795 F. Supp. 2d 43
D.D.C.2011Background
- Cuban sues the SEC under FOIA and Privacy Act seeking records and challenging the adequacy of the SEC's searches and its exemptions.
- Court previously granted in part and denied in part cross-motions for partial summary judgment on September 22, 2010, ruling that searches and some withholdings were inadequately substantiated.
- Defendant moved for reconsideration under Fed. R. Civ. P. 54(b) arguing new declarations and Vaughn indices show adequate searches and proper exemptions; Cuban opposed.
- Category 7 concerns SEC personnel trading Copernic securities; declarations show some forms can be searched electronically (Form 681) while others are paper-held.
- Categories 11, 12, and 13 concern OIG investigatory records; supplemental declarations were found lacking in detail to assess search adequacy.
- Court grants reconsideration in part: Category 7 search deemed adequate; Categories 11-13 searches remain inadequately described and require further searches; several exemptions are sustained for various documents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of search for Category 7 | Cuban argues search was inadequate and manual review burdens were excessive. | SEC shows Form 681 electronic search plus limited manual review, argued to be reasonable. | Category 7 search adequate; no further search required. |
| Adequacy of searches for Categories 11-13 | Maloney declaration remains vague on search terms and methods. | Maloney declaration sufficient after supplementation to describe searches. | Insufficient new detail; further searches required for Categories 11-13. |
| Exemption 5 - deliberative process privilege | Second Revised Vaughn Index remains too conclusory to justify withholding. | New details show particular documents reflect predecisional deliberations. | Documents 11, 42, 45, 62 exempt; other DP redactions require more specificity. |
| Exemption 5 - attorney work product | Documents withheld as work product are ordinary disciplinary records, not litigation-focused. | Declarations show litigation was reasonably anticipated; materials prepared for that purpose. | Documents 11, 13, 25-29, 31-37, 39, 41-44, 53-55, 57, 59-63 protected as work product. |
| Exemption 6 and 7(C) privacy interests | Redactions should suffice; broad withholding unnecessary. | Public interest outweighed by privacy; but need for more detailed justification. | Exemption 6 and 7(C) partial redaction insufficiently justified; further explanation or in camera review available. |
| Exemption 3(A) – Bank Secrecy Act reports (Documents 50-51) | New exemption not raised earlier; FOIA-based withholding should be reviewed. | Statutory bar in 31 U.S.C. § 5319 prohibits disclosure of suspicious activity reports. | Exemption 3(A) applies; Documents 50-51 nondisclosable. |
Key Cases Cited
- Oglesby v. U.S. Dep't of the Army, 920 F.2d 57 (D.C.Cir.1990) (requirement of detailed search affidavits for FOIA compliance)
- In re Sealed Case, 146 F.3d 881 (D.C.Cir.1998) (work product protection requires litigation-focused rationale)
- National Trust for Historic Pres. v. Dep't of State, 834 F. Supp. 453 (D.D.C.1993) (reflects limits on reconsideration standards in FOIA matters)
- Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865 (D.C.Cir.2010) (deliberative process privilege requires more than conclusory assertions)
- National Inst. of Military Justice v. U.S. Dep't of Def., 404 F. Supp. 2d 325 (D.D.C.2005) (context for good faith searches and reasonableness of efforts)
- Sussman v. U.S. Marshals Serv., 494 F.3d 1106 (D.C.Cir.2007) (privacy versus public interest in exemptions 6/7(C) analysis)