Gibson, Dunn & Crutcher LLPawright@gibsondunn.com November 26, 2003 (202) 887-3770 (202) 530-9656 VIA E-MAIL Mr. Jonathan G. Katz
Dear Mr. Katz: I am enclosing, for inclusion in the rulemaking record in the above-titled proceeding, a Freedom of Information Act ("FOIA") request that has been submitted to the Commission today. We have asked that the information requested be provided on an expedited basis. It is important to note that this request for information implicates the Administrative Procedure Act ("APA") as well as FOIA itself. The APA requires that interested parties have an opportunity to provide "meaningful" comment on proposed rules. See Florida Power & Light Co. v. United States, 846 F.2d 765, 771 (D.C. Cir. 1988). This requires, among other things, that an agency "identify and make available technical studies and data that it has employed in reaching the decision to propose certain rules . . . . An agency commits serious procedural error when it fails to reveal portions of the technical basis for a proposed rule in time to allow for meaningful commentary." Connecticut Light and Power Co. v. Nuclear Regulatory Comm'n, 673 F.2d 525, 530 (D.C. Cir. 1982); see also Lloyd Noland Hosp. & Clinic v. Heckler, 619 F. Supp. 1, 6 (N.D. Ala. 1984) (data must be "made available to interested parties in time for a proper analysis and meaningful comment to be made regarding the proposed regulation"). Unfortunately, our prior attempts to obtain certain information cited in the rulemaking have been unsuccessful. For example, in footnote 78 of the proposing release, as support for an important proposition in the rulemaking, the Commission cites certain "data" provided to it by "Automated Data Processing, Inc." This data is not publicly available. We have called the Commission's Public Reference facility to request the data, but, on November 18, 2003, a representative of the Division of Corporation Finance left a voicemail for my colleague Claudia M. Osorio stating that, according to the Office of Economic Analysis, "the data is not publicly available" and would not be provided. The failure to provide this data is inconsistent with the APA, for the reasons given above. We hereby reiterate our request that the data cited in footnote 78 be provided, as well as all other information identified in the enclosed letter. Moreover, because interested parties have until only December 22, 2003 - 26 days from today - to submit comments on the proposed rule, we ask that the requested material be provided on an expedited basis. Thank you for your attention to this matter. Very truly yours, Ashley Wright Enclosure cc: Hon. William H. Donaldson Gibson, Dunn & Crutcher LLPawright@gibsondunn.com November 26, 2003 (202) 887-3770 (202) 530-9606 VIA E-MAIL U.S. Securities & Exchange Commission Re: Freedom of Information Act Request Dear Sir or Madam: Pursuant to the Freedom of Information Act ("FOIA"), we request copies of all data and studies that the Securities & Exchange Commission ("Commission") cites or relies upon in its proposing release regarding "Security Holder Director Nominations" (file number S7-19-03; 68 Fed. Reg. 60,784), and that are not otherwise publicly available. The data and studies that we request include, but are not limited to, those cited in footnotes 78-85, 114, 187, 189-90, 192, 194-95, and 197-98 of the proposing release. A prior request for the data cited in footnote 78 was rejected by the Commission on November 18, 2003. Under the Administrative Procedure Act, 5 U.S.C. § 553(c), interested parties are entitled to an adequate period of time to review, consider and comment meaningfully on proposed rules. Yet, only 26 days remain for interested parties to comment on the proposed rule identified above. Accordingly, we request expedited processing of this request so that we might obtain copies of the records within five business days. Gibson, Dunn & Crutcher LLP will pay all fees associated with the search, review and duplication of these records. If you need to contact me, I can be reached at (202) 887-3770. Very truly yours, Ashley Wright |