Edelman v. Securities and Exchange Commission
239 F. Supp. 3d 45
D.D.C.2017Background
- Plaintiff Richard Edelman submitted six FOIA requests to the SEC in 2014 seeking records about the proposed conversion of the Empire State Building into Empire State Realty Trust (ESRT), including a “Consumer Complaints” request for complaints and notes of interviews with complainants.
- The SEC initially produced 2,034 pages but withheld material under FOIA Exemptions 5 and 6 and treated certain attorney notes as non-FOIA records; Edelman sued and moved for summary judgment contesting search adequacy and withholdings.
- The Court (Edelman I) ordered the SEC to search for the complaints themselves (not just documents about them) and to search 112 pages of attorney notes, produce non-exempt pages, and submit a supplemental Vaughn index.
- The SEC conducted additional searches (primarily SharePoint and certain attorneys’ emails), produced ~1,446 pages of consumer-complaint documents and 71 pages of attorney notes, and withheld material under Exemptions 5 and 6; parties renewed cross-motions for summary judgment.
- The district court reviewed (1) adequacy of the supplemental search, (2) Exemption 5 deliberative-process withholdings, and (3) Exemption 6 redactions of complainants’ identities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of search for consumer complaints | Edelman says the SEC’s search was inadequate because some complainants say their written complaints do not appear and SEC limited searches to SharePoint | SEC says CF staff uploaded all external complaints to SharePoint; it searched SharePoint and key attorneys’ emails and produced responsive written complaints | Held: SEC’s search was adequate — using reasonable systems (SharePoint and attorneys’ emails) met FOIA search obligations; missing items may be oral complaints or lost |
| Exemption 5 (deliberative-process) withholdings | Edelman contends SEC failed to identify the deliberative processes and improperly redacted factual material and staff comments | SEC provided a supplemental Vaughn index describing the predecisional deliberations and limited redactions to deliberative material | Held: SEC met its burden; Exemption 5 withholdings of predecisional, deliberative material were proper given the detailed non-conclusory affidavits and Vaughn index |
| Exemption 6 (identities of complainants) | Edelman contends complainants’ privacy interests are weak (commercial matters; some consented) and disclosure serves public interest in knowing who influenced SEC decisions | SEC argues disclosure risks harassment and would not advance public understanding of agency operations; withheld names under Exemption 6 | Held: Court rejects blanket Exemption 6 withholding. Because balancing is fact-specific and the record is incomplete, summary judgment is denied on this issue and SEC must reassess and provide a more detailed factual/legal showing if dispute remains |
Key Cases Cited
- Iturralde v. Comptroller of Currency, 315 F.3d 311 (D.C. Cir.) (failure to find a particular document alone does not render a search inadequate)
- Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1 (D.C. Cir.) (deliberative-process privilege protects predecisional, deliberative materials)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (formulation of the deliberative-process privilege)
- Judicial Watch, Inc. v. FDA, 449 F.3d 141 (D.C. Cir.) (discusses predecisional and deliberative standards under Exemption 5)
- Board of Trade v. Commodity Futures Trading Comm’n, 627 F.2d 392 (D.C. Cir.) (addresses Exemption 6 balancing and privacy interests for commercial complaints)
- U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595 (1982) (broad reading of "similar files" in Exemption 6 to include information applying to an individual)
- Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57 (D.C. Cir.) (agency need not search every record system; must use methods reasonably expected to locate responsive records)
- Wash. Post Co. v. U.S. Dep’t of Health & Human Servs., 690 F.2d 252 (D.C. Cir.) (privacy-release balancing and caution against allowing confidentiality promises to eviscerate FOIA)