Philosophy, Law and Politics

To Legalize, Or, Not To Legalize?

In discussing the current debate of whether the use and sale of marijuana should be generally allowed in each of the 50 States, and no longer be deemed a criminal activity, requires that thought be given to American history and traditional theories of the law. And, perhaps our debate should focus on the history of Prohibition, last century.

Currently proposed legislation before the U.S. Congress asks if the Federal government may, or should, dictate that the use of marijuana is legal conduct for every citizen in every state. Or, should the Federal Government respect the aged-old American doctrine of States Rights and the prudent theory of experimentation within and among jurisdictions, whether they be the Federal judicial Appellate Circuits, the States themselves, or the various political subdivisions therewithin?

As citizens, we must ask in what manner marijuana differs from the time honored American custom of enjoying fermented and distilled spirits – alcohol. If marijuana is properly legal in the United States, regardless of locale, for social, and not only medical, purposes, what is the scientific rationale for permitting it being criminalized in any jurisdiction within the country? If legal in any State and deemed safe by our scientific community, is there a valid legal rationale for treating the use of marijuana differently from the current regulation of our use of alcohol?

Traditional grassroots, self-governance of communities in America is the foundation of our democracy, our representative republic. Governing jurisdictions, as small as towns and villages, may dictate legal policy as to the sale and use of alcohol within their jurisdictions. Yet, they may not proscribe the use of alcohol. This has only been done and repealed by a revision of the U.S. Constitution. Marijuana, like alcohol, should properly be regulated below the Federal level by State and Local Governments only as they regulate commerce within their boundaries. Like alcohol, marijuana requires more regulation than English muffins and wheat bread. Such regulation, though, results from theories of corporate and business structure, and the proper purposes of land use management – zoning restrictions.

If legal in one State, marijuana should be legal in all. And, the existence of the 50 States, and our various political subdivisions and territories, permits American capitalism to experiment. Various business forms may evolve from the art of the “dry county,” the State owned and or regulated, stand alone “brick and mortar” business concern, or the State regulated, corner shop in the interstate or international grocery store.

And, there cannot be an argument for not fully expunging the criminal records of conviction and time served for offenders penalized for personal expression before their governing officials “saw the light.” It goes without saying, then, that, too, all criminal defendants currently “serving time” for marijuana only offenses should be released through existing transitional, reentry programs. Not doing so would be merely a creative theory of law ex post facto.

Lori Gayle Nuckolls, Esq.

Philosophy, Law and Politics

Is the Mandatory Reporting of Convictions to Relevant Agencies Necessary for Fairness and Justice in Our Courts?

Adequate diligence and complete information are necessary for fair and sound decisions by judges, in both civil and criminal matters. Might States benefit from an enhanced requirement that criminal convictions of licensed professionals, for both lesser and more severe offenses, be reported to the State agency governing the defendant’s profession?

A measure before the New York State Legislature, Assembly (A11057-A) and Senate (S8909-A), would amend the New York education law to require reporting to the governing New York State Education Department the criminal convictions and determinations of professional misconduct of persons licensed by the Education Department. The District Attorney for each county within the State of New York would be required to report each conviction of a licensee to the Professional Conduct Officer of the Education Department. The licensee is similarly bound by an obligation of self-reporting. The licensee must self-report criminal convictions to the Education Department. The licensee is also required to report determinations of professional misconduct to the Education Department, regardless of jurisdiction.

A statutory system of fair reporting and due information provides those governed, such as those licensed by the New York Education Department, with both an incentive for proper professional conduct and a deterrence of nonprofessional conduct, before any ill deed is done. Professional codes provide learning within one’s professional disciple throughout one’s career, long after one’s formal academic training. And, a system of fair reporting insures that employers and the courts make fair, adequate and just determinations.

In founding the first American newspaper, Publick Occurrences, first sold in Boston on September 25, 1960, Benjamin Harris stated in his prospectus:

“That something may be done toward the Curing, or at least the Charming of that Spirit of Lying, which prevails amongst us, wherefore nothing shall be entered, but what we have reason to believe is true, repairing to the best fountains for our Information. And when there appears any material mistake in anything that is collected, it shall be corrected in the next. Moreover, the Publisher of these Occurrences is willing to engage, that whereas, there are many False Reports, maliciously made, and spread among us, if any well-minded person will be at the pains to trace any such false Report, so far as to find out and Convict the First Raiser of it, he will in this Paper (unless just Advice be given to the contrary) expose the Name of such Person, as A malicious Raiser of a false Report. It is suppos’d that none will dislike this Proposal, but such as intend to be guilty of so villainous a Crime.”

Neither the public nor the courts benefit from acting upon an absence of information. And, no one subject to a mandatory reporting requirement benefits if deprived of the rehabilitative purpose of ostensibly putative measures by inadequate information.

Lori Gayle Nuckolls, Esq.

Philosophy, Law and Politics

Partisan Politics Be Damned!

I am no longer registered to vote in the United States. I formally resigned my registration in writing last year. I decided that I could no longer be silently accountable for the opinions of any one candidate or office holder for whom I may have voted.

My own political views are not of any one political party nor of any one political party platform. Last year, at 56 years of age; as a lifelong Democrat; as a former student President of the Wellesley College Democrat Club; as an eldest child and only daughter of a retired History teacher who “rubber stamps” the Democratic Party sample ballot at the polls, and who once served as a Democratic Ward Chairman; and as, myself, a former Democratic Precinct Executive who served by appointment in an unrepresented district in which I did not reside and, consequently, in which I could not stand for election, I formally switched parties and now pay national dues to the GOP (the “Grand Old Party” or the Republican National Committee).

I believe that the Republican Party in America professes and is held accountable for a belief in fundamental principles and the rule of law. Thus, their members must offer arguments and critiques based upon an assertion of fundamental principles and reasoning, supported by fact. My personal views and opinions will always differ in some respect from those of others, regardless of political party. Yet, neither candidates nor the rank and file members of any political party should deem themselves possessing a right to deny the necessity and merit of method, regimen, logic, and procedure, for without these guiding principles of democratic society and government, we will not have justice, equity or fairness, no less an equal right of participation.

American Democrats do profess these notions. Though, even with the Clintons, Obamas, and U.S. Attorneys General Reno, Holder, and Lynch, American Democrats expect to be believed and supported merely upon offering time honored liberal sermonizing, without reasoning, without a demonstration of fact, and without a suggestion of specific future action, conduct or policy reform proposals to support their time honored liberal sermonizing. For all the Democratic colleagues across the nation, one would imagine that every Democrat standing for election might easily obtain a great, new legislative proposal for his or her back pocket that could be brought before the public for discussion during the campaign season. The long honored Democratic Senator Robert C. Byrd carried a popularly available edition of the American Constitution in his breast pocket. Where is theirs? Most Republicans are not so flawed.

Lori Gayle Nuckolls, Esq.

Philosophy, Law and Politics

Clarity and Equality in the Ohio Sales Tax Statute?

The following Comment Letter was submitted today to the Ohio General Assembly Joint Committee on Agency Rule Review for consideration during its review of a proposed amendment of an Ohio Sales Tax regulation regarding interstate commerce.

May 10, 2018

Joint Committee on Agency Rule Review

The Ohio General Assembly

Vern Riffe Center

77 South High Street

Concourse Level

Columbus, Ohio 43215

Sent Via Email to: jcarr1@jcarr.state.oh.us

Re: Department of Taxation Proposed Amendment of Rule Number 5703-9-39 (Interstate commerce)

Dear Members of the Joint Committee on Agency Rule Review,

I write with interest in the proposed amendment of Rule Number 5703-9-39 of the Ohio Administrative Code by the Department of Taxation regarding the imposition of a tax upon retail sale transactions between Ohio residents and out-of-state vendors. The Rule Summary and Fiscal Analysis submitted by the Department of Taxation to accompany this proposed amendment states that the Department seeks merely to make grammatical corrections in the Rule and not adopt any substantive changes.

The proposed amendment does not adequately revise the text of the Rule to correct certain wording that is confusing to citizens and residents of the various States who would engage in commerce, as well as those engaging in commerce abroad. For, it does not clearly indicate that purchases are exempt from taxation if delivered via an interstate carrier to either the buyer or the agent of the buyer and, instead, gives the sense that the exemption applies only to interstate carrier deliveries made to an agent.

Similarly, the proposed amendment retains reference to “an agent of his” in acknowledgement that Ohio purchasers of goods from foreign vendors may avail themselves of an agent to receive the goods purchased. Legal drafters in the 21^st century style to no longer use personal pronouns reflective of gender when the concept of gender is not materially relevant to the import and substance of the law.

Finally, the Rule would also lessen confusion if it did not refer to the sales tax as a “retail sales tax” unless such is done consistently throughout Ohio Revised Code Chapter 5703: Sales Tax and Ohio Administrative Code Chapter 5703-9: Sales and Use Tax. For, the sales tax is more often referred to as an “excise tax,” and O.R.C. §5739.02, in implementing the sales tax, expressly states that “an excise tax is hereby levied on each retail sale made in this State.”

In respect of the foregoing, I offer the following modification of the amendment, with proposed changes italicized:

5703-9-39 Interstate commerce.

When tangible personal property is sold within the State and the vendor is obligated to deliver it to a point outside of the State, or to deliver it to a carrier or to the mails for transportation to a point outside of the State, the Ohio Sales sales Tax tax does not apply. However, where tangible personal property pursuant to a sale is delivered in this State to either the buyer or to an its agent, of his other than an interstate carrier the retail Sales Tax sales tax applies, unless the delivery is made by means of an interstate carrier, notwithstanding that the buyer may subsequently transport the property out of the State.

The grant of a sales tax exemption for purchases made by Ohioans from out-of-state vendors whom, themselves, have no physical presence within Ohio or nexus with Ohio, is a great encouragement to the advance of commerce. It provides economic efficiency to domestic purchasers and encourages reciprocity in the tax policy of other States.

I thank you greatly for considering my comments on this Rule. And, I may certainly be contacted as indicated above.

Sincerely,

Lori G. Nuckolls

Philosophy, Law and Politics

Promoting Reasonable and Consistent State Agency Regulation in Ohio

Proposed new regulations of Ohio Executive Agencies are reviewed for adequacy by the Ohio Joint Committee on Agency Rule Review, composed of members of the Ohio Senate and House. In the current proposed revision of Ohio law governing the Joint Committee on Agency Rule Review (SB 221, amending Ohio Revised Code 106.021), perhaps it should be made mandatory that JCARR undertake review of whether a proposed regulation is contrary to law and similarly be required to request an invalidation of a proposed rule by the Ohio General Assembly upon making a finding that a proposed regulation is contrary to law. Under current law, both are left to JCARR’s discretion.

Mandatory review and invalidation is necessary because JCARR should be precluded from permitting unreasonable proposed rules and regulations to become effective. A regulation must be reasonable to be lawful. Agencies should adequately justify their decision making with sufficient analysis and explanation. It is the duty of JCARR to ensure as a balance and check on government that the agencies make wise and reasoned policy choices. JCARR does not supplant its policy choices for that of the agency, rather it only looks to the due and proper procedure and basis upon which the agency relies for the rule its seeks to promulgate. Such a requirement of reasonableness would result in regulation that is consistent with and does not conflict with governing law, without first relying upon a court for judicial review after the harm has been done. No committee of a state legislature should have within its discretion non-action upon arbitrary and capricious proposed agency regulation.

A review of the possible “adverse impact” of a proposed regulation is a preexisting requirement as to Ohio Revised Code 106.021(F). Usually neither an analysis nor finding of a possible adverse impact is reported for consideration as to the validity of a proposed regulation. Review of potential adverse impact usually merely addresses fiscal, business considerations, and not the substantive analysis required in legal drafting.

SB 221, Line 103, amending Ohio Revised Code 101.352, proposes to permit JCARR to seek an agency’s appearance to explain whether current rules reflect the principles and policies of the agency, or rather whether the agency should propose new rules that establish its present basis for regulation. Yet, this duty is permissive and subject to JCARR’s discretion and is not mandatory, even if JCARR is on notice that an agency’s regulations are not up to date? Would a mandatory provision place too great an administrative burden upon JCARR?

SB 221, Line 134, amending Ohio Revised Code 101.352, similarly permits that upon initiating review of an agency’s regulations and receiving an agency’s testimony at a hearing, JCARR “may” but is not required to vote upon whether to recommend that the agency review its regulations. Would making the vote mandatory create a violation of the separation of powers among the legislative, judicial and executive branches? Or, would it no more enhance the power and authority currently permitted JCARR than the creation of its power to review proposed executive agency regulations in the first instance?

SB221, Lines 1541-1619, amending Ohio Revised Code 121.931, permits a person to petition an agency to request a review of whether the agency has not properly revised or restated its regulations. If the agency denies the petition, the petitioner may appear at an agency hearing. In such a proceeding, how is the agency’s standard of review – that the petitioner has shown that the agency’s action in not revising its regulation is “erroneous” – to be defined? Is the burden of proof borne by the petitioner – that the agency’s previously stated “intention to deny the petition [for revision] is erroneous” — the same as a required showing of erroneousness by the petitioner as to the agency’s rationale for not granting the petition and undertaking a revision or restatement of the rule? Does an inquiry as to whether the agency’s action is erroneous go only to questions of fact or also to whether the agency may have committed an error of law? Is a finding of erroneousness too high a standard for the petitioner to bear? Given that a petitioner may not appeal a denial of a petition within the agency, is an agency denial of a petition a final agency action permitting judicial review?

Do Young People Understand the Creation of the Law?

When looking at our three branches of government in America this electoral season, the role, place and stature of the executive, legislative and judicial branches should be well studied, Federal, State and Local. All citizens and residents, of all ages, should know the names of our governing officials from all three branches and their role in our community.

In guiding our young people, we need to go beyond a mention or two of the name of our Congressperson or the name of the Mayor or a member of our City Council. Children in this the second decade of our 21st century are truly knowledgeable of current events in the modern era, more so than ever in America’s history. They have seen the most recent national elections and campaigns. The know by first name Barack, Bernie, Bill, Colin, Condoleezza, Eric, George Sr., George W., Hillary, Loretta, Madeleine, and Mitt. They know that the current President is Donald and that the next might be Joe III.

Yet, we must share with them more than this. Especially, our young people need an acknowledgment and appreciation of the scholarship of the judiciary. Popular understanding of our judicial system and its stewards guarantees the freedom of thought of those who appear before them as well as of our nation. Judicial decision making in the public interest benefits from a knowledgeable public.

A truly fundamental common law subject as the creation of a contract may provide a basis for an objective discussion of how we learn from our Judges and so gain an equal understanding of the three branches of government in America. Contract law is of general interest, noncontroversial and permits discussion of the art of the judiciary.

An example is taken from a legal opinion written by Federal Magistrate Judge Michael Newman of the Southern District of Ohio. Judge Newman is the recent President of the Federal Bar Association. His term in private legal practice prior to the bench was as a law firm Partner in Cincinnati and was lengthy and well accomplished.

In Traton News LLC v. Traton Corp., No. 3:11-cv-435, 914 F. Supp. 2d 901, (S.D. Ohio 2012), Judge Newman expressly acknowledged that the case posed “an issue of first impression in [his] Court.” 914 F. Supp. 2d at 909. Namely, the question newly presented was whether a person using the Internet and who accesses a certain website, in doing so, agrees to the Terms and Conditions set forth in the website as specified by the Terms and Conditions. And, would this create a binding agreement that would support personal jurisdiction pursuant to the governing Terms and Conditions? Judge Newman found that this did not create a contract for want of consideration. In this instance, the Internet user accessing the website did not receive a benefit supporting the existence of a bilateral contractual obligation.

We must appreciate such judicial thought and show such appreciation with greater encouragement of participation in community and government discussion? Popular understanding that Judges impart wisdom when new questions arise is needed. Civil peace and understanding require that young people learn American government at a young age.

In Cincinnati, do young teenagers understand the theory of the judiciary and its role in fashioning our common law from our amorphous popular thinking? In theory, Judges turn custom into law, and in fashioning the law, they educate our customs. The scholars of William Blackstone argue that our customs may only become common law if their tenets conform to our sense of natural reason and justice. Do we teach this to our young people so that they may grow up to understand an increasingly more complex nation, with a far more applicable hierarchy of institutions of higher education in that all of us within the 50 states must defer to the established hierarchy of universities and colleges? The young in turn may guide their parents in an increased understanding of the modern world and a respect for the judiciary.

The American public must be taught to defer to the constitutional function of the judiciary: the administration of legal decision making as to residents, citizens and government. With the fragile delicacy of Marbury v. Madison in its creation of our doctrine of judicial review, all within our nation must respect the separate, equitable power of the American Judiciary as to the executive and legislative branches of government. Popular understanding of our popular self-interest, in a country whose government force and power are derived and ensured only as individuals understand our principles of government, will only be stronger.

Lori Gayle Nuckolls, Esq.

Our Duties as Ohio Citizens to Cultivate a Life of Learning

We should encourage self-sustaining government that develops our young people within the State of Ohio to participate nationally. Ohio cannot rely upon benevolent carpetbaggers to serve in office so that Ohio can compete nationally. Our own citizens and residents may seek a national education in noteworthy academic institutions across the nation and return to Ohio.

With the advent of Universal Pre-K education throughout Ohio, we can guarantee that our young people benefit from modern America and the great advances in learning and ability our young people now possess. Pre-K program and curriculum should enable the great diversity discernible among our children to be encouraged. Current educational scholarship and learning allows humane “tracking” among the very young by interest, inclination and ability. Achievements should be cultivated from advanced classical curriculum to that mitigating and correcting learning disadvantages whether societal or physiological.

In “Keeping-up-with-the Joneses,” Ohio schools and businesses must also look to self-sustainability in promoting development in energy resources. For, without energy resources modern society cannot exist. Our universities might not invent our energy patents in use, but we must provide a didactic rubric for competitive development of alternative energy sources within our State. Ohio government must look to academics and scientists within the State of Ohio to aid in drafting and revising statutes and administrative regulations that provide an overarching framework for bringing energy technology into Ohio. Interstate collaboration will permit a long viable modernization of the energy industry in Ohio. Our laws and regulations must be competitive.

Perhaps Former Speaker John Boehner and his soon to be The Boehner Institute at Xavier University in Cincinnati might begin policy formulation and regulation drafting on the topics of education, energy, management of government bureaucracies, as well as many others.

Lori Gayle Nuckolls

Is a Failure to Prosecute Utterances of “Hate Speech” and “Fighting Words” a Violation of Due Process by Ohio County Prosecutors in Not Protecting the Victim’s Constitutional Rights of Liberty, Privacy and Personhood?

Under Ohio law, Ohio Revised Code § 2917.11 regulates “hate speech” or “fighting words.” This statute expressly prescribes “offensively coarse utterance [and] gesture[,]” and “insulting [or] taunting [conduct] … likely to provoke a violent response.” § 2917.11(A)(2), (3). This law lies within criminal provisions of the Ohio Revised Code denominated “Disorderly Conduct,” as one of many “Offenses Against the Public Peace” of Chapter 2917. Has any duly elected Ohio County Prosecutor recently invoked this provision?

How does the community resident evaluate whether the absence of arrest and prosecution in his or her Ohio County is a proper exercise of prosecutorial discretion in regulating conduct under Ohio law? In what other ways are the constitutionally protected, basic and fundamental rights of Ohio citizens and residents to privacy and personhood, as incumbent within our essential rights of liberty and freedom, protected from independent, idiosyncratic, and isolated acts of speech contrary to personal integrity?

Ohio Revised Code § 2917.11 should be used by Ohio County Prosecutors to guide popular conduct, as a didactic tool. Section 2917.11 deters visceral, unkind speech directed, especially, to a person the potential perpetrator does not even know. And, importantly, this law looks to proscribe harmful words spoken when no logical rationale exists for devolving into such conduct when long historically permitted forms of expression and advocacy exist.

If traditional forms of expression, speech and participatory politics are possible, conduct subject to prosecution under Ohio Revised Code § 2917.17 only evokes either fear harmful to one’s sense of personhood or, more difficultly, fear expressed in the form of a harmful or violent response from the victim of the unkind speech. Do we instead prosecute the victim for engaging in an improper response to unprovoked hate speech and let the utterer of fighting words go free? Why is the fearful, dependent spouse convicted of homicide for shooting a long abusive, domineering spouse while asleep and unlikely to rise up in confrontation? When is self-defense illegal?

Is an Ohio County Prosecutor’s failure to prosecute hate speech and fighting words an unconstitutional disregard for the right of every individual to liberty, privacy and personal integrity, all long respected by the U.S. Supreme Court? Should the Ohio County Prosecutor, as a state actor, be subject to civil action, under Section 1983 of Title 42 of the U.S. Code, for such a failure to prosecute? The right to Due Process includes one’s liberty interests, and the duty of the Ohio County Prosecutor to protect the liberty interests of Ohio citizens and residents subject to personally intrusive fighting words and hate speech by prosecuting those engaging in hateful speech. Does Section 1983 include a substantive due process right to challenge in Federal Court an Ohio County Prosecutor for the absence of prosecution of fighting words perpetrators under Ohio law?

The consequences arising from an Ohio County Prosecutor’s decision to not prosecute acts criminal under Ohio Revised Code § 2917.11 are self-defining and derive inherently from the Anglo-American Common Law giving rise to the U.S. Constitution. A want of review, regulation and criminalization results in a perpetuation and acculturation of illegal intent and conduct within our country. American criminal law has many purposes, including, deterrence, rehabilitation, restitution and retribution. Laws exist on the “statute books” for a reason. These are the reasons for Ohio Revised Code § 2917.11 .

How do we begin? How does the first individual abused as to self and personhood come forward in Federal Court and ask why his or her Ohio County Prosecutor did not seek redress on his or her behalf under expressly worded Ohio Law? Should such prosecution on the individual’s behalf be so permissive, and not a mandatory obligation of the duly ethical Ohio County Prosecutor under the professional rules and judicial decisions of the Ohio Supreme Court?

Life in our American Republic requires free speech and a sense of participation without fear and without improper inhibition. Justice and fairness in our democracy require that Ohio County Prosecutors act zealously, with best efforts and with a sense of being conservative to the utmost. Non action and a failure to prosecute potential perpetrators under enacted legislation is not conservative, it is the opposite. Prosecutorial discretion is both permissive and mandatory. Where do our State and Federal Courts draw the line?

In a democracy, free speech is a property right. It is not to only be accorded governmental protection as a permissive privilege. In America, a citizen or resident should not feel as if he or she must ask permission of an equal to speak or live, for fear of becoming a victim of hostile words. He or she should freely speak. If the equal is inhibiting in a manner contrary to § 2917.11, the Ohio County Prosecutor should act.

Lori Gayle Nuckolls

America Relies Upon a Learned and Informed Public

In the United States, as a country of a majority population that is not indigenous to its North American soil, how do we reconcile nationalism and democracy? As a community of diverse ethnic origins and heritages, diverse faiths, and diverse periods of time resident within the county, can an existence of a nation-state community ever be achieved? Does the theory of the “melting pot” of an immigrant nation undo properly existing cultural lines of identity that are distinct, have merit and are centuries old?

We should encourage a community diverse in cultural identity that lives under the governing principles of American democracy: equality, freedom, and justice. In America, its people have freely chosen to reside under America’s governing principles. Citizenship and the rights of noncitizen residents transcend the diverse cultural identities of national origin. America’s governing principles, constitutions and laws create an equal right to personhood and identity that transcends governmental decision making based upon stereotypes and, especially pejorative, presumptions. The rule of law does not look to one’s culture, ethnicity or religion.

The governing principles of America are created, respected and maintained by an academically learned intelligentsia that exercises a just governance of the majority. An educated public and deference to individual merit and ability are the foundations of a democracy. A state cannot survive without an educated public, whether possessing one or many national identities.

In our world, only representative democracies are viable forms of government. Direct democracies defy the economy of scale required for complex decision making and regulation in the modern age and are not even attempted. Dictatorships, with the veil of legislative and military decision-making especially during the post-colonial period the 1900’s, can neither demand nor evoke a legally compliant population of self-governing individuals.

Without a public that understands the principles of America as a country from a young age of early education between grades 4 to 6, with reaffirmation in between both grades 7 to 9 and grades 10 to 12, our public will not be able to participate as citizens and residents as they engage in specialized careers of science, business and nonpublic policy fields. Thus, all college students should have a required course in the fundamentals of American government.

All in America bear the responsibility of treating all among us as free and equal, with rights and privileges of fairness and justice. Our world is complex, and all Americans must be sufficiently learned to debate and understand America and their own place in the world.

Lori Gayle Nuckolls, Esq.

Popular Participation and Involvement is Truly Feasible and Obligatory, Even as to the Most Complex Subject Matters of State Action (Comments submited to the U.S. Securities and Exchange Commission.)

I submitted the Comments below in response to a Notice of formal Rulemaking by the U.S. Securities and Exchange Commission.

Lori Gayle Nuckolls, Esq.

January 22, 2018

Secretary

Securities and Exchange Commission

100 F Street NE

Washington, DC 20549-1090

Sent via Email to: rule-comments@sec.gov

Re: File Number S7-09-17

Dear Secretary,

I write with interest in the proposed amendment of 17 C.F.R. Part 200, and the promulgation of regulations, to be codified at 17 C.F.R. §§ 200.80-200.80(g), by the Securities and Exchange Commission (the “SEC” or, alternatively, the “Commission”) regarding agency compliance with the Freedom of Information Act (the “FOIA”), 5 U.S.C §522, as amended by the FOIA Improvement Act of 2016 (the “Improvement Act”), Public Law 114-185, 130 Stat. 538. Please consider this letter submission of comments upon this proposed rule in response to the Commission’s notice of proposed rulemaking and request for comments, as published in the Federal Register, on January 3, 2018, 83 Fed. Reg. 291-302. I support this new rule and I believe it achieves the Commission’s primary objectives as stated in the notice: to make revisions required by the Improvement Act, as well as to amend beyond the scope of the Improvement Act and utilize the necessary amendment to also “clarify, update, and streamline” current SEC regulation. 83 Fed. Reg. 292 (2018).

The supplementary information in the notice of this proposed rule states that the new rule essentially “codifies several existing practices” of the SEC, such as electronic responses to information requests and determination of the fees charged therefor. 83 Fed. Reg. 293 (2018). The SEC is longstanding, truly, in its fair reliance upon the incentives inherent within the American economy, and its principles of capitalism, to utilize advances in science and technology, primarily of the profit based commercial sector and marketplace, to the benefit of not only securities investors but also to the benefit of the nation.

In summary, the proposed rule permits reliance by major corporations upon information technologies currently in use, yet ensures individual requesters that their requests will be neither costly nor burdensome, with codification of a permissive outline of fees to be charged. 83 Fed. Reg. 299 (2018) (to be codified at 17 C.F.R. § 200.80(g)(3)(i)). The proposed rule revises SEC FOIA request and response procedures to require the SEC to make disclosures of information available to the public in both the existing, traditional paper form as well as in various newly available electronic forms. 83 Fed. Reg. 295 (2018) (to be codified at 17 C.F.R. § 200.80(a)). The new rule also provides all with assurances as to issues of privacy and financial records and data. 83 Fed. Reg. 295-296 (2018) (to be codified at 17 C.F.R. §200.80(b), (c)).

As in this instance, the SEC periodically refines and revises its own internal standards and procedures. It relies upon these informal decisions to transform intra-agency custom unto newly promulgated governing regulation. This proposed new rule is such an example. This rule provides user friendly information in which all participants, or, as denominated by the SEC “stakeholders,” in the global economy may share through due compliance, from the small individual investor, to the small, medium and large domestic or multinational business entity.

The new rule expressly acknowledges the various uses made of government information by diverse international market participants. For, it categorizes and defines anticipated requesters of information, from the individual investor, the commercial entity, the publicly interested academic or scientific organization, to the journalist of the fourth estate. 82 Fed. Reg. 298-301 (2018) (to be codified at 17 C.F.R. §200.80(g)).

The SEC further achieves great clarity for the benefit of the public, as well as for the other branches of government, in that this new rule proposes to also define and explain the services the SEC offers and relies upon in responding to requests for information. 82 Fed. Reg. 298-302 (2018) (to be codified at 17 C.F.R. §200.80(g)). The rule states that a “search” for information maintained by agencies of the Federal government is agency action to determine whether information is relevant to a specific request, contra distinct from a “review” of records maintained by agencies of the Federal government, which is agency action to determine whether specific information requested is exempt from disclosure as required by law. 82 Fed. Reg. 299 (2018) (to be codified at 17 C.F.R. §200.80(g)(2)(vii), (viii)). And, the SEC charges fees for these defined services which vary according to the category of a specific information requester. 82 Fed. Reg. 299-300 (2018) (to be codified at 17 C.F.R. §200.80(g)(3), (4)).

The new rule places the burden of compliance with SEC FOIA request procedures, not upon the requester of information but, rather, upon the SEC itself. In that, the new rule requires that SEC staff members provide individual guidance to requesters, both before the requester initiates a request, and after the SEC acknowledges having received a request. 82 Fed. Reg. 296 (2018) (to be codified at 17 C.F.R. §200.80(b)(3)). The new rule, though cautioning requesters that the SEC Office of FOIA Services is primarily responsible for evaluating information requests, expressly provides guidance for requests “misdirected” to a division or office of the SEC other than the Office of FOIA Services. The rule also indicates that the SEC will collaborate, both intra-agency within the SEC and among the other Federal agencies, if necessary in order to respond to a request for information. 82 Fed. Reg. 296 (2018) (to be codified at 17 C.F.R. §200.80(c)(2), (3)).

In drafting and promulgating regulation over a practitioner’s continuum, the SEC achieves equilibrium in the burden of regulatory compliance to be borne itself, as the governing agency, and as to that to be borne by the public. It, thus, internally evaluates regulatory alternatives prior to offering a new rule for public review. The SEC both protects and encourages investment and maintains market efficiency, and thereby produces national prosperity and capital growth. It gleans, from public participation, research that provides diversity in thought in policy making, examination and enforcement, and so provides both information and guidance to private investors.

I thank you greatly for considering my comments on this rule. And, I may certainly be contacted as indicated above.

Sincerely,

Lori G. Nuckolls