Administrative Law
Memorandums to Messages: The Evolution of FOIA in the Age of the Internet
This year marks the fiftieth anniversary of the Freedom of Information Act (FOIA). In the words of President Obama, this law, “which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open government.” Since its enactment, the FOIA has become an indispensable mechanism for facilitating the public’s understanding of the operations and activities of the federal government. The statute applies to all federal agencies and functions in a straightforward way: virtually anyone, for any reason, can request access to agency records, and agencies, in turn, are required to provide those records unless they are protected from disclosure by nine, carefully crafted exemptions.
The “Freedom From Information” Act: A Look Back at Nader, FOIA, and What Went Wrong
Not long after the Freedom of Information Act (“FOIA”) went into effect, consumer advocate Ralph Nader sent one hundred students out to test whether the statute was working. The students made FOIA requests to more than a dozen federal agencies on a range of consumer topics, from highway safety and airline accidents to environmental pollution and the regulation of pharmaceutical products. Nader, never known for his subtlety, captured the results in the title of the article that followed: Freedom from Information: The Act and the Agencies. As Nader put it early in the piece, “I have reached a disturbing conclusion: government officials at all levels in many of these agencies have systematically and routinely violated both the purpose and specific provisions of the law.
Securities Settlements in the Shadows
The Dodd-Frank Act authorized the Securities and Exchange Commission (“SEC”) to bring almost any enforcement action in an administrative proceeding. Before Dodd-Frank, the SEC could secure civil fines against registered broker-dealers and investment advisers in administrative proceedings, but had to sue in court non-registered firms and individuals, including public companies and executives charged with accounting fraud, or traders charged with insider trading violations. After the Dodd-Frank amendment, save for a few remedies that can only be obtained in court, the SEC can choose the forum in which it prosecutes enforcement actions.