voice vote a bill that is 
very close to the Towns bill. And I have previously said, I am 
asking everybody now, let's think about this; and by the end of 
next week I am hoping we might be able to come to a consensus 
here so it will give us enough this week to act on something.
    The gentleman from Texas, Mr. Green. We have some votes, 
but it now looks to me we only have two more members after 
this. We'll be able to finish with you and then go to the votes 
and then come back for our third panel. Mr. Green.
    Mr. Green. Thank you, Mr. Chairman; and thank you, Madam 
Chairman, for appearing today.
    I am a person without a made-up mind as to what the remedy 
is, and I would welcome your testimony because the intelligence 
that you are quoting us is going to be very helpful.
    I would like to make a comment and receive your response, 
if I may. You have mentioned the ongoing investigation 
exception, but what we haven't said and perhaps it is assumed 
but hasn't been said is simply this, that exception exists 
because persons who are being investigated have a way of 
allowing their factual circumstances to metamorphose. They 
don't remain static. They are somewhat dynamic. And as they 
receive information about what you may have, they can sometimes 
conform their defense, if you will, around what they know your 
offense can produce. Is that a fair statement, that the ongoing 
investigation exemption is to allow you to effectively 
prosecute, if you have to?
    Ms. Schapiro. That is absolutely right. There is one part 
of Exemption 7 that is geared toward protecting law enforcement 
techniques. In our case, it would be how we look at certain 
kinds of trading information and sift through it to find 
particular patterns of trading or practices. But there is an 
exemption that specifically contemplates that law enforcement 
needs to be able to protect some of its techniques from 
disclosure.
    Mr. Green. And with reference to proprietary information, 
this is a highly competitive industry that you regulate, and 
every edge that you have as a businessperson you want to 
protect to the extent that you can, and competitors will 
sometimes want to acquire the information that they can about 
your edge so as to negate your edge. And proprietary 
information, simply put, as I am understanding it today, is to 
protect the edge that you have as you try to compete in a 
highly competitive market. And if there is a way to acquire 
information about that thing that helps you to succeed, others 
will co-opt it and use it. Perhaps it won't hurt you, but it 
could also work to your detriment for this to be utilized by 
your competitors. Is that a fair statement?
    Ms. Schapiro. That is fair.
    Mr. Green. So you are trying to protect proprietary 
information. You are trying to protect ongoing investigations 
so that they can be effectively prosecuted, and, in so doing, 
you are trying to balance this need of the public to know about 
these things, and there is something called judicial 
determination. When you reject a request, there is an 
opportunity to have a disinterested third party, known as a 
judge, to look at it and say either you made the right call or 
you made a bad call; is that a fair statement?
    Ms. Schapiro. That is fair.
    Mr. Green. Is that process lengthy? And I want you to be as 
candid as you can be. I know we all have our biases. But is 
that a lengthy process to the extent that it is seen as a means 
by which persons simply go into some never never land and they 
never get the results that they want?
    Ms. Schapiro. I don't know the specific answer to that. I 
have no doubt that it is a process for sure and that there are 
costs associated with having to appeal a FOIA denial to a 
Federal judge; and so, as a result, I think our bias should be 
that wherever we can, we should release information unless it 
is going to clearly fall within one of the existing FOIA 
exemptions or cause real commercial harm to an entity.
    Mr. Green. Thank you.
    With my final seconds, 10,000 requests so far this year. 
How many people do you have working on just managing these 
requests? It seems to me that takes an inordinate amount of 
personnel and you have to have support systems. Talk about 
that, if you would, briefly.
    Ms. Schapiro. We have 30 people in the Freedom of 
Information Act Office, but they also call upon people 
throughout the agency to actually do the searches for documents 
within each division or department to make sure that we have 
covered everything.
    We have some technology. One of the recommendations of the 
Inspector General was to improve our technological capacity to 
handle FOIA requests, and we have taken a number of steps in 
that regard, to the satisfaction of the Inspector General.
    We stepped up dramatically in the last year our training of 
employees so that they have the latest techniques in order to 
handle this just extraordinary, I think by comparison--
    Mr. Green. Thank you. My time has expired. Thank you.
    The Chairman. The gentleman from Missouri.
    Mr. Cleaver. Thank you, Mr. Chairman.
    I have just one question. I am concerned about repealing a 
law that has only been on the books for a minute or two. Do you 
believe that we have had enough time to evaluate it or do you 
think we need more time for evaluation?
    Ms. Schapiro. Congressman, I think it is a fair argument 
that 929I as drafted is broader than it needs to be to protect 
the information we believe needs to be protected, which is why 
we issued guidance that we think really hits the right spot. It 
relies on existing FOIA exemptions, except with respect to 
whether something has been determined to be a financial 
institution. There was a little coverage there, and it helps us 
in the third-party litigation context. I think that is the 
right place for us to be, and whether Congress is satisfied 
that we have binding guidance, as we do on our staff, or feels 
the need to amend the law to achieve the same result, that is I 
think a judgment call for all of you. We really stand ready to 
help get that done.
    Mr. Cleaver. So no comment. Thank you.
    The Chairman. The timing is good. Chairman Schapiro, thank 
you. You have been very helpful. The guidance is helpful, and 
your responses as well.
    I would urge you to think about a confidential briefing. I 
think that would be very much in your interest because I think 
members are not close-minded on this, but they want to ask 
questions. And I would say, in my experience, the discretion of 
members of this committee can be trusted. We have not had 
confidential information inappropriately shared.
    We are going to recess now and come back for our first 
panel. There are three votes. The first one will take about 20 
minutes, and the second one will take 5 minutes. I would say in 
about a half hour we should be able to be back. So witnesses 
can take a break, if they want to get a bite to eat or 
something, but we will be back here in about a half hour, and 
we will begin immediately with our next panel. We are in 
recess.
    [recess]
    The Chairman. We will reconvene. I apologize to the 
witnesses for this delay, and we will begin with Mr. Pitt.

  STATEMENT OF THE HONORABLE HARVEY L. PITT, CHIEF EXECUTIVE 
                OFFICER, KALORAMA PARTNERS, LLC

    Mr. Pitt. Chairman Frank, members of the committee, I am 
pleased to have this opportunity to testify regarding Section 
929I of Dodd-Frank and pending legislative proposals that would 
modify or eliminate it. My views are solely my own and don't 
represent the views of any client. With the committee's 
permission, I will only briefly summarize my written testimony.
    The Chairman. You may do that at the committee's 
encouragement, Mr. Pitt. Any documents, statements, or 
supporting material that any of the witnesses wish to be 
submitted will be, without objection, made a part of the 
record.
    Please go ahead.
    Mr. Pitt. Thanks.
    I start with the belief that there is and should be a 
strong presumption in favor of ensuring the accountability and 
transparency of government agencies and their decision-making. 
But Section 929I, particularly as it has been interpreted, does 
not vitiate SEC transparency or accountability. Rather, I 
believe it was intended as a necessary tool to permit the SEC 
to be as effective and efficient as it can be in performing not 
only its existing functions but the myriad of new functions 
that have been assigned to it in under Dodd-Frank.
    The Commission gathers a wide range of proprietary and 
confidential information from those it directly regulates. To 
perform effectively, it has to obtain information rapidly, with 
a minimum of effort and contest. Section 929I was intended to 
permit the Commission to do that, as bank regulators have done 
for decades.
    Persons who are fearful of improper disclosure of their 
proprietary or confidential information work assiduously to 
limit or condition the SEC's prompt receipt of information, as 
well as condition the terms on which the SEC receives it. I 
know this because I used to represent such persons when I was 
practicing law.
    Once the SEC obtains information, corporate competitors and 
creditors try to wrest that information from the SEC to use 
against those who have entrusted their sensitive data to the 
agency. Section 929I enables but does not compel the SEC to 
prevent those kinds of injustices from occurring. To the extent 
that there are concerns about its breadth, the SEC's guidance 
yesterday should allay those concerns.
    There are two principal ways in which proprietary data may 
be sought from the SEC, either through the FOIA or through 
nonFOIA means such as litigation, subpoenas, or discovery 
demands. 929 clarifies the reach of two existing FOIA 
exemptions and it is critical, given the new classes of 
entities the SEC is charged with regulating and overseeing. 
With respect to non-FOIA demands, the SEC is given an 
equivalent of the bank examiner's privilege that bank examiners 
have long enjoyed.
    I believe that the provision clearly prohibits the 
Commission from withholding information from Congress, as it 
should; and it would not shield, particularly as interpreted, 
materials necessary to determine how the SEC is doing its job. 
It enables the Commission to preserve confidentiality of 
private sector companies' sensitive data if making that data 
public would inflict unfair harm.
    The SEC's issuance yesterday of guidance, in my view, is an 
example of government operating at its best. The guidance is 
binding on the Commission and its staff and makes perfectly 
clear that the new provision would be administered 
intelligently and fairly and not as some automatic barrier to 
disclosure.
    The committee's invitation asked for responses to a number 
of questions, and the only one that I would just single out 
here is that the current bills that are pending which attempt 
to either repeal 929I or otherwise limit the SEC's abilities I 
think raise some problems. What we really need, if there's 
going to be an adjustment, is a carefully constructed approach 
that is comparable to the SEC's guidance, and I believe that as 
interpreted by the SEC, Section 929I will be only a useful but 
not an abused tool in the SEC's arsenal to obtain necessary 
data.
    Thank you.
    [The prepared statement of Mr. Pitt can be found on page 
114 of the appendix.]
    The Chairman. Next, Angela Canterbury, director of public 
policy for the Project on Government Oversight.

  STATEMENT OF ANGELA CANTERBURY, DIRECTOR OF PUBLIC POLICY, 
                PROJECT ON GOVERNMENT OVERSIGHT

    Ms. Canterbury. Chairman Frank, Ranking Member Baucus, and 
members of the committee, thank you for inviting me to testify 
today and for your willingness to revisit this issue. I am the 
director of public policy at the Project on Government 
Oversight (POGO).
    POGO has a keen interest in ensuring the public can hold 
our financial regulators accountable for protecting the 
interests of taxpayers, investors, and consumers. This is why 
we are deeply concerned about Section 929I of the Wall Street 
Reform and Consumer Protection Act.
    Section 929I would provide the Securities and Exchange 
Commission with an unnecessary and overly broad exemption to 
the Freedom of Information Act and a blanket authority to 
withhold records. It strips protections of due process 
currently in place and gives the Commission an accountability 
shield that is not in the public interest. Indeed, limiting 
disclosure of public information should not be done lightly, 
and the burden should be on the SEC to show very compelling and 
specific need. With all due respect to Chairman Schapiro, they 
have not yet done so.
    Although we fully understand the need to protect against 
disclosure of certain confidential information collected by 
regulators, preexisting FOIA exemptions are more than adequate. 
In fact, the concerns raised by registered entities and the SEC 
seem very inconsistent with reality.
    The courts have strongly censured the SEC for 
nondisclosure, and last year an audit conducted by the SEC's 
Office of Inspector General determined that the SEC practices 
create a presumption of withholding in spite of the President's 
mandate for a presumption in favor of disclosure. The OIG also 
found that the agency's FOIA release rate was significantly 
lower compared to all other agencies.
    But, today, Chairman Schapiro said it all when she said we 
have a bias toward turning over anything we can. Notably, 
today, she could not come up with one instance in which 
confidential information business collected by the SEC has been 
revealed to the public through FOIA or litigation.
    The public stakes in more, not less, transparency and 
accountability at the SEC cannot be overstated. American 
families continue to suffer from the financial crisis created 
in part by systematic regulatory failures. The SEC claims to 
need 929I so that it can more effectively obtain records, 
police Wall Street, but the SEC's failures, most notably its 
botched investigations of the Madoff and Stanford Ponzi scheme, 
had to do with enforcement, not availability to collect 
records.
    On the other hand, if the serious problems with the 
agency's operations exposed by these and other scandals are 
kept hidden from the public, as 929I allows, the SEC will not 
be held accountable.
    In one recent case, former SEC enforcement attorney Gary 
Aguirre was able to use FOIA to prove the agency had retaliated 
against him and bungled his investigation of insider trading at 
Pequot Capital Management. He eventually used these records to 
force the SEC to reopen the case, leading to a $28 million 
sanction and vindication for Mr. Aguirre's wrongful 
termination.
    We understand that the Commission's job is made more 
difficult when registered entities refuse to cooperate, but we 
are not convinced that the agency is uniquely burdened, nor is 
it lacking in the power of subpoena or the ability to levy 
penalties. We do not believe it is necessary to expand 
Exemption 8 either, but if Congress shares the Commission's 
concern that certain newly regulated entities may not be 
considered financial institutions, then it might be appropriate 
for Congress to make that clarification. In any case, because 
it is already aggressively applied, Congress should examine 
Exemption 8 and apply clear standards for employing it.
    Also, we do not believe that it is in the public interest 
or in the services of the Commission's core mission to give the 
agency extraordinary authority to refuse subpoenas from civil 
litigants as the SEC guidance does. Why should defrauded 
investors, whistleblowers who suffered retaliation, the media 
seeking to uncover corruption, or any other party be denied 
access to public documents that might make the difference in 
exposing corporate malfeasance or holding the agency 
accountable?
    Again, the SEC has not demonstrated a real need. In fact, 
it already is very difficult for a civil litigant to enforce a 
subpoena on a Federal agency. The SEC has many tools at its 
disposal for quashing subpoenas and can already warn registered 
entities if confidential information might be disclosed in a 
subpoena. The decision about whether or not a subpoena should 
be enforced should be made by the courts on a case-by-case 
basis as is the norm, not by the SEC. For this reason, we do 
not support the SEC's guidance in this area.
    In any case, we do not believe the agency guidance is 
sufficient to allay concerns of the public's interest since it 
can be changed with no public notice, oversight. Nor is the 
agency discretion appropriate for Exemption 3 or subpoena 
refusal, particularly this agency's discretion.
    So we concede there is some agreement to codify the changes 
to 929I, but the solution is to re-ring the bell, as 
Representative Issa said today, not codify the agency's 
guidance, which is another accountability shield. We urge you 
to pass H.R. 6086, H.R. 5924, or similar legislation to repeal 
this blanket secrecy provision, and I invite you to review our 
other recommendations calling for additional examination of 
Exemption 8 and follow-up of the audits by the OIG.
    I thank you very much.
    [The prepared statement of Ms. Canterbury can be found on 
page 57 of the appendix.]
    The Chairman. Next, Rick Blum, who is the coordinator of 
the Sunshine in Government Initiative.

  STATEMENT OF RICK BLUM, COORDINATOR, SUNSHINE IN GOVERNMENT 
                           INITIATIVE

    Mr. Blum. Mr. Chairman, thank you for the opportunity to 
testify today. I especially want to thank you for holding this 
hearing.
    I testify today on behalf of the Sunshine in Government 
Initiative, a coalition of media associations promoting 
transparency in the Federal Government. We would like to 
emphasize four points. First, the statute as written is too 
broad. I think we have heard that today. Second, only an act of 
Congress can fix this problem. Third, the approaches pending 
before Congress to fix 929I would be better than no action at 
all. And, fourth, Congress should strengthen the disclosure and 
review of proposed statutory exemptions to FOIA.
    As you have already heard, under 929I, the Commission could 
exempt from disclosure any information about official business, 
including its approach to oversight and supervisory information 
having nothing to do with trade secrets. Simply put, the 
statute gives too much discretion to the SEC to decide what 
should be disclosed or withheld, a key factor the courts look 
at in FOIA Exemption 3 cases.
    Even with 929I, the sought-after cooperation from private 
entities may continue to be elusive. For example, one 
influential firm reacted to Dodd-Frank by telling firms to 
stamp confidential on documents they used to freely turn over 
to the SEC. For these and other reasons I identify in my 
written testimony, we believe 929I is overbroad and Congress 
should take action.
    Second, only an act of Congress can remedy 929I's flaws. 
Even the most disclosure-friendly guidance is no substitute for 
congressional action. We have seen agencies interpret statutory 
exemptions to FOIA as broadly as they see fit once they have 
the discretion. The lesson's clear: Over time, when Congress 
writes broad exemptions, the government broadly uses them.
    Turning to solutions, either repealing 929I or expressly 
applying Exemption 8 to FOIA to the SEC and the firms it 
oversees would improve the status quo. It is important to 
provide clarity, not breadth. Exemption 8 has its own flaws. 
Chiefly, it is broad as well. But this approach avoids enacting 
broad ad hoc exemptions like 929I.
    On the issue of third-party subpoenas, the SEC's position 
could significantly hinder open judicial proceedings, and the 
issue deserves closer scrutiny. These issues should not be 
taken up lightly but publicly, deliberately, and separately 
from the FOIA discussion.
    I want to use my remaining time to note one reason this 
hearing is being held today. This controversy arose because the 
process that Congress uses for proposing statutory exemptions 
to FOIA is flawed, leading repeatedly to imprecise or overbroad 
or redundant legislation. This committee fell victim, in a 
sense, to this weakness.
    In the meantime, by our account, Federal agencies have used 
over 250 Federal laws over the last decade to deny FOIA 
requests. That is in addition to FOIA's categories that exempt 
from disclosure things like trade secrets or classified 
information. 929I is just one of these secrecy statutes. 
Sometimes the purpose of these exemptions is understandable. 
Other times it is not. Why protect the identities of honeybee 
handlers or watermelon growers?
    Congress should take modest, feasible steps to strengthen 
how these proposals are considered, such as enforcing the open 
FOIA Act of 2009 which requires all proposals to cite FOIA's 
Section (b)(3), promoting disclosure in searchable form at the 
time these proposals are introduced, routinely referring 
Exemption 3 proposals to the Oversight and Government Reform 
Committee which has oversight of FOIA, as we know, for brief 
review, or showing new Exemption 3 statutes are necessary and 
existing statutes are inadequate.
    These feasible steps can avoid needless litigation and 
congressional controversy by reinforcing our democracy's 
promise that the public should know what the government is up 
to.
    To conclude, Mr. Chairman, journalists tell us they are 
chiefly concerned that the language in 929I is too broad and 
only an act of Congress can fix this problem. We look forward 
to working with this committee to improve both this provision 
and the way Congress handles such secrecy provisions in the 
future.
    We appreciate this opportunity and look forward to your 
questions. Thank you.
    [The prepared statement of Mr. Blum can be found on page 48 
of the appendix.]
    The Chairman. Mr. Steven Mintz.

 STATEMENT OF STEVEN G. MINTZ, FOUNDING PARTNER, MINTZ & GOLD 
                              LLP

    Mr. Mintz. Good afternoon, Chairman Frank, Ranking Member 
Bachus, and members of the committee. My name is Steven Mintz. 
I am the founding partner of Mintz and Gold. Thank you for 
inviting me to testify on this important issue.
    During the past few years, I have served as lead counsel on 
a number of Freedom of Information Act lawsuits against the 
Federal Reserve, the Department of the Treasury, and the 
Securities and Exchange Commission; and I have been successful 
in forcing the Treasury to produce documents related to the AIG 
and Citigroup bailout and to force the SEC to produce documents 
related to the failed investigations of Bernard Madoff and R. 
Allen Stanford.
    Section 929I of the Dodd-Frank Act has an unintended 
consequence of weakening government transparency. Section 929I 
gives the SEC unreviewable control over the information it has 
to share with the public and is directly contrary to the 
transparency goal of the Dodd-Frank Act.
    FOIA was enacted in 1966 with the notion that a democracy 
requires accountability and accountability requires 
transparency. A central feature of FOIA is the role of courts 
in mediating disclosure disputes between citizens and the 
executive branch.
    Section 929I gives the SEC the power to refuse disclosure 
of any document or record as long as it can say it was obtained 
through or even based on or derived from the exercise of the 
agency's surveillance, risk assessment, or other regulatory and 
oversight activities. This broad language, combined with 
Exemption 3B, completely eliminates the role of the courts as 
the arbiter of disputes under FOIA.
    While Chairman Schapiro has taken the position that the new 
FOIA exemption is required to protect proprietary information 
and trade secrets of business submitters, this type of 
information has always been protected by Exemption 4. Any 
legitimate concerns that regulated firms have about their 
proprietary data are satisfied by Exemption 4 and SEC rule 83, 
which provides a specific procedure for an entity submitting 
information to request confidential treatment and to be heard 
if a FOIA request affecting the information is made.
    The same is true for proprietary information sought through 
subpoenas; and, frankly, the guidelines that have been proposed 
by the chairman now simply want to substitute out the role of 
courts to be the final decisionmaker and to substitute in the 
SEC as the ultimate decisionmaker on whether information should 
be released or not. That changes and reverses the role.
    The suggestion that the SEC needs a new FOIA exemption to 
compel regulatory compliance is troubling. With subpoena power 
and sanctions that are available, the SEC can force registered 
entities to produce information; and if that remains a problem, 
the solution should not be to entice those entities with 
promises of secrecy but, rather, to adopt additional 
regulations to ensure that they will comply with SEC requests 
for information.
    Section 929I is also unnecessary to prevent interference 
with the SEC's law enforcement functions since materials 
compiled for law enforcement purposes are already protected by 
Exemption 7A. By the same token, privileged documents are 
covered by Exemption 5, and records implicating personal 
private interests are covered by Exemption 6.
    In addition, the SEC also uses Exemption 8 improperly, in 
my own view, to block FOIA requests. Section 929I provides the 
agency with a get-out-of-jail-free card, enabling it to invoke 
Exemption 3 without actually conducting a document-by-document 
review. Instead, the agency can bypass FOIA by simply labeling 
the requested documents as material obtained pursuant to its 
regulatory authority.
    The SEC has not pointed to a single instance in which it 
has been denied the use of an existing FOIA exemption because 
of statutory language that is overly narrow. Both my own 
experience with the SEC and the findings contained in the 
report of the Inspector General suggest that the SEC is 
struggling with FOIA compliance not because of inadequacy of 
existing exemptions but because it does not have the resources 
it needs to collect and review materials as FOIA requires.
    I respectfully submit that an evisceration of FOIA through 
929I is neither necessary nor appropriate. The SEC should not 
receive an agency pass from the Freedom of Information Act. 
Accordingly, Section 929I needs to be repealed in its entirety. 
The recommendation by Representative Issa, I agree with that. 
Let's repeal it, and if they need one, it can be done properly.
    Thank you again for giving me this opportunity to testify, 
and I look forward to answering any questions that you may 
have.
    [The prepared statement of Mr. Mintz can be found on page 
88 of the appendix.]
    The Chairman. Ms. Susan Merrill.

STATEMENT OF SUSAN L. MERRILL, PARTNER, BINGHAM McCUTCHEN LLP, 
  ON BEHALF OF THE SECURITIES INDUSTRY AND FINANCIAL MARKETS 
                      ASSOCIATION (SIFMA)

    Ms. Merrill. Thank you, Chairman Frank, Ranking Member 
Bachus, and members of the committee. I am Susan Merrill, a 
partner in the Broker-Dealer Group of the law firm of Bingham 
McCutchen.
    Prior to joining Bingham, I served as the Chief of 
Enforcement at FINRA, the Financial Industry Regulatory 
Authority; and prior to 2007, I served as the Chief of 
Enforcement at the New York Stock Exchange.
    Thank you for the opportunity to testify today. I appear on 
behalf of SIFMA, the Securities Industry and Financial Markets 
Association, to provide an overview of the securities 
industry's position with respect to Section 929I of the newly 
enacted Dodd-Frank Wall Street Reform and Consumer Protection 
Act.
    The securities industry has a strong interest in 
maintaining an open, cooperative, and efficient dialogue with 
the Securities and Exchange Commission in the course of SEC 
exams. Registered entities being examined understand that it is 
in no one's interest to hinder the Commission's ability to 
comprehensibly complete its work. However, the industry's 
practical ability to produce certain types of sensitive 
proprietary or confidential information to the SEC was, prior 
to the Dodd-Frank Act, significantly impeded by Federal laws 
governing the Commission's legal obligation to publicly 
disclose such information in certain circumstances, whether the 
SEC supported such disclosures or not.
    Section 929I directly addresses these issues. We believe 
the practical effect of this provision will lead to greater 
trust, openness, and efficiency between regulators and the 
industry and ultimately to better protection for investors and 
stronger markets. It is for these reasons that we support the 
new law and oppose the efforts to remove it from the Wall 
Street Reform and Consumer Protection Act.
    One logical question in response to the industry's concerns 
is wouldn't the type of information firms fear disclosing be 
protected under the FOIA exemptions? The answer is not 
necessarily. The FOIA exemptions are simply too imprecise to 
allay the industry's fears regarding public disclosure, and the 
issue runs deeper than mere semantics because it is this lack 
of clarity that impedes the flow of necessary information 
between firms and the SEC staff. And, similarly, it is the 
clarity provided by Section 929I that will foster open 
communication between the firms and the SEC.
    But FOIA is not the only source of concern prior to the 
Dodd-Frank Act. Additional Federal laws obligate the Commission 
to disclose documents in its possession in response to third-
party subpoenas. Information so produced generally enters the 
public domain upon production by the SEC. The FOIA exemption 
for trade secrets, confidential communication, and exam reports 
simply do not apply here.
    The Commission is left to the uncertainties of the common 
law and to general litigation and discovery processes in 
seeking to protect from disclosure the most sensitive 
information it receives from regulated entities in the course 
of this exam. The fact that the FOIA exemptions do not apply to 
third-party subpoenas served upon the SEC is, in the industry's 
view, the most important consideration in weighing the 
interests served by Section 929I. Since 929I squarely addresses 
this issue, its provisions will function to foster a more open 
and cooperative dialogue between the securities industry and 
its regulators.
    With no risk of compelled disclosure looming over the 
production of information, regulated entities are now able to 
produce all that people would likely agree the Commission 
should have access to without fear that the Commission will 
later be legally obligated to disclose it.
    Section 929I effectively closes the third-party subpoena 
loophole that provides a path to compel public disclosure of 
confidential information even when the FOIA exemptions are met. 
There is a sound logic in Congress' recognition of the fact 
that there are certain types of sensitive information that one 
would not expect a financial institution to disclose to the 
public but which one would expect them to freely disclose to 
its regulator. Section 929I achieves this balance, and I urge 
the committee to leave it intact.
    [The prepared statement of Ms. Merrill can be found on page 
71 of the appendix.]
    The Chairman. Thank you.
    A couple of things to make clear. There is going to be 
legislation. The guidance that is going out, even if people 
thought it was perfect, doesn't suffice, because it can be 
undone. So it has to be statutory.
    Mr. Blum, I did have some questions about the procedures. I 
think you may be looking for procedural solutions that--nothing 
is going to be a substitute for people reading. This particular 
issue has been in the public domain since 2008. It has passed 
the House unanimously.
    As far as referring to the Committee on Government Reform, 
members of the Committee on Government Reform were members of 
the House-Senate Conference Committee on this. They had a month 
to look at it. Frankly, I think people looking at it in the 
abstract didn't fully understand it until the lawsuit. So I am 
not sure anything would suffice, and that is not something to 
be cured. Sometimes you don't understand what something means 
until in fact it gets put into effect. So I understand the 
perceiving of things, but procedurally this couldn't have been 
truer. It just took the lawsuit.
    Mr. Blum. Can I address that point?
    The Chairman. Yes.
    Mr. Blum. It is true, under the procedures that we think 
would improve the situation, you might not find out that 
there's a concern--
    The Chairman. Excuse me, I would take exception to slipped 
through. Nothing slipped through here. It was public.
    Mr. Blum. I appreciate that very much. But we see this 
happen very often where--
    The Chairman. What exactly is your procedural solution to 
this?
    Mr. Blum. We think that there have been inadequate reviews 
of--
    The Chairman. But what is your procedure, again? It has 
been out there in public. What is the procedural way to force 
the review?
    Mr. Blum. I think having a referral to the Committee on 
Oversight and Government Reform in the House would help and 
just do it routinely.
    The Chairman. I would note that this was before them for a 
month, and it didn't--I'm not sure--as I said, they saw it. 
Nobody understood the implications of it until the parties in 
the lawsuit brought it to their attention.
    Mr. Blum. I think that when agencies propose these, they 
ought to go to the stakeholders. I don't know how many 
reporters saw this before it was introduced and there was a 
lawsuit; and, frankly, my job is to look for these things.
    The Chairman. I have to say some responsibility, I thought, 
went on the media to cover the agencies that they are covering. 
There was never any secret about that. It was set up in public 
letters. We discussed it in hearings.
    Mr. Blum. Sure.
    The Chairman. I am not sure how much we can spoon-feed the 
media. Nobody ever got in the way of the media covering this 
agency or this committee or this Congress.
    Mr. Blum. We are not asking for it to be spoon-fed. I think 
what we are asking is to have a fair hearing and adequate 
review for the impact on FOIA.
    The Chairman. We have had hearings on this, and nobody 
noticed it until the lawsuit.
    Mr. Blum. And I think that the language actually evolved 
from the timeframe that you are talking about. I think the 
earlier versions were probably slightly narrower. Some of the 
really broad language didn't come in until June.
    The Chairman. I am sorry. But the language that was in the 
final bill was there for over a month. It was in the public. 
And, in fact, it was in both bills adopted in the House and the 
Senate. So it didn't evolve.
    Let me just ask one other question. What you have is this: 
And the one concern I think is on the third-party litigation. 
Congress passed--it was controversial--over the veto of Bill 
Clinton a limitation on the ability of plaintiffs to get 
discovery in corporate litigation. One question raised is, is 
this a way around that?
    Now that was actually passed by Congress. I think it was 
the only bill passed over Bill Clinton's veto. And to get 
discovery in a private securities lawsuit you need to meet a 
certain standard. Does this become a way around that?
    That is just a question that occurred to some of us as we 
were listening. Namely, if the SEC has subpoenaed--has gotten 
information for regulatory purposes and you are in a lawsuit 
and you might not be able to meet the standard of the 
Securities Litigation Act, is this a way for you to get 
discovery without meeting that standard? And, if so, is that 
something to be concerned about?
    Any of the panelists?
    Mr. Pitt. The answer I think, Mr. Chairman, is yes. Without 
929I, or something like it, litigants who have very different 
objectives would be able to get around some of the barriers on 
discovery. It doesn't mean that the precise wording of 929I is 
ideal, but it does mean that there is both the FOIA and the 
non-FOIA component, and both have to be addressed.
    The Chairman. Let me go down the list on this. Is that any 
kind of a concern that--should anything that the SEC gets for 
its purposes--and I think there is some consensus here about 
the SEC not having it--but should anything the SEC gets from a 
private company be fully available to any litigant who has an 
issue with that company, who might not, in the absence of the 
SEC getting it, otherwise be able to get at it? Ms. Canterbury?
    Ms. Canterbury. No, sir. I don't believe in every case. But 
I think our concern is for the whistleblower who comes to the 
Securities and Exchange Commission.
    The Chairman. Okay. Let me stop you, please.
    Fine, because that is what we have the advantage of in 
legislating, and that is a distinction we could make in the 
legislation. We could protect whistleblowers, but purely 
private disputants in a commercial dispute could be treated 
differently. I appreciate that distinction, and that would be 
very much the kind of thing we could look at.
    Ms. Canterbury. Defrauded investors who cannot go to the 
Bernie Madoffs but have to go to the SEC to prove harm.
    We are also concerned that the SEC is empowering itself to 
make a determination that should be made by the courts. I don't 
know of any other agency that has this kind of discretion--
    The Chairman. Let me ask you this: If we were to leave it 
as it is, when a court was deciding whether or not to--
    Let me ask you this, because I don't know the law here, and 
there are lawyers here who will.
    I am a private company whose material has been taken by the 
SEC. Some litigant against me in a purely private dispute--not 
a whistleblower--seeks to get that information and subpoenas it 
from the SEC. Who has the ability to defend against this 
subpoena? Do I have a right to intervene and defend against a 
subpoena?
    Ms. Merrill. If you are given notice, if you receive timely 
notice.
    Mr. Mintz. The industry's concern is that the SEC 
oftentimes doesn't follow their own procedures and provide them 
with notice. But once they provide that confidential 
information, whether there is a FOIA request or a third-party 
request--
    The Chairman. I am sorry. I tend to ask very specific 
questions, and I would appreciate very specific answers. So now 
the answer is apparently--and please don't assume I know more 
than I know. The answer is that if I have gotten notice from 
the SEC that someone in a subpoena is seeking my private 
information, I have the right to go to court to defend against 
this subpoena?
    Mr. Mintz. I can appear in Federal court, make a motion to 
protect my--
    The Chairman. ``Yes'' would handle that.
    Mr. Mintz. ``Yes.''
    The Chairman. But you are telling me that the problem is 
that the SEC may have been lax in giving the notice?
    Mr. Mintz. That is what the industry is telling me as we 
sit here today.
    Ms. Merrill. I think that the issue is that, if you receive 
timely notice that your documents have been subject to such a 
subpoena, then you do have the opportunity.
    The Chairman. All right. Again, these things get 
complicated. One thing you could do would be to say that 
subpoena couldn't be enforced until you got notice and time to 
respond. That would take care of that. So you do have the 
ability.
    Now the question that I have for everybody is this--again, 
these are questions I don't know the answer to. If I am given 
notice and have a chance to go in and defend, is the standard 
that I use to prevent them from getting this the same as in the 
Securities Litigation Act or would there be a lower standard? 
Mr. Mintz.
    Mr. Mintz. I can't speak specifically to the Securities 
Litigation Act, but I can tell you that if a third party is 
seeking to protect its own proprietary information, it is going 
to be a common law privilege. And if it is--
    The Chairman. We are beyond that. A statute was passed over 
Bill Clinton's veto--it was taken very seriously--which raised 
the level of the predicate you need before you get into this. 
And it would seem to me we would be undermining that if people 
like it. Some people didn't like it. Bill Clinton vetoed it. 
Some people thought it was a terrible idea. I do not think it 
has the negative consequences others have said, but there it 
is.
    Would there be an objection if we did this to saying that, 
in those cases where we are dealing with third-party commercial 
litigation, the standard for enforcing a subpoena would be the 
same as the Securities Litigation Act? And if you are not 
familiar with it off the top of your head, if you would get 
back to us.
    Again, in fact, it is easier to say ``yes'' or ``no,'' but 
that is how we get in trouble, and that is why we need to do 
this. To me, that is the one, frankly, sticking point.
    We don't want--I keep talking about all my legal ignorance, 
I will show my legal knowledge with some Latin here--sub 
silentio to amend the Securities Litigation Act. So if all of 
you would address that issue, the question would be--and I 
think they should go to meet some of the concerns that people 
had.
    If your proprietary information, given to the SEC for its 
purposes, was the subject of a subpoena by a litigant against 
you, do we resolve this in part by saying, okay, first of all, 
the subpoena can't be enforced until you have been given notice 
by the SEC; and, secondly, the standard which you can use to 
defend is the same as the one we set in the Securities 
Litigation Act? Yes, Ms. Merrill?
    Ms. Merrill. If I may, I don't think that simply allowing 
the entity that is being regulated by the SEC, a securities 
industry registrant, to go to court and defend at all addresses 
the problem and the reason that the SEC sought this legislation 
to begin with. I will give you an example.
    This legislation is trying to allow the SEC to take what it 
gets while it is in an exam mode and protect it from anyone 
having to 3 years down the line go into court and make those 
arguments. And here is why:
    If you are sitting with an examiner and the examiner says, 
please show us everything we need to understand how you trade 
and hedge your global book across five entities in five 
different jurisdictions--which is what many global firms do. 
They pass the book as it trades. And as one market closes and 
it trades in Tokyo and then the sun comes up somewhere else and 
they trade it to another foreign affiliate--and the entity, the 
securities entity that is regulated in the United States says, 
I would show you all of this in order for you to understand our 
entire global strategy so that you can make a decision about 
the systemic risk that you are looking into, but I would rather 
not because I don't know if what I am going to show you is 
going to end up being protected 2 years, 3 years down the line 
when some magistrate or judge decides whether or not they think 
it should be protected. And so they simply will say, I would 
rather not show you that.
    And that is an example of where the SEC's enforcement 
proceedings and powers do not reach.
    The Chairman. If that were true, we might empower the SEC 
to do more. What I am suggesting is that we tell that entity, 
but here is that standard. That is, at any point, no one--and 
that is why I am suggesting that might mediate that conflict--
no one would be able to get that information unless they could 
independently have gotten it under the bar set by the 
Securities Litigation Act, that they could show that there was 
some basis for this and it couldn't purely be a fishing 
expedition. Mr. Mintz?
    Mr. Mintz. The only point I would add is, if the final 
decision is being made by a court as opposed to the agency 
itself, then I think we have something that is--
    The Chairman. Then the question is, what is the standard by 
which the court does it? And I do think there is a problem. And 
we could carve out whistleblowers. I think we had some good 
whistleblower stuff in the bill in general, and we were very 
sympathetic to that. But that is the one area--and, again, I am 
hoping that we do something by the end of next week. Yes, Ms. 
Canterbury?
    Ms. Canterbury. I am just concerned that there is not 
really a problem here to fix. We have not seen one example of 
proprietary information provided in this setting, so is there 
really a problem?
    The Chairman. Maybe not. But I don't know that we should 
not try to anticipate one. And if what we are talking about 
doesn't do any harm, I don't understand why we wouldn't try to 
do it. We don't always want to be reactive.
    I take it back. What the SEC tells us is the harm is this, 
not that proprietary information has been so much released but 
that they have had a greater degree of resistance to doing it.
    Yes, Ms. Merrill?
    Ms. Merrill. That is what I was going to say. I think that 
the issue is that there is not now a free and open relationship 
between the regulated and the regulator. And if you want that 
to grow so that the SEC, in its exam provisions, can actually 
understand what these firms are doing and do what it needs to 
do to regulate the systemic risk in the system, then you have 
to give them the tools to let them have that relationship.
    The Chairman. I am sympathetic to the issue. But I think 
your overall argument--the notion that we will reach a point 
where there will be that harmonious relationship between the 
regulator and regulated brings to mind Woody Allen's paraphrase 
of the old hope, ``The lion may lay down with the lamb, but the 
lamb won't get much sleep.''
    The likelihood of reaching--I can see where you might 
diminish the resistance. But an open, cooperative--look, let's 
be clear, too. We are not talking about the average company. 
The SEC doesn't--I hope--randomly go out and decide to get all 
this information. They are generally doing that where there is 
some reason to think that something wasn't so hot. So the 
notion--
    Ms. Merrill. That is not true of the exam content.
    The Chairman. I am sorry. I have not finished yet.
    Again, I think you have given me an ideological--let me put 
it this way: The notion that we are going to have this 
wonderful voluntary cooperation between the regulator and the 
regulated is not I think the model that we want to legislate 
to.
    Yes, Mr. Pitt?
    Mr. Pitt. Let me first say there are examples, many of 
which can't be identified publicly, but there are examples 
where proprietary data has not only been sought but received. 
But the specific problem--
    The Chairman. Sought by a private party?
    Mr. Pitt. By a private party, yes. After the Madoff 
problem, one of the things that has happened now in SEC 
investigations is that these investigations now take months and 
months and months. And because the staff is concerned about 
missing anything--which they should be--they now demand far 
more paper and far more documentation than is necessary for the 
traditional kind of an examination. I am not saying that is 
improper. I am just saying this is now a fact of life.
    We work with a lot of entities that produce volumes and 
volumes of material that the SEC usually doesn't need. But once 
the SEC has it, it doesn't want to give that information up. 
And there are sound policy reasons why it shouldn't. I believe 
that this committee, if it is going to adjust this provision, 
should look at who is making the request and what the purpose 
is.
    People have mentioned whistleblowers. I don't see that as 
being a proper subject of 929I, but I do believe that if it is 
one private competitor trying to take advantage of another 
competitor's investigation or examination by the SEC, then 
there ought to be clear enough protection.
    The Chairman. I am trying to get something done here. Let 
me ask this, conceptually--and I would I guess, Ms. Canterbury, 
Mr. Blum, Mr. Mintz, is anyone arguing that anything the SEC 
gets ought to be available to a private party simply because 
the SEC had it? Does anybody advance that argument?
    Ms. Canterbury. No.
    The Chairman. Okay. And I appreciate that. I didn't think 
so, but it is good.
    So then the question is--it doesn't mean--that is the 
problem with a simple repeal. The question is, what could we 
put in there? What are the legitimate barriers that ought to be 
exerted if we all agree that not everything the SEC gets should 
go to everybody else?
    I think whistleblowers will be exempted. They get the free 
ride.
    The next cut for me is--the Congress has already litigated 
with the Securities Litigation Act which sets this barrier, and 
that would be one conceivable barrier to look at it, which is 
to say that a private party has to meet the same requirements--
a litigant, a competitive litigant. And you could also separate 
out shareholders. There are different categories. There are 
whistleblowers, there are shareholders, and legitimate 
shareholders and competitors.
    I don't expect to get those all resolved now. I would 
invite any of you, we have about a week to think about it. This 
helps me. This makes progress as we conceptualize it. There is 
going to be legislation. The Senate is moving, and there is a 
great deal of public demand. So there is going to be 
legislation.
    And I think there is consensus in a number of areas. The 
SEC has already conceded it should not be itself able to 
defend. That will be clear. And they have already, as you know, 
Mr. Mintz, waived any notion of invoking it in the lawsuit that 
you are doing, whistleblowers.
    But then when we get to other categories there is a 
question about what different level should you have to meet if 
you are a private litigant to get information the SEC got and 
by what category? And anybody who has any suggestions on that, 
we would be glad to listen.
    Is there anything further the witnesses want to say?
    Ms. Merrill. I think at a minimum, you would want to extend 
the FOIA exemptions to the private litigation field so that 
third-party litigants would not be able to get information that 
is protected if it were asked for under a FOIA request.
    Ms. Canterbury. I believe that there are currently 
standards for a weighing privilege that are very different from 
FOIA and it involves a judge gauging the public interest versus 
the private interest. And that is a completely different ball 
game.
    The Chairman. I would invite both of to you submit further 
conversation.
    Again, there needs to be some limits. But I would say as 
well, when you are going into court, you have to go, FOIA or 
this or that. We can mix and match and take one from column A 
and one from column B.
    So, yes, I think everybody would agree. There have to be 
some standards that differentiate--let's put it this way. I 
think there is consensus. There is information we want the SEC 
to be able to get fairly freely, although--we want to diminish 
resistance to the SEC reaching broadly for information by 
giving some degree of protection to the proprietary 
information, absent some showing of wrongdoing, etc., or some 
other thing. And if you will help us with that, I think we may 
be able to greatly advance this.
    Mr. Pitt. Would it be useful if we submitted something to 
you in writing?
    The Chairman. Yes, it would be.
    And, Mr. Blum, if you will give us your phone number, we 
will call you every time we have an amendment.
    Mr. Blum. I wasn't looking for special treatment.
    The Chairman. I am sorry. I thought you were when you said 
to ``notify the stakeholders.'' If you talk about notifying the 
stakeholders, that is special treatment for the stakeholders, 
as opposed to simply making it public.
    Mr. Blum. I would hope that by the end of next week, there 
would be clear differentiation between dealing with the third-
party issue separately from the FOIA issue and that in that 
process, there is some way to draw that clear line.
    The Chairman. I thought that is what I was talking about. 
Yes?
    Mr. Blum. But I think 929I puts the two together. And I 
think that there has to be some clear line--
    The Chairman. I understand that. We are going to amend it. 
We are going to change it. We are going to change the law.
    Mr. Blum. Okay. But I hope that there is some way--a clear 
line to immunize whatever comes out of this from allowing the 
SEC to avoid embarrassment.
    The Chairman. Mr. Blum, I will ask you, have you not been 
here for the last 3 hours? I am offended by that question 
because--I am sorry. Please listen, and I will listen to you--
it is so clearly contrary to the subject of the conversation we 
have been trying to have. It is tendentious for a reason I 
don't understand.
    First of all, we have been making it very clear that the 
SEC itself will not be involved, that they won't be able to use 
it. We are talking solely about protecting third-party 
proprietary information. I thought we were clear, and I am 
frankly disappointed, I should say, by the tone of the 
question.
    Now go ahead.
    Mr. Blum. Let me refrain--you have been a clear champion of 
transparency by having the open committee process and by doing 
many things to make this a more open process, and we appreciate 
that very much. At the same time, I just want it to be clear 
that, by way of example, if the SEC is investigating something 
or is cooperating, and writes a supervisory letter, a year 
later if no action has been taken, say--say the SEC doesn't 
like the formula that a credit rating agency uses and suggests 
changes. Will the public see that supervisory letter? So it is 
not a third party--
    The Chairman. Mr. Blum, nothing in what we have been 
talking about suggests that would be protected. Is a 
supervisory letter like that third-party proprietary 
information? Excuse me, Mr. Blum. I will listen after I have 
made this clear. But we have been very clear that we are 
talking solely about proprietary information from a registrant 
which the SEC gets. How could you possibly confuse that with a 
supervisory letter? And I will be glad to listen.
    Mr. Blum. The point is well taken.
    The Chairman. I thank you.
    And, yes, I do invite--and, by the way, some of you might 
be more inclined to write statutory language. Some can do it, 
conceptually in English or whatever.
    But I am serious. I don't expect everybody to agree to 
everything. I think we have a great deal of agreement. And I 
say this, but it is in everybody's interest because if there is 
any significant controversy, our chances of getting this done 
by the end of the month diminish. And it still has to go to a 
President who will be listening to the SEC. So if you can help 
us along these lines of dealing with protecting the 
whistleblower function. The SEC is completely unprotected, the 
whistleblower is completely protected, and third-party 
proprietary information somewhere along that spectrum, that is 
where we want to go.
    I thank the witnesses. This has been very useful for me.
    Ms. Canterbury. Thank you.
    Mr. Pitt. Thank you.
    [Whereupon, at 1:05 p.m., the hearing was adjourned.]
















                            A P P E N D I X



                           September 16, 2010

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