MEMORANDUM OPINION
This matter is currently before the Court on the defendant’s Motion for Reconsideration pursuant to Federal Rule of Civil Procedure 54.
See
Defendant’s Motion for Reconsideration (“Def.’s Mot. Recons.”); Plaintiffs Memorandum in Opposition to Defendant’s Motion for Reconsideration. (“Pl.’s Opp’n Mot. Recons.”).
1
The defendant seeks reconsid
I. BACKGROUND
The facts in this case were discussed in detail in the Court’s September 22, 2010 Memorandum Opinion, and thus will only be reiterated here to the extent necessary to resolve the pending motion.
See
Sept. 22 Mem. Op.,
II. STANDARD OF REVIEW
The defendant’s motion is brought pursuant to Federal Rule of Civil Procedure 54. Def.’s Mot. Recons, at 2. Rule 54 states that
any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims orparties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.
Fed.R.Civ.P. 54(b). Court action that terminates fewer than all claims in a case is considered interlocutory rather than a final decision and subject to revision at any time.
See Langevine v. District of Columbia,
III. LEGAL ANALYSIS
A. Adequacy of the Defendant’s Searches for Responsive Records
An agency to which a request for the production of documents is made is obligated -to demonstrate the adequacy of its search for those documents by providing a “reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials ... were searched.”
Oglesby v. U.S. Dep’t of the Army,
In its September 22, 2010 Memorandum Opinion, the Court explained why it was not convinced that the defendant had fulfilled its search obligations. Sept. 22 Mem. Op.,
1. Category 7
Category 7 of the plaintiffs Request Letter I seeks information concerning SEC personnel who traded in Copernic, Inc. securities.
4
Def.’s Mot. Recons, at 2-3. In support of its motion for reconsideration, the SEC has submitted the declarations of Shira Pavis Minton and David Cunningham, which “describe the forms the SEC collected ... about securities owned by SEC personnel, the efforts the SEC staff made to search those forms, and why a further search is not feasible.”
5
Id.
at 3;
see id.,
Exs. 16 (Declaration of Shira Pavis Minton (“Minton Decl.”)) & 17 (Dec
The plaintiff asserts that the SEC’s declarations submitted in support of its motion for reconsideration again demonstrate that the SEC’s search for responsive documents was inadequate. Pl.’s Opp’n Mot. Recons, at 2. The plaintiff further contends that the SEC’s assertion that a manual search for responsive documents is “not feasible” should be rejected, arguing that searching twelve drawers for the two types of documents not available electronically is not an unreasonable burden. Id. at 2-3 & n. 6.
In the September 22, 2010 Memorandum Opinion, the Court emphasized that the declaration of William Lenox, which stated that “it is not possible to perform an electronic search of these records,” was insufficient because it “d[id] not indicate with specificity how the employee files are maintained, how they could be searched, and why an electronic search of the files is not even feasible.” Sept. 22 Mem. Op.,
The SEC has identified three forms routinely completed by SEC employees that may contain the “trading history by SEC personnel in Copernic securities” that the plaintiffs Request Letter I seeks to obtain with Category 7: the Confidential Financial Disclosure Report, the Public Financial Disclosure Report, and Form 681.
See
Def.’s Mot. Recons., Ex. 16 (Minton Deck) ¶ 5;
id.,
Ex. 17 (Cunningham Decl.) ¶ 6. The declaration of Shira Pavis Minton describes the Confidential Disclosure Report (“OGE 450”) and the Public Financial Disclosure Report (“SF 278”).
Id.,
Ex. 16 (Minton Decl.) ¶¶6-17. The OGE 450, which contains information concerning an employee’s holdings, is “maintained exclusively in paper form for a period of six years.”
Id.,
Ex. 16 (Minton Decl.) ¶ 8. The SEC currently has paper copies of the OGE 450s as of 2004, and the files are organized alphabetically by the employees’ surnames.
Id.,
Ex. 16 (Minton Decl.) ¶¶ 8, 9. “These paper files are not organized, categorized, or indexed by [the name of the] security.”
Id.,
Ex. 16 (Minton Decl.) ¶ 9. The OGE 450 cannot be searched electronically for specific securities and can only be searched by a “manual page-by-page, line-by-line review of thousands of paper OGE 450s filed by every current and former SEC employee during the past six years.”
Id.,
Ex. 16 (Minton Decl.) ¶ 10. The files containing the OGE 450s “fill approximately two lateral cabinets with five drawers each.”
Id.,
Ex. 16 (Minton Decl.) ¶ 11. Similarly, the SF 278, a form disclosing all assets owned by an SEC employee, is maintained exclusively in paper form for six years, and the SEC currently has the SF 278s from October 2004 to the present. •
Id.,
Ex. 16 (Minton Decl.) ¶¶ 13, 14. These documents are also organized by the employees’ surnames; they are similarly not organized, categorized, or indexed by security, and cannot be searched electronically.
Id.,
Ex. 16 (Min-ton Decl.) ¶¶ 15, 16. Searching these documents would likewise require a “manual
While the OGE 450s and the SF 278s cannot be searched electronically, Form 681 can be. The declaration of David Cunningham describes how “[e]very acquisition or sale of a security by an employee was required to be reported to [the Office of Human Resources] on Form 681.” Def.’s Mot. Recons., Ex. 17 (Cunningham Decl.) ¶ 6. “The data from some Form 681s were entered and recorded on an electronic Access database ... [, which] contains data from approximately 145,000 forms and represents a substantial subset of the data recorded and maintained.... ” Id., Ex. 17 (Cunningham Decl.) ¶ 8. SEC personnel conducted electronic searches of the forms for the seven entities listed in the plaintiffs FOIA request, id., Ex. 17 (Cunningham Decl.) ¶ 10, and the Cunningham declaration lists the search terms used to conduct the electronic search, id., Ex. 17 (Cunningham Decl.) ¶ 11 (listing “copernic,” “mamma,” “intasys,” “smartel,” “call-tech,” “health,” “care,” “product,” and “quartet” as the search terms used). The declaration also explains that the manner in which the search was conducted would have yielded results even where only a fragment of these search terms existed in a particular document. Id., Ex. 17 (Cunningham Decl.) ¶¶ 11, 12 (“By placing the ... search terms ... between asterisk marks, quotation marks, and a parentheses, preceded by the word ‘Like,’ the Form 681 Database was searched ... for any instance where those words appeared as a word or word fragment.”). Similar to OGE 450 and SF 278, the Form 681s are also maintained for six years in paper form. Id., Ex. 17 (Cunningham Decl.) ¶¶ 14, 15. The ability to search the SEC’s current electronic system is compromised by the fact that “it is not clear which Form 681s are not contained in the electronic database” and thus, to search those Form 681s not in the electronic database the agency would have to search all of the Form 681s manually, even the 145,000 forms that already have been searched electronically. Id., Ex. 17 (Cunningham Decl.) ¶ 16. The paper copies of the Form 681s are stored in “approximately 260 linear feet of cabinet space.” Id., Ex. 17 (Cunningham Decl.) ¶ 17.
The newly filed declarations of Shira Pavis Minton and David Cunningham provide the Court with the requested description of the forms, how the forms are maintained, and why the forms cannot feasibly or reasonably be searched further. The documents that could be searched electronically, the Form 681s, have already been searched, and although every single form may not have been searched, over 145,000 were searched with no results.
See id.,
Ex. 17 (Cunningham Decl.) ¶ 8. As noted earlier, Category 7 requests “Records of any trading history by SEC personnel in Copernic securities.” Def.’s Mot. for Recons., Ex. 7 (Declaration of Noelle Frangipane) at Ex. B (Request Letter). While the OGE 450s, the SF 278s, and the Form 681s not included in the electronic database could be searched manually, the electronic search of the Form 681s, which report all securities transactions by SEC employees since 2004, adequately assesses the trading history sought by the plaintiff in his FOIA request because agencies are only required to “conduct a good faith, reasonable search of those systems of records likely to possess the requested information,”
In’t Veld v. Dep’t of Homeland Sec.,
2. Categories 11, 12, & IS
Categories 11, 12, and 13 of the plaintiffs Request Letter I “focused upon various allegations of misconduct by SEC employees in the course of investigations.” Pl.’s Opp’n Mot. Recons, at 3 n.7. With regard to categories 11, 12, and 13, which request investigatory records from the Office of Inspector General (“OIG”), the SEC has submitted the supplemental declaration of Deputy Inspector General, Noelle Maloney (formerly Frangipane), who maintains that the defendant adequately describes the OIG’s search for responsive documents. Def.’s Mot. Recons, at 3; Def.’s Mot. Recons., Ex. 18 (Second Supplemental Declaration of Noelle L. Maloney (“2d. Suppl. Maloney Decl.”)) ¶ 1.
The plaintiff contends that the Maloney declaration “still fails to provide the Court with a sufficient basis to determine whether additional electronic searches can or need to be conducted.” PL’s Opp’n Mot. Recons, at 3. The plaintiff points out that Noelle Maloney stated that she “reviewed indexes of investigations maintained by the OIG,” but that she does not address “what search terms were used” or “the level of detail or thoroughness with which the search for Categories 11-13 was conducted.” Id.
The Court must again find the supplemental declaration of Noelle Maloney “woefully lacking of the detail necessary for the Court to assess the adequacy of the search.” Sept. 22 Mem. Op.,
B. The Exemptions Relied Upon by the Defendant for Its Withholding of Responsive Documents
The SEC has produced to the plaintiff Documents 4, 10, 20, 21, 23, 24, 29, 58, 61, 66,
7
and 78-80, with all personal identify
1. Exemption 5 9
Exemption 5 of the FOIA provides that “inter-agency or intra-agency memo-rand[a] or letters which would not be available by law to a party other than an agency in litigation with the agency” are not subject to disclosure under the FOIA. 5 U.S.C. § 552(b)(5). Three traditional evidentiary and discovery privileges are encompassed by Exemption 5: (1) the deliberative process privilege; (2) the attorney-client privilege; and (3) the attorney work-product privilege.
NLRB v. Sears, Roebuck & Co.,
a. Deliberative Process Privilege
“To qualify under Exemption 5 [based on the deliberative process privilege], a document must ... be a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters. A document that does nothing more than explain an existing policy cannot be considered deliberative.”
Pub. Citizen, Inc. v. Office of Mgmt. & Budget,
The SEC is withholding Documents 1-3, 11, 13,14, 22, 25-28, 29, 32, 33-35, 37-46, 48, 49, 52-57, 59-60, 61 ..., 62-64, 69, 71, and 73-76 (collectively the “DP documents”) on the ground that they are protected from disclosure under the deliberative process privilege. 10 See Def.’s Mot. Recons, at 3. The defendant points to the Second Revised Vaughn Index and the Second Supplemental Declaration of Nancy Ellen Tyler as evidence that the documents relate to “several disciplinary proceedings and contain or reflect the internal deliberations of SEC management ... on potential disciplinary actions.” Id. at 4. And the defendant maintains that the “Second Revised Vaughn Index explains the deliberative nature of each DP document.” Id.
The plaintiff, on the other hand, argues that the “SEC’s newly submitted materials are scarcely more informative than those already held insufficient by the Court.” Pl.’s Opp’n Mot. Recons, at 6. Accordingly, the plaintiff also asserts that the Second Revised Vaughn Index “is not more informative!,] and [it] still asserts in conclusory fashion that the documents contain predecisional deliberations.” Id.
With regard to the documents withheld under the deliberate process privilege, the Court agrees with the plaintiff that, except for Documents 11, 42, 45, and 62, sufficient new facts have not been presented for the Court to revise its previous decision that the SEC “must redact and disclose these records in the manner indicated.” Sept. 22 Mem. Op.,
The newly submitted declarations also do not aid in determining whether protection is warranted under the deliberative process privilege because they speak only generally about the documents and the
The Court now, however, finds that sufficient new details have been provided to exempt Documents 11, 42, 45, and 62 from disclosure by stating “specifically why the wholesale redaction of these records is warranted” and that the deliberative discussions referenced in these documents were “candid or personal in nature.” Sept. 22 Mem. Op.,
b. Attorney Work Product
“The work-product doctrine shields materials ‘prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative. ...’”
Judicial Watch, Inc. v. Dep’t of Justice,
The defendant contends that the declaration of David Pinansky now addresses all of the documents withheld as work product documents other than Documents 49-51, 65, and 72, while the Second Revised Vaughn Index “explains the role of an attorney in the creation of each document withheld as work [ ] product.” Def.’s Mot. Recons, at 4-5; id., Ex. 20 (2d. Suppl. Pinansky Deck). The defendant also presents the declaration of Leslie Wharton, which it asserts shows that the “[t]he text of [these] documents ... contain the discussions among SEC attorneys about the handling of ongoing litigation in [SEC] enforcement actions.” Def.’s Mot. Recons, at 4-5; id., Ex. 21 (Declaration of Leslie Wharton (“Wharton Decl.”)) ¶ 3.
The plaintiff maintains that the Pinansky declaration shows that the documents discuss a disciplinary matter that could result in administrative or “possible future litigation” and that this does not qualify the documents as having been prepared for the “prospect of litigation.” Pl.’s Opp’n Mot. Recons, at 7 (emphasis omitted). The plaintiff takes issue with Pinansky’s statement that he “ ‘specifically considered’ unidentified issues that were ‘relevant to possible future litigation,’ ”
id.
(quoting Def.’s Mot. Recons., Ex. 20 (2d Suppl. Pinansky Decl.)), arguing instead that “the record as a whole suggests that the contested documents were simply compiled in the ordinary course of business of disciplining an employee.” Pl.’s Opp’n Mot. Recons, at 7 (citing
In re Sealed Case,
The Court now agrees with the defendant that Documents 11, 13, 25-29, 31-37, 39, 41-44, 53-55, 57, and 59-63 may be withheld pursuant to the attorney work-product prong of Exemption 5. The initial declaration of David Pinansky stated only “that litigation was possible and that [the SEC] needed to prepare for that situation.” Def.’s Mem., Ex. 4 (Pinansky Decl.) ¶ 10. The second supplemental declaration of David Pinansky, addressing all documents withheld under the work-product privilege other than Documents 49-51, 65, and 7, states that the matter in question “could result in discipline ... [and] OGC attorneys are regularly asked to provide legal advice to HR staff on such matters because they are the ones that are most likely to result in litigation.” Def.’s Mot. Recons., Ex.,20 (2d. Suppl. Pinansky Decl.) ¶ 4. This matter was one he “believed could result in either administrative or court litigation because the staff was considering discipline that would have a significant impact on the employee, and the employee did not agree with management’s view of the events at issue.”
Id.,
Ex. 20 (2d. Suppl. Pinansky Decl.) ¶ 4. Moreover, the declaration makes clear that “[i]n fact, the matter did- evolve into litigation.”
Id.,
Ex. 20 (2d. Suppl. Pinansky Decl.) ¶ 4. Thus, while the Court previously recognized that the defendant is not
Unlike the Second Supplemental Pinansky Declaration, however, the Wharton declaration adds nothing to the work-product privilege analysis, as it only states that “[i]t is clear from the text of [Documents 49-51, 65, and 72] that they contain discussions among SEC attorneys about the handling of ongoing litigation in Commission enforcement actions.” Def.’s Mot. for Recons., Ex. 21 (Wharton Deck) ¶3. Likewise, the descriptions of these documezrts in the Second Revised Vaughn Index remain conclusory. See, e.g., id., Ex. 15 (Second Revised Vaughn Index) at 31 (“This is protected work product from an enforcement action.... ”). Thus, the Wharton Declaration does not provide any more detail supporting the applicability of the work-product privilege to Documents 49-51, 65, and 72 than originally provided when the Court rendered its prior decision on September 22, 2010.
c. Attorney-Client Privilege
“To invoke the [attorney-client] privilege, an agency must demonstrate that the documents it seeks to withhold (1) involve ‘confidential communications between an attorney and his client’ and (2) relate to ‘a legal matter for which the client has sought professional advice.’ ”
Judicial Watch, Inc. v. U.S. Postal Serv.,
The SEC continues to withhold Documents 11, 13, 25, 26, 35, 37, 39, 41-14, 53, 55, 57, 59, and 63 pursuant to the attorney client privilege. Def.’s Mot. Recons, at 5. It now relies on the Second Supplemental Declarations of David Pinansky and Nancy Ellen Tyler as proof that the communications contained in these documents were confidential, and that the SEC was “reasonably careful to keep this information confidential and protected [from] disclo
The plaintiff maintains that the new declarations are “no different” in that they continue to provide “nothing more than conclusory assertions and blanket affirmations.” Pl.’s Opp’n Mot. Recons, at 8. Specifically, the plaintiff takes issue with the fact that “[n]o detail is given on particular documents, nor is an attempt made to show that all communications ‘reflected in or related to’ the documents were confidential.” Id.
The declarations submitted by the defendant answer whether the communications were “circulated no further than among those members of the organization who [were] authorized to speak or act for the organization in relation to the subject matter of the communication.” Sept. 22 Mem. Op.,
2. Exemption 6 12
The SEC continues to rely on Exemption 6 to withhold, in whole or in part,
The Court previously concluded that “the public has some interest in knowing whether the defendant will take action if one if its employees ... utilize[s] his position to purportedly further private interests or harass private citizens.” Sept. 22 Mem. Op.,
In its Motion for Reconsideration, the defendant argues that there is not a sufficient public interest in disclosure because “the employee about whom [the plaintiff seeks] information had no connection to the investigation of or litigation against [the plaintiff].” Def.’s Mot. Recons, at 8. The defendant also contends that “most of the documents withheld under Exemption 6 do not pertain to a decision whether to take disciplinary action as a result of the Cuban e[-]mails” and “[o]nly [Documents 1-6 and 47 pertain to the decision regarding discipline for the Cuban e[-]mails.” Id. Therefore, the defendant concludes that the only documents with identifiable public interests are Documents 1-6 and 47. Id. And, regarding Documents 1-6 and 47, the defendant argues that the public has no interest in the name of the disciplined individual and that redaction would not suffice to protect the individual’s identity from an unwarranted invasion of his or her privacy interests. Id. at 8-9.
The plaintiff in turn renews his previous argument that the details of the “disciplining of a public servant who sent vitriolic e[-]mails to a private citizen from a government e[-]mail address during work hours, regardless of whether he also participated in the investigation of the citizen” sheds light on government action and there is a public interest in such information. PL’s Opp’n Mot. Recons, at 4. The plaintiff reiterates that the SEC needs only to redact the personal information rather than withhold the sixty-seven documents in their entirety, especially when it has not provided “the Court [any] basis to assess the SEC’s position” that disclosure of the documents would constitute a clearly unwarranted invasion of privacy. Id. at 5.
The only new or additional information offered to support the defendant’s motion for reconsideration is found in the declaration of Robert B. Kaplan, wherein the declarant states that the employee in ques
withheld in [their] entirety to protect personal privacy interests of an employee subject to potential discipline and of SEC staff involved in deciding on the discipline. Redacting identifying information alone is not sufficient because information already available to [the] plaintiff and/or [the] public would allow [the] plaintiff and others to identify the employee subject to discipline.
See
Def.’s Mem., Ex. 9 (Revised
Vaughn
Index) at 1 (description of Document 1); Def.’s Mot. Recons., Ex. 15 (Second Revised
Vaughn
Index) at 1 (description of Document 1). This language is applied throughout the Second Revised
Vaughn
Index to justify the withholding of all documents withheld under Exemption 6. And again, such language is nothing more than a “conclusory statement” devoid of any specific reasons why the names in the documents and other identifying information cannot be redacted to adequately protect the privacy interest about which the defendant is concerned. Moreover, this new information fails to address the Court’s finding that the “public interest favors disclosure of some parts of the records” or an answer as to why partial redaction is inadequate. Sept. 22 Mem. Op.,
3. Exemption 7(C) 13
Exemption 7(C) is designed to protect the personal privacy interests of individuals named or identified in “records or information compiled for law enforcement purposes,” to the extent that the disclosure of those records “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). To determine whether an agency’s withholding is proper under this exemption, an individual’s right to privacy must be weighed against the public’s right to disclosure.
Sussman v. U.S. Marshals Serv.,
The plaintiff contends that his arguments concerning Exemption 6 also support his argument regarding Exemption 7(C). Pi’s Opp’n Mot. Recons, at 1 n.l (“[W]ith respect to [Exemption] 7(C), [the plaintiff] will rely on the arguments in this Opposition regarding Exemption 6 ... and on [his] previous briefs.”). Thus, the plaintiff posits that the defendant has not established that disclosure of the contested documents would constitute an unwarranted invasion of personal privacy.
The defendant has previously produced to the plaintiff Documents 78-80 in redacted form, with the only redacted information being “names and personally identifiable information.” October 20, 2010 Status Report ¶ 17. The defendant now asserts, somewhat cryptically, that “there is no issue as to the propriety of withholding [the] personal identifying information” in Documents 78-80, Def.’s Mot. Recons, at 10, and the plaintiffs opposition does not address this representation or these documents. Considering the defendant’s contention and the plaintiffs silence regarding Documents 78-80, the Court assumes that the plaintiff is not challenging the redaction of Documents 78-80.
As to Documents 9 and 16-18, however, the Court again finds the defendant’s Second Revised
Vaughn
Index inadequate. For example, the description of Document 9 in the Second Revised
Vaughn
Index only adds the dates of the e-mail chain and that this document “contains the names of the SEC employees at issue and the SEC supervisors and HR employees deciding [a] disciplinary matter].” Def.’s Mot. Recons., Ex. 15 (Second Revised
Vaughn
Index) at 4. With regard to the basis for invoking Exemption 7(C), the Second Revised
Vaughn
Index states that “[t]his e[-]mail was withheld in its entirety [because] ... [redacting identifying information alone is not sufficient because information already available to [the] plaintiff and/or the public would allow [the] plaintiff and others to identify the employee subject to discipline.”
Id.
The earlier Revised
Vaughn
Index stated that the document was “[withheld in its entirety to protect personal privacy interests in personnel matters.” Def.’s Mem., Ex. 9 (Revised
Vaughn
Index) at 2. The information regarding Documents 16-18 in the most recent
Vaughn
index is nearly identical in describing the basis for the withholding under Exemption 7(C). The Court previously stated that the “identities of the subject of the investigation and those involved in the investigative process [are] not nearly as significant as the actions (or lack thereof) taken by the defendant.” Sept. 22 Mem. Op.,
The Court again must find that it cannot with confidence conclude that redaction is insufficient when the only reason supplied by the defendant is that information already available to the plaintiff or the general public would allow identification of the employee in question. The Court previously emphasized the public interest that exists in the disclosure of these documents
4. Exemption 3(A)
In its motion for reconsideration the defendant now, for the first time, raises Exemption 3(A) of the FOIA, in conjunction with 31 U.S.C. § 5319, as a basis for withholding Documents 50 and 51, which contain suspicious activity reports. Def.’s Mot. Recons, at 6.
The District of Columbia Circuit has held that a party’s reliance on a FOIA exemption is waived and cannot be asserted on appeal when the party fails to raise the exemption in the district court, thus denying the district court the opportunity to address the applicability of the exemption in the first instance.
Maydak v. Dep’t of Justice,
Exemption 3(A) protects from disclosure documents “specifically exempted from disclosure by statute (other than section 552b of this title), if that statute ... requires that the matters be withheld from the public in such a manner as to leave no discretion ’on the issue.” 5 U.S.C.
The Bank Secrecy Act, the law on which the defendant now bases its Exemption 3 withholding, permits the Secretary of the Treasury to require financial institutions to report suspicious transactions: “[t]he Secretary may require any financial institution, and any director, officer, employee, or agent of any financial institution, to report any suspicious transaction relevant to a possible violation of law or regulation.” 14 31 U.S.C. § 5318(g)(1) (2006). Another provision of the Bank Secrecy Act, reads:
The Secretary of the Treasury shall make information in a report filed under this subchapter available to an agency, including any State financial institutions supervisory agency, United States intelligence agency or self-regulatory organization registered with the Securities and Exchange Commission or the Commodity Futures Trading Commission, upon request of the head of the agency or organization. The report shall be available for a purpose that is consistent with this subchapter. The Secretary may only require reports on the use of such information by any State financial institutions supervisory agency for other than supervisory purposes or by United States intelligence agencies. However, a report and records of reports are exempt from disclosure under section 552 of title 5.
31 U.S.C. § 5319. This provision of the Bank Secrecy Act explicitly exempts suspicious activity reports from disclosure under the FOIA.
See Sciba v. Bd. of Governors of the Fed. Reserve Sys.,
No. 04-cv-1011,
As noted above, the defendant now raises Exemption 3(A) of the FOIA, in conjunction with 31 U.S.C. § 5319, as a basis for withholding Documents 50 and 51, which contain suspicious activity reports. The proceedings in this case are not yet complete as evidenced, for example, by the Court’s consideration of the defendant’s Rule 54 motion. The Court also notes that the plaintiff, in his opposition, had an opportunity to respond to the defendant’s recent invocation of Exemption 3. In other words, the exemption was not only raised before this Court prior to the commencement of any appellate proceedings, but was also argued and addressed by both parties in this Court. PL’s Opp’n Mot. Recons, at 9-10. Moreover, the Court cannot overlook the importance of protecting information in the suspicious activity reports, especially when it is explicit in the statute that the information should not be disclosed.
See Seiba,
IV. CONCLUSION
For the foregoing reasons, the Court finds the defendant’s Motion for Reconsideration must be granted in part and denied in part. 15 Specifically, the Court finds that the defendant’s search for records responsive to Category 7 was adequate; however, because the defendant has provided no new information that materially supplements what was provided earlier regarding Categories 11, 12, and 13 of Request Letter I, evidence of the sufficiency of these searches remains inadequate. Further searches for these three categories of documents must therefore be conducted by the defendant. The Court also concludes that the defendant has now satisfied its burden of establishing that Documents 11, 13, 25-29, 31-37, 39, 41-45, 50, 51, 53-55, 57, and 59-63 are exempt from disclosure in whole, and, furthermore, that the defendant need not disclose any of the material that has been redacted from Documents 78-80. Finally, the Court finds that the defendant has still not provided adequate justification for not disclosing Documents 1-3, 5-9, 12, 14-19, 22, 30, 38, 40, 46-49, 52, 56, 64, 65, and 67-77. Accordingly, in responding to this opinion and clarifying its reliance on any of the FOIA’s exemptions, the defendant must provide additional explanations with sufficient details so as to enable the Court to assess whether the exemptions are being properly asserted. Otherwise, these documents must be provided to the plaintiff.
Notes
. In deciding this motion the Court also considered the following filings: (1) the Defendant’s Reply in Support of its Motion for Reconsideration ("Def.’s Reply”), and (2) for, comparative purposes, the Defendant's Reply to Plaintiff's Response to Defendant’s Motion for Partial Summary Judgment and Response
. Request Letter I is a FOIA and Privacy Act request submitted in the form of a letter dated December 19, 2008, from David M. Ross to the defendant. See Complaint ¶ 6.
. The documents originally withheld under Exemption 2 have since been released to the plaintiff. Def.’s Mot. Recons, at 2. Therefore, the plaintiff's claims regarding Exemption 2 in the September 22, 2010 Memorandum Opinion are now moot.
. Category 7 requests "[rjecords of any trading history by SEC personnel in Copernic securities.” Mot. for Recons., Ex. 7 (Declaration of Noelle Frangipane) at Ex. B (December 19, 2008 Request Letter from Dewey & LeBoeuf to the SEC) ("Request Letter").
. Declarations from these two individuals had not previously been supplied to the Court.
. In reaching this conclusion, the Court disagrees with the plaintiff that
Public Citizen, Inc. v. Department of Education,
. Despite its inclusion on this list, according to the Second Revised Vaughn Index, the defendant has produced Document 66 in full. See Def.’s Mot. Recons., Ex. 15 (Second Revised Vaughn Index) at 31.
. Documents 4, 10, 20, 21, 23, 24, and 58 were withheld only in part and pursuant only to Exemption 6.
See
Def.’s Mot. Recons., Ex. 15 (Second Revised Vaughn Index) at 2, 4, 8-10, and 27. After reviewing the Second Revised Vaughn, Index, the Court now concludes that the defendant need not disclose the material redacted from these documents, as the Second Revised Vaughn Index reveals that the redactions consist of names and contact information,
see, e.g., id.,
Ex. 15 (Second Revised Vaughn Index) at 4 (explaining that "[t]he names and identifying information of [SEC employees] and a personal cell phone number have been redacted”). Such redactions are consistent with the Court’s earlier opinion in this case, which held "that the names of the individuals involved in the investigations [and] their contact information may be withheld for privacy reasons.” Sept. 22 Mem. Op.,
. In light of the Court’s prior opinion in this case and the extent of the Court’s discussion of Exemption 5 in that opinion,
see
Sept. 22 Mem. Op.,
. With the exception of Documents 29 and 61, which the SEC has withheld only in part, all of these documents are being withheld in full. The Court notes, however, that there is a discrepancy between the defendant's motion for reconsideration, which seems to indicate that Document 3 is being withheld in part, and the Second Revised Vaughn Index, which indicates that Document 3 has been withheld in full. See Def.’s Mot. Recons, at 3; id., Ex. 15 (Second Revised Vaughn Index) at 2.
. The defendant’s motion for reconsideration, the plaintiff’s opposition to the motion, and the defendant’s reply in support of the motion all focus only on the confidentiality of the communications at issue,
see
Def.'s Mot. at Recons, at 5-6; Pl.'s Opp'n Mot. Recons, at 8; Def.’s Reply at 3, presumably because the question of whether the communications had indeed been kept confidential anchored the Court’s prior analysis of whether the defendant could rightfully assert the attorney-client privilege to withhold these documents. As noted in both the September 22, 2010 Memorandum Opinion and earlier in this Memorandum Opinion, however, there are two elements that must be satisfied for the attorney-client privilege to apply.
See supra
at 56. While a lengthier analysis of the second prong of this privilege would perhaps be necessary for the Court to conclusively determine that the defendant has properly invoked the attorney-client privilege component of Exemption 5 to withhold the documents at issue, this analysis is now unnecessary in light of the Court's conclusion that the attorney work-product privilege protects from disclosure these same documents.
See supra
at 55-56;
Coleman v. Lappin,
. In light of the prior opinion issued by the Court in this case and the extent to which that decision discussed Exemption 6, the Court will not repeat again here an extensive discussion of the legal standards applicable to Exemption 6.
See
Sept. 22 Mem. Op.,
. Again, in light of the Court’s prior decision in this case and the extent to which that decision discussed Exemption 7, the Court will not here repeat the exhaustive discussion of the legal standards applicable to Exemption 7.
See
Sept. 22 Mem. Op.,
. The stated purpose for enacting the Bank Secrecy Act was to "to require certain reports or records where they have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings, or in the conduct of intelligence or counterintelligence activities, including analysis, to protect against international terrorism,” 31 U.S.C. 5311, and to achieve this objective it also requires financial institutions to file other types of reports, in addition to suspicious activity reports. See 31 U.S.C. § 5314 (Records and Reports on Foreign Financial Agency Transactions); 31 U.S.C. § 5315 (Reports on Foreign Currency Transactions); 31 U.S.C. § 5316 (Reports on Exporting and Importing Monetary Instruments).
. The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.