If the public still wants to know what a corporate monitor had to say about American International Group Inc.’s financial dealings leading up to the economic collapse of 2008, it will have to wait.
The U.S. Court of Appeals for the District of Columbia Circuit on Friday issued a ruling in AIG's favor, denying an ALM reporter's efforts to obtain the monitor's reports and saying the reports are not public record. (ALM is the parent company of Corporate Counsel.) AIG’s lawyer, William Jeffress Jr. of Baker Botts, declined comment on the decision.
Attorney J. Joshua Wheeler, who had argued that the records were public, said, “We are in the process of reviewing the court's opinion to determine what options are available to us.” Wheeler is director of The Thomas Jefferson Center for the Protection of Free Expression in Charlottesville, Virginia.
Wheeler added, “For now, all I can say is today’s decision does not alter our belief that the public interest would be served by the release of the reports.”
The case started when ALM reporter Sue Reisinger filed suit in 2011, following the Securities and Exchange Commission’s refusal to release the reports after various requests, including one under the Freedom of Information Act. The monitor, or independent consultant as AIG prefers to call him, was James Cole, now deputy attorney general.
The suit alleged that AIG played a significant role in the global economic crash and that Cole’s reports from the years 2004 to 2008—which were required under AIG’s settlements with the SEC and the U.S. Department of Justice—were crucial to the public’s understanding of what went wrong.
U.S. taxpayers funded a $182 billion bailout of AIG, which the company has paid back, to keep the insurer from bankruptcy and from taking numerous banks around the world down with it.
Both AIG and the SEC opposed the release of the reports in U.S. District Court. But only AIG appealed the lower court’s ruling that there was a common law right to access to the documents because they were judicial records.
The documents were not released pending the appeals court decision. On Friday a three-judge panel said there is neither a First Amendment nor a common law right of access to the reports.
Writing the per curiam opinion, Circuit Judge Janice Rogers Brown said the records are “not aspects of court proceedings,” and that the independent consultant had no relationship with the court.
“Nothing in the record suggests the district court cared a whit about the results of the independent consultant’s investigation as long as AIG in fact initiated the investigation,” Brown wrote. “Disclosure of the reports would do nothing to further judicial accountability.”
Brown concluded, “If the [SEC] can appropriately refuse to disclose the reports under FOIA—we take no position on the matter—then so be it.”
See also, "In D.C. Circuit, AIG Defends Confidentiality of Corporate Monitor Reports," LegalTimes, December 2012.
