The Securities and Exchange Commission’s (SEC) Enforcement Division has routinely destroyed preliminary investigative files that were supposed to be retained as federal records, and the agency withheld critical information in response to questions from the National Archives and Records Administration (NARA), according to an SEC Office of Inspector General (OIG) investigative report released this week.
The OIG’s investigation confirmed many of the allegations raised by SEC Enforcement attorney Darcy Flynn, who blew the whistle on the agency’s document shredding policies. Flynn’s allegations were first reported a few months ago by Rolling Stone’s Matt Taibbi.
-SEC improperly destroyed records from closed inquiries-
The SEC’s Enforcement Division is perhaps best known for its investigations into violations of federal securities laws. But in addition to investigations, Enforcement attorneys can also open Matters Under Inquiry (MUIs) as “pre-investigation inquiries” in order to “collect and analyze information to determine whether an enforcement investigation should be instituted,” as described in the OIG’s report.
When Enforcement decides to close an investigation, SEC attorneys are supposed to preserve several types of documents related to the case. However, it was Enforcement’s long-standing policy to destroy records from closed MUIs that did not become full-blown investigations, according to the OIG. This policy was memorialized in a manual posted on Enforcement’s intranet in 2001.
Between 1992 and 2010, Enforcement opened 23,289 MUIs, 10,468 of which were closed without becoming formal investigations. Most of the SEC officials interviewed by the OIG had a hard time coming up with a clear rationale for destroying records from these closed inquiries.
Regardless of the rationale, the OIG found that the SEC did not have the authority to destroy these records. It’s possible that the records were covered by a 1992 agreement with NARA that required SEC investigative case files—including “files relating to preliminary investigations”—to be retained for at least 25 years after an investigation is closed. If they weren’t covered by the existing NARA agreement, the SEC did not have the authority to destroy them at all. Either way, the OIG concluded that the records were improperly destroyed.
-SEC officials misled NARA-
In June 2010, Flynn informed a NARA official that the SEC had been destroying MUI records for 17 years. The following month, Enforcement sent a Division-wide memo instructing staff to preserve files from closed MUIs just as they would with files from closed investigations.
A NARA official then asked the SEC to determine whether federal records had been improperly destroyed as Flynn alleged. Over the next few weeks, SEC officials scrambled to figure out how to respond to NARA’s inquiry.
An initial draft response prepared by Flynn acknowledged that MUI files had been destroyed. But other officials pushed back. One Enforcement attorney claimed that staff had always preserved files from closed MUIs in the “rare instances” that the documents would have been preserved had the MUI progressed to a full-blown investigation. Flynn’s notes indicate that the same attorney also raised concerns about “fallout for the Commission” if they acknowledged that MUI records had been destroyed. Rolling Stone reported on a meeting held around the same time in which SEC Assistant Chief Counsel Kenneth Hall proposed to “say that we do not believe there has been disposal inconsistent with the schedule.”
In the end, the SEC provided NARA with what Taibbi called a “hilariously convoluted nondenial denial”: “the Division is not aware of any specific instances of the destruction of records from any other MUI...but we cannot say with certainty that no such documents have been destroyed over the past seventeen years.”
The OIG found that the SEC’s response did not comply with a requirement for federal agencies to provide a complete description of records that were accidentally or unlawfully destroyed. The OIG also concluded that the SEC omitted key information in its response, such as the fact that it was Enforcement’s policy before July 2010 to destroy records from closed MUIs, or that officials were aware of specific instances in which these records were destroyed.
In a statement issued this week, Senate Finance Committee Ranking Member Charles Grassley (R-IA) criticized the SEC’s response to Flynn’s allegations: “When a whistleblower reported inappropriate document destruction at the SEC, the agency seemed to spend more time covering tracks and drafting a lawyered-up response than just following the law and otherwise using common sense.” A NARA official told the OIG that the SEC's response appears to be "inaccurate or misleading."
OIG did not find evidence that document destruction hampered SEC investigations
The OIG described several examples of document destruction from closed MUIs related to Lehman Brothers, Citigroup, Deutsche Asset Management, and Bernard Madoff. Notwithstanding these examples, the OIG concluded that it is “not aware of a particular investigation that was hampered by the destruction of records for a MUI, although the OIG has not conducted an exhaustive audit or review.”
Senator Grassley called on the OIG to conduct a “separate audit of what was destroyed and the potential consequences on enforcement cases.”
-Unanswered questions-
Flynn’s attorney, former Enforcement attorney Gary Aguirre, stated that “Flynn has been fully vindicated” by the OIG’s report. However, there are still some unanswered questions.
For instance, Flynn and Aguirre also raised concerns that the SEC has been destroying three additional types of investigative documents that are not currently covered by a NARA-approved disposition schedule: 1) documents produced by third parties, 2) internal work product, and 3) internal emails. An SEC records official told the OIG he did not believe these types of documents would qualify as federal records. Nonetheless, the official said he has recommended that these documents be included in a NARA disposition schedule “because of the increased transparency expected by the public.”
Aguirre had also raised concerns that Enforcement was still routinely destroying MUI records even after the new policy was put in place, and may have routinely destroyed records during informal investigations. The OIG stated it will “determine whether additional investigations or audits are warranted in light of these allegations.”
The OIG also stated it will soon be issuing an investigative report addressing Flynn’s allegations regarding a former Enforcement Director. Rolling Stone reported that Flynn had raised concerns that the SEC mysteriously and abruptly closed an investigation into Deutsche Bank just before former Enforcement Director Richard Walker left the agency to become Deutsche’s General Counsel.
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