Last week, I wrote that the Securities and Exchange Commission is sending letters to registrants requesting information about compliance with Regulation G and Item 10(e) of Regulation S-K. These letters request issuers to voluntarily provide information concerning their disclosures of non-GAAP financial measures. I cautioned that registrants should read the accompanying SEC Form 1662 carefully before responding.
Registrants who choose to respond to the SEC’s request may be tempted to request confidential treatment of the materials pursuant to the Freedom of Information Act, 5 U.S.C. § 552, as amended, and the SEC’s rules thereunder, including, but not limited to, Rule 83 of the Commission’s Rules on Information Requests, 17 C.F.R. § 200.83. These registrants, however, should understand that making a request under the FOIA does not ensure that the SEC won’t disclose the produced documents. In fact, the SEC’s Office of Freedom of Information Act Services does not even determine whether the request for confidentiality will be honored unless and until it receives a request for disclosure of the record. Rule 83(c)(6).
Perhaps more importantly, a FOIA request for confidentiality does not affect the SEC’s right, authority, or obligation to disclose information in any other context. Rule 83(a). In fact, the Form 1662 states “The Commission often makes its files available to other governmental agencies, particularly United States Attorneys and state prosecutors.” It then goes on to list 22 categories of routine uses that may be made of any information supplied to the SEC.