Keeping Materials Filed With The SEC Confidential

The procedures are relatively straightforward. The consequences for failure to follow them can be severe. In the post-Enron era, where the number of information requests under the Freedom of Information Act, or FOIA (5 U.S. Code 552), more than tripled between 2001 and 2003, it pays to know the proper procedures for protecting confidential information that is submitted to the Securities and Exchange Commission.

It is important to note at the outset that everything filed electronically with the SEC is available under the FOIA, including comment response letters and other supplemental materials provided in response to staff comments. Rule 101(a) of Regulation S-T sets forth the SEC-mandated electronic submissions, and the note to that rule provides that failure to submit a required electronic filing will, among other things, result in ineligibility to use Forms S-3 and S-8.