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January 21,2010
Via Email and First Class Mail
Cfminwm
Mark D. Cahn
Deputy General Counsel
Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549
CahnM@sec.gov
Re: Confidentiality of Non-Public Information
Dear Mr. Cahn:
Brooksley 13om
Commissioner
$. '-'"'-''·"·"·''-'
Commissioner
Scrmtor Bob Graham
Contmissimu:r
~
..
Commrsswner
ContJnissiaJ£er
We have reached agreement vvith the Board of Governors of the Federal Reserve
System regarding nondisclosure of confidential information. We have used that
agreement as a model and crafted a process to enable us to obtain from the
Securities and Exchange Commission (the "Information Provider") the
information necessary for the Financial Crisis Inquiry Commission (the "FCIC")
to complete its statutorily mandated task in a timely manner, while ensuring the
continued confidentiality of that information, as appropriate. You may rely upon
the terms of the commitment belo\v when submitting confidential information to
the FCIC.
Section 5 of the Fraud Enforcement and Recovery Act of2009 ("FERA'') created
the Financial Crisis Inquiry Commission to examine the causes, domestic and
global, of the current financial and economic crisis in the United States. It
expressly contemplates infom1ation sharing:
Subpart (d) of Section 5 ofFERA provides:
Ccnt~nis:::ioncr
W. Thompson
Commissioner
PeterJ. vVi1llison
Commissioner
Thomas Grcene
Exccutbe Director
(A)
In General- The Commission may secure directly from any department,
agency, bureau, board, commission, office, independent establishment, or
instrumentality of the United States any information related to any inquiry
of the Commission conducted under this section, including information
of a confidential nature (which the Commission shall maintain in a
secure manner). Each such department, agency, bureau, board,
commission, office, independent establishment, or instrumentality shall
furnish such information directly to the Commission upon request
(emphasis added)
1717 Pennsylvania
NW/
800 " Washington,
202.292.2799 " 202.632.1604 Fax
Mr. Mark D. Calm
January 21, 2010
Page2
And Subpart (c)(5) requires the FCIC:
to build upon the work of other entities, and avoid unnecessary duplication, by
reviewing the record of the Committee on Banking, Housing, and Urban Affairs
ofthe Senate, the Committee on Financial Services of the House of
Representatives, other congressional committees, the Government Accountability
Office, other legislative panels, and any other department, agency, bureau, board,
commission, office, independent establishment, or instrumentality of the United
States (to the fullest extent permitted by law) with respect to the current financial
and economic crisis.
The FCIC has adopted a strict Confidentiality and Nondisclosure ,Policy which
includes the agreement by its staff not to disclose confidential information (which
includes information submitted to the FCIC in confidence by other persons)
outside ofthe FCIC except as may be reasonably required in connection with the
work of the FCIC and then only to persons who are informed of, and agree to
respect. the confidential nature of the material provided. In implementing this
Commitment the staff will adhere to this Policy.
It is the policy of the FCIC to respect the confidentiality of information submitted
to it in confidence by any other department, agency, bureau, board, commission,
office, independent establishment, or instrmnentality of the United States to the
extent consistent with its statutory mandate and its duty to the American public,
and each such entity which provides information to the FCIC can be assured that
the FCIC intends to abide by its policy.
Therefore, we propose the follo'V\ing:
Non-Disclosure Commitment
This letter (the "Commitment") from the Financial Crisis Inquiry Commission
(the "FCIC" and with the Information Provider, the "Parties") sets forth the
commitment of the FCIC with respect to its treatment of non-public information
obtained from the Information Provider. For purposes of this Commitment «non~
public information" means information that the Information Provider has not
made, and is not required by law to make, public and which the Information
Provider treats as non-public, and in particul~r includes information the disclosure
ofwhich is restricted by 18 USC §1905, and information that is protected as
"confidential or non public;; under the Information Provider's regulations
(including without limitation 17 CFR Part 203, 230 and 240). Non-public
information includes both the information itself, in any form (including oral), and
any document, written transcript, audiotape, videotape, or other type of
transcription, replication, reproduction, or recreation which contains or is derived
from such information. It is the intent of the Parties that when the Information
Provider provides information to the FCIC, the FCIC will treat information as
non·public if it is informed by the Infoxmation J>rovider that the information is
non-public. The Information Provider may cure an inadvertent failure to
Mr. Mark D. Calm
January 21,2010
Page3
designate information as non-public information by informing the FCIC of the
error within a reasonable time after the error is confirmed.
This Commitment does not apply to non-public information which becomes
publicly available in a manner other than by a breach of this Commitment by the
FCIC.
Accordingly, the FCIC agrees to the following:
l. All non-public information transferred from the Information Provider to the
FCIC remains the property of the Information Provider.
2. Unless otherwise authorized in writing by the Information Provider, or as
contemplated in this letter, non-public information may be shared only with
employees and agents of the FCIC who have a need to know the information
in the performance of their official work duties consistent with applicable law.
AU employees and agents of the FCICwith whom non·public information is
shared must be advised of and. as condition of receiving non-public
information, be bound by the terms of this Commitment and instructed to
comply with aU of its terms.
3. Except as contemplated in this letter, non-public information may not be
shared by the FCIC with any third party without the prior written permission
of the Information Provider.
4. The FCIC will take all steps reasonably necessary to preserve, protect and
maintain all privileges and claims of confidentiality related to the non-public
information and will accord at least as much protection to the non-public
information as the Information Provider provides to that information.
5. If the FCIC receives a request from a third party for non-public intormation of
the Information Provider, such as a Freedom of Information Act request or a
subpoena, the FCIC will:
a) unless prohibited by law, immediately notify the Information Provider
of such request, subpoena, order, or other process and furnish to the
Information Provider copies of any such request or order as well as
any documents related thereto;
b) at'ford the Information Provider a reasonable opportunity to take
whatever action it deems appropriate to preserve, protect. or maintain
the confidentiality of the non-public information or any privileges
associated therewith;
Mr. Mark D. Calm
January 21, 2010
Page4
c) cooperate fully with the Information Provider to preserve, protect, and
maintain the confidentiality of the non-public information and any
privileges associated therewith;
d) notify the requestor seeking the non-public information that the
information was obtained from the Information Provider and, where
applicable, notify the requester that requests for such information must
be made directly to the Information Provider in accordance with
applicable federal or state law;
e) resist and agree to not initiate production of the non-public
information, and testimony related thereto, pending written consent of
the Information Provider, except as provided in paragraph 6, and
f) consent to application by the Information Provider to intervene in any
action in order to preserve, protect, or maintain the confidentiality of
the non-public information or any privileges associated therewith.
6. Nothing in this Commitment will prevent the FCIC from complying with a
request or demand from a duly authorized Committee of the United States
Congress with authority to require and receive the non-public information, or
a legally valid and enforceable subpoena or order by a court of competent
jurisdiction for the non-public information or testimony related thereto if, in
the case of a subpoena or court order, the FCIC:
a) reasonably determines that efforts to quash, appeal, or resist
compliance with the order would be unsuccessful or against its
interest;
b) attempts, to the extent practicable, to secure a protective order to
preserve, protect, and maintain the confidentiality of the non-public
information and any privileges associate therewith; and
c) immediately notifies the Information Provider of its intent to comply
with the order and of any actions taken in compliance with the order.
Mr. Mark D. Cahn
January 21,2010
Page 5
7. In accordance with its statutory mandate and its duty to the American public,
notwithstanding any other provision of this Commitment, the FCIC, if it
determines it is in the public interest and not unlawful to do so, may release to
the public non-public information obtained from the Information Provider in
any interim or final report to the President and Congress, or in any public
hearings, if the FCIC determines to do so by a majority vote or by the decision
of the Chairman and Vice Chairman acting together on behalf of the FCIC.
Prior to any release of non-public information under this paragraph, the FCIC
will give prior \Vritten notice to the information Provider, and allow a
reasonable period oftime for the Information Provider to consult \\lith the
FCIC before the FCIC uses any of the Information Provider's non~public
information in any interim or final report to the President and Congress, or in
any public hearings (with a target of up to 14 days prior notice whenever
feasible, but with the reasonableness of the consultation period being
determined based upon the amount and sensitivity of the non-public
information under consideration).
8. Should a question arise as to whether information is public or non-public, the
FCIC will immediately contact the Information Provider and seek a
determination as to the status of the information. If the Information Provider
determines that the information is non~public information, the FCIC will treat
it in accordance with this Commitment.
9. The Parties intend that sharing of non-public information with each other
pursuant to the terms of this Commitment will not constitute public disclosure,
nor will it constitute a waiver of confidentiality or any privilege applicable to
such information. The Parties expressly reserve all privileges and immunities
applicable to the information shared under this Commitment
'.,
10. This Commitment and all of its terms and conditions is continuing and applies
to the FCIC until terminated by the Party that provided the non~public
information. In the event of termination of this Commitment, the FCIC agrees
that non-public information will remain confidential and continue to be
protected by the terms of this Commitment.
Mr. Mark D. Cahn
January 21,2010
Page6
We trust that this Commitment will enable you immediately to comply with the
information requests staff members from the FCIC have already submitted to your
staff, and look forward to your prompt cooperation. We thank you in advance for
your cooperation.
Very truly yours,
__
...,._.........._._
Thomas Greene
Executive Director
Agreed to:
Securities and Exchange Commission
Mar D. Cahn
Deputy General Counsel
cc:
Richard M. Humes
William K. Shirey (Brooks)
Sam Forstein
Bart Dzivi
Gary Cohen
@FedFRASER