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News June 28, 2004 Issue

SEC To Air Disclosure Review Comment Letters and Responses

Attention fund lawyers: in a few months, the SEC will begin posting all of the comment letters sent out by the disclosure review staff of the Divisions of Investment Management and Corporation Finance, and the responses it receives to those letters, on Edgar for all the world to see. The SEC has not announced the actual date when the first letters will hit Edgar.

Currently, the SEC will only release disclosure comment and response letters in response to a Freedom of Information Act, or “FOIA,” request. Because so many of these letters are being FOIA’ed, the SEC has decided to make them available “to a broader audience.”

In a June 24 announcement, the SEC said it would begin releasing comment and response letters relating to disclosure filings, such as mutual fund registration statements, made after August 1, 2004. However, the agency will wait 45 days after the staff has completed a filing review before releasing correspondence.

Filers may still request confidential treatment under Rule 83. If granted, the SEC will post the redacted version of the confidential document, although members of the public may still submit a FOIA request for the unredacted version. The staff also said it will now routinely ask filers to represent that they will not use the SEC’s comment process as a defense in any securities-related litigation.

Non-fund advisers needn’t worry: Form ADVs are not subject to the SEC’s disclosure review process.