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1 Harv. Bus. L. Rev. 145 (2011)
Transparency and Confidentiality in the Post Financial Crisis World - Where to Strike the Balance?

handle is hein.journals/hbusrew1 and id is 159 raw text is: TRANSPARENCY AND CONFIDENTIALITY IN THE POST FINANCIAL CRISIS WORLD- WHERE TO STRIKE THE BALANCE? ANNETrE L. NAZARETH MARGARET E. TAHYAR' Existing supervisors, as well as the new institutions that the Dodd-Frank Act created, collect and aggregate an unprecedented amount of commercially sensi- tive financial information. Although financial institutions and their supervisors are increasingly transparent in the post financial crisis era, some information that financial institutions provide regulators should be protected from disclo- sure. Untimely public disclosure of sensitive and competitive information- through FOJA requests, third-party subpoenas, or Congress-could undermine the goals of the Dodd-Frank Act by creating upsetting markets and making fi- nancial institutions reluctant to disclose data to the government voluntarily. The Article argues that when it passed the Dodd-Frank Act, Congress, out of an understandable desire to promote transparency in the financial system, created an intolerable level of uncertainty as to whether information that regulators gather will be kept confidential. The Article argues that regulators and Congress should act to strike a proper balance between transparency and confidentiality rather than allowing courts to determine the legally required level of disclosure in an unpredictable and ad hoc fashion. TABLE OF CONTENTS I. INTRODUCTION .......................................... 146 II. TiE NEW DATA-COLLECTION REGIME ......................... 148 A. The Financial Stability Oversight Council ............. 148 B. The Office of Financial Research ..................... 150 C. The Public and Confidential Nature of the Information to be Collected ....................................... 154 III. RISKS TO THE CONFIDENTIALITY OF INFORMATION COLLECTED BY THE FSOC AND THE OFR ................. 158 A. The Freedom of Information Act ...................... 158 1. The Trade Secret Exemption-Exemption 4 ........ 159 2. The Examination Exemption-Exemption 8 ........ 163 a. Contained in or related to . ................ 164 b. Examination, operating or condition reports prepared by, on behalf of or for the use of an agency responsible for the regulation or supervision .... ............................. 166 Annette L. Nazareth and Margaret E. Tahyar are partners of Davis Polk & Wardwell, LLP in its Financial Institutions Group. The views expressed in this Article are their own and do not reflect the views of any other partners. The authors would like to thank Davis Polk & Wardwell associates Michael Petrocelli, Brian Burnovski, Jason Sharma Manning, Tracy Ebanks, Henry Shi, and Samantha Harper Knox for their research assistance.