The Securities and Exchange Commission has announced that, beginning today (May 12, 2005), it will publish on the EDGAR system (which is available on the SEC’s website) both the comment letters that SEC staff issues (as a result of its review of public company filings) and company responses. These letters have become public in the past only in response to a Freedom of Information Act request. Some of the filings to which this practice will apply are registration statements for public offerings as well as annual reports on SEC Forms 10-K, 20-F and 40-F (which, under the Sarbanes-Oxley Act of 2002, will be reviewed by the SEC at least once every three years). This applies to filings made after August 1, 2004.
SEC staff will wait at least 45 days after finishing its review of a filing before publishing the comment letters and company responses.
Consistent with current practice, a filer may request that some portions of its response letters remain confidential. The request for confidential treatment must not be overly broad and the company must file both a redacted version and a confidential version of the letter. The SEC staff will not publish confidential information as a matter of course, but those confidential portions of companies’ response letters will continue to be subject to Freedom of Information Act requests.
The SEC indicates that it will be asking all companies that respond to SEC comments to provide a "Tandy letter". This is a written statement from the company acknowledging that it will not assert staff comments as a defense in any proceeding initiated by the SEC or any person under U.S. federal securities laws.
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