Washington, D.C., June 24, 2004 — The staff of the Securities and Exchange Commission today announced its position regarding the release of comment letters and filer responses relating to disclosure filings reviewed by the Division of Corporation Finance and the Division of Investment Management.
Disclosure filings made with the SEC are in certain cases selected for review by staff. For many years, the Division of Corporation Finance and the Division of Investment Management have provided filers with comments on filings where they believe the filing could be improved or enhanced. These comments generally are sent after a filing is made with the Commission under the Securities Act of 1933, the Securities Exchange Act of 1934, the Trust Indenture Act of 1939 or the Investment Company Act of 1940. The letters set forth staff positions on a particular filing only and do not constitute an official expression of the Commission's views. Further, these letters set forth the staff's position, are limited to the specific facts of the filing to which they apply, and do not apply to other filings.
Staff review of a filing may involve several rounds of comments from the staff and a similar number of responses from the filer. Upon resolution of all issues relating to a filing review, the staff advises the filer that its review is complete. The SEC currently releases staff comment letters and responses to these comment letters only in response to a Freedom of Information Act request after the staff review is complete.
In recent months, an increasing number of our comment letters and filer responses to them are being released publicly through the FOIA process, but only to those persons who make FOIA requests for them. We believe it is appropriate to expand the transparency of the comment process so that this information is available to a broader audience, free of charge. We intend to do this through the Commission's Public Dissemination Service and on our website at www.sec.gov (EDGAR data on the SEC Public Website). Public access to this correspondence will no longer require a FOIA request.
We will begin releasing our comment letters and response letters relating to disclosure filings made after August 1, 2004 that are selected for review. We will announce in the near future a specific date after which these documents will become publicly available; that date will depend on completion of necessary technical modifications. Correspondence will be released not less than 45 days after the staff has completed a filing review.
In applying the August 1, 2004 commencement date, we will look to the filing that is the primary focus of the review. For example, if we select for review a Form 10-K filed before August 1, 2004, and in connection with that inquiry we also review a Form 10-Q or Form 8-K filed after August 1, the determination will be based on the filing date of the Form 10-K. Similarly, if a registration statement is filed before August 1, 2004, but an amendment is filed after that date, the determination will be made on the basis of the earlier filing.
With respect to investment companies, if we review an amendment to a registration statement filed before August 1, 2004, and in connection with that review also review a Form N-CSR filed after August 1, 2004, we will not make the correspondence publicly available through this process. If we review an amendment filed after August 1, 2004, and in connection with that review also review a Form N-CSR filed before that date, we would make the appropriate information publicly available.
Rule 83 (17 CFR 200.83) is the SEC's rule that allows filers to request confidential treatment for some portions of a written response to a staff comment letter. That rule requires the filer to submit its response letter using two separate documents — a response to the comment letter without the confidential information, which we refer to as the redacted version, and a separate paper document including the confidential information. This separate document must be properly marked as confidential in accordance with Rule 83.
While we will release comment and response letters as a matter of course without a FOIA request, we currently intend to release only the redacted version of response letters where there is a Rule 83 request for confidential treatment. Anyone wishing to seek release pursuant to FOIA of the portions of a response letter that are the subject of a confidential treatment request must submit a FOIA request for the information. We will process requests for confidential treatment of information pursuant to FOIA and Rule 83. Consistent with current practice, we also intend to continue to question a request for confidential treatment under Rule 83 that is on its face overly broad. We also remind companies and their counsel that there must be an appropriate basis for a request for confidential treatment.
The staff may ask companies to represent in writing that they will not use the SEC's comment process as a defense in any securities related litigation against them. This request is known as a "Tandy" letter. Since we will be making all comment letters and responses publicly available, either in response to a FOIA request or pursuant to this announcement, we will ask all companies whose filings are reviewed for such representation. This request and representation should not be construed as confirming that there is or is not, in fact, an inquiry or investigation or other matter involving the filer.
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We will begin releasing comment letters and responses in the manner described above. We are interested in receiving suggestions on how to make the transition and process work efficiently, and ask that any comments be provided promptly. If you wish to send us your views, please submit them by any of the following methods:
Electronic comments:
Paper comments:
Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. All submissions should refer to File Number S7-28-04. This file number should be included on the subject line if e-mail is used. To help us process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (www.sec.gov/news/press.shtml). Comments are also available for public inspection and copying in the Commission's Public Reference Room, 450 Fifth Street, NW, Washington, DC 20549. All comments received will be posted without change; we do not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly.
For additional information, please contact Ken Fogash, Associate Executive Director, Office of Filings and Information Services, at (202) 942-8938; Herb Scholl, Chief, Office of Edgar and Information Analysis, Division of Corporation Finance, at (202) 942-2930; or, Michael Lainoff, Assistant Director, Division of Investment Management, at (202) 942-0589, U.S. Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549.