Over five years ago, the Securities and Exchange Commission proposed amendments to its Rules of Practice to require persons involved in SEC administrative proceedings to file and serve documents electronically. I was the first person to submit comments on the proposed rules. In November last, the SEC finally adopted final rules.
In my comment letter, I expressed my concerns that the SEC's proposal to require redaction of "sensitive health information" was inconsistent with FOIA Exemption 6 which specifically and explicitly exempts from agency disclosure “medical information”. 5 U.S.C. § 552(b)(6). I also argued that the SEC's proposal did not provide a basis for determining what information constitutes "sensitive health information". I was heartened to read that the SEC, while not agreeing with my interpretation, took my concerns to heart:
"Nonetheless, we take seriously the commenter’s concerns regarding Exemption 6's protection of health information. Our staff will continue to review filings before posting them. And although the Commission is not required to protect all information that FOIA Exemption 6 protects when releasing filings in administrative proceedings, the policy behind FOIA Exemption 6 is relevant to a determination of what redactions are appropriate. To address these considerations, we are substituting the term 'unnecessary' for the term 'sensitive,' so that the standard for redaction or omission under the final rules is 'unnecessary' health information."