MEMORANDUM OPINION
Before the Court are [10] and [11] cross-motions for summary judgment in this Freedom of Information Act (FOIA) case. Plaintiff Mitchell Stein is the subject of both a criminal and a civil judgment entered against .him related to various fraud and securities violations. He seeks records developed in the civil enforcement action brought against him by defendant Securities and Exchange Commission (SEC). For the reasons that follow, Stein’s motion will be denied, and the SEC’s motion will be granted in part and denied in part.
I. BACKGROUND
In 2011, the SEC. filed a civil enforcement action against Heart Tronics, Inc., a medical device manufacturing company, naming Stein and .several other individuals and corporate officers associated with the company as co-defendants. See Donnelly Decl. [ECF No. 10-2] ¶ 14; see also Complaint, SEC v. Heart Tronics, Inc., et al., No. 8:11-1962 JVS (ANx) (C.D. Cal.) [ECF No. 1]. Stein was the purported outside counsel to the company, and his wife, Tracey Hampton-Stein, was the majority shareholder. The SEC alleged that Stein and his co-defendants engaged in a series of fraudulent schemes, masterminded by Stein, to drive up the price of Heart Tronics stock, including repeatedly creating false sales orders and including these in Heart Tronics’ SEC filings,, and issuing
Stein submitted a FOIA request to the SEC in March 2015, seeking two categories of documents: all documents and information described in the privilege log prepared by the SEC in the Heart Tronics case, and all documents and information relating to the SEC’s investigation into individuals named Yossi Keret, Tony Nony/Nonoy, Avi Cohen, Ari Cohen, and Marina Orita. See Compl., [ECF No. 1] Ex. B. Stein was accused of inventing several of the names in the latter category for use in false purchase orders. The SEC responded in June 2015, withholding the privilege log records under FOIA Exemption 7(A), which permits the withholding of records that may interfere with law enforcement activities. See Compl., Ex. D at 1; see also 5 U.S.C. § 552(b)(7)(A). The SEC also asserted that other exemptions may apply, and reserved the right to raise those exemptions when Exemption 7(A) was no longer applicable. Compl., Ex D. at 1. With respect to the second category of documents, the SEC did not discuss these in its response, except to conclude in a footnote that “to the extent the records [Stein was] seeking ... exist” they had either already been made available to Stein in the Heart Tronics litigation, or were included in the privilege log category of documents. Id. at n.l.
Stein filed an administrative appeal of the SEC’s decision, insisting that the agency turn over “all of the requested documents,” and arguing that Exemption 7(A) did not apply because the civil and criminal actions against him had concluded. Compl., Ex. E at 1-2. The SEC’s Office of General Counsel (OGC) responded, concluding that the FOIA officer had correctly withheld the requested records under Exemption 7(A), because claims brought against Stein’s co-defendants in the Heart Tronics case were still proceeding, and because Stein had appealed the civil judgment against him to the Ninth Circuit. See Gov’t Mot. for Summ. J., Ex. 2 [ECF No. 10-3] at 1-2. Therefore, the OGC concluded that release of the records could still interfere with ongoing enforcement proceedings. Id at 2.
Stein filed this suit in September 2015, bringing claims under both FOIA and the Privacy Act, 5 U.S.C. § 552a, seeking the production of all records responsive to his request. Both parties have moved for summary judgment.
II. LEGAL STANDARDS
Summary judgment is appropriate where “the movant shows that there is no
“FOIA cases typically and appropriately are decided on motions for summary judgment.” Georgacarakos v. FBI,
District courts review de novo an agency’s decision to withhold requested documents under. a statutory exemption, and the agency “bears the burden of proving the applicability of claimed exemptions.” Am. Civ. Liberties Union (ACLU) v. U.S. Dep’t of Defense,
III. DISCUSSION
■Stein raises three main issues in his motion for summary judgment and in his opposition to the government’s motion for summary judgment: he challenges the adequacy of the government’s search for responsive records, the agency’s withholding determinations, and the agency’s seg-regability determinations. See Stein Mot. for Summ. J. [ECF No. 11] at 10-13, 16-18; Stein Opp’n to Gov’t Mot. for Summ. J. (hereinafter “Stein Opp’n”) [ECF No. 14] at 5-10. The government argues that Stein failed to exhaust his administrative remedies with respect to the second category of requested documents and with respect to his Privacy Act claims. Furthermore, in addition to claiming that the requested documents are exempt from disclosure under FOIA Exemption 7(A), the government also raises arguments under Exemptions 3, 5, 6, and 7(C). See Gov’t Mot for
A. Exhaustion .
Before- a plaintiff may bring an action under FOIA, he must first exhaust his administrative remedies. See Hidalgo v. FBI,
Stein has clearly failed to exhaust any Privacy Act claims — there is no mention of the Privacy Act in his initial request for documents or in his administrative appeal letter. See, e.g., Compl., Ex. B at 1 (“This is a request under the Freedom of Information Act.(5 U.S.C. Section 552).”). Indeed, the first and only time any mention of the Privacy Act is made is in his complaint — he makes no argument with respect to the Privacy Act in his motion for summary judgment or in any of the other briefs filed here. See, e.g., Compl. at 5, 8-9.
1
Accordingly, Stein’s Privacy Act claims are dismissed for failure to. exhaust. See, e.g., Barouch,
The SEC also argues that Stein has failed to exhaust his FOIA claim with respect to the second category of requested documents, those relating to various named individuals. See Compl., Ex. B at 1 (Stein’s FOIA request). The SEC argues that, because Stein’s appeal letter did not contest the SEC’s determination that the records in the second category had either already ■ been produced to him or were included in the privilege log, Stein failed to administratively appeal the SEC’s determination with respect to this group of documents. Gov’t Mot. for Summ. J. at 6.
It is true that Stein did not specifically contest this point in his appeal letter. He disputed the SEC’s withholding decision under Exemption 7(A) — which, according to the SEC, was also the exemption under which the SEC was withholding some documents related to the second document category. See Compl., Ex. D at 1 n.l. But his appeal letter also specifically demanded — twice—“all of the requested documents,” not just documents related to the. first category. See Compl., Ex. E at 1-2. The government is obligated to construe FOIA requests — and appeals — liberally, where a request is “reasonably susceptible to the broader reading.” See LaCedra v. Executive Office for U.S. Attorneys,
B. Adequacy op the Search
Stein also argues that the government’s search for responsive records was inadequate. Where a FOIA plaintiff challenges the adequacy of an agency’s search for responsive documents, the agency “must show beyond material doubt ... that it has conducted a search reasonably calculated to uncover all relevant documents.” Morley v. CIA,
1. Search for documents responsive to Stein’s first category of requests
With respect to the privilege 2 log documents, i.e., documents responsive to Stein’s first category of requests, the agency listed on the Vaughn index all of the documents identified individually on the privilege log, identified the handwritten notes and legal research that was listed categorically on the privilege log, and searched for privileged emails that were also identified categorically on the privilege log. Donnelly Decl. ¶¶ 5, 7-8, 12-13. Stein does not challenge the agency’s, search for either the individual documents identified on the privilege log or the handwritten notes and legal research identified on the privilege log, but he does contest the agency’s search for relevant privileged emails. •
Stein objects to the search terms the agency used for identifying privileged
Stein argues that these search terms were designed to “confuse the Court and manipulate the facts” by adding names that Stein did not ask for in his FOIA request, i.e., those of his co-defendants and the SEC staff involved in the investigation. Stein Opp’n at 7. According to Stein, this is evidence of the SEC’s bad faith, because it is evidence that the SEC was trying to obscure or skew the results of any search. Id. at 5-7. But Stein’s objections on this point make little sense. The SEC’s search terms with respect to the privileged emails were reasonably calculated to identify privileged emails noted on the Heart Tronics privilege log by identifying relevant dates (the period of the investigation), custodians (SEC attorneys and staff assigned to the investigation), and subjects of or persons of interest in the investigation (Stein, his co-defendants and other relevant names, including Yossi Keret, Tony Nony, etc.). These search terms produced 2,715 documents, which the SEC then reviewed, concluding that 1,800 were privileged emails categorically identified on the privilege log. Donnelly Decl. ¶¶8-10. There is no evidence of bad faith. The Court is therefore satisfied that the agency has fulfilled its search obligations with respect to the first category of requested documents.
2. Search for documents responsive to the second category of requests
With respect to the second category of documents, as the Court has already noted, the agency concluded in its FOIA response letter that documents responsive to this category had either already been made available to Stein in the Heart Tron-ics litigation or were included on the privilege log. CompL, Ex. D. at 1 n.l. It is clear that the SEC did not provide Stein the documents it already produced to him in the Heart Tronics case in response to his FOIA request, nor does the agency state that it ever conducted a search through its records for documents specifically responsive to Stein’s second category of requests — instead, it concluded that the only documents that had not been made available to Stein-in the previous litigation were those identified on the privilege log.
Stein never directly addresses the agency’s argument that it produced much of his requested information during the Heart Tronics litigation. He does, however, object generally to the agency’s failure to search for documents responsive to this second category of requests. Stein also argues repeatedly that the SEC has a 200-
a. Heart Tronics discovery and the SEC’s open file policy
Although the SEC maintains that Stein waived any objection to the agency’s findings with respect to category two of the request, the SEC nevertheless provided the Court with information about the basis for its conclusion that documents responsive to category two were already provided to Stein in the Heart Tronics litigation or were included on the privilege log. See Gov’t’s Reply [ECF No. 16] at 4-6. The SEC relies on a declaration submitted by an attorney in the Heart Tronics litigation in response to Stein’s motion to compel in that case, which explains the SEC’s “open file” discovery policy during that investigation. Id. at 4; see also SEC Am. & Supp. Resp. to Request for Produc. of Docs., Ex. A to Gov’t’s Reply [ECF No. 16-1] ¶ 3; Nonaka Decl., Ex. B to Gov’t’s Reply [ECF No. 16-2]. 3
According to the Nonaka declaration, the SEC produced two million pages of documents to Stein and his co-defendants during the litigation, which constituted “all subpoenas and voluntary document requests issued during the investigation, all documents produced in response to. such subpoenas and requests, all investigation testimony given by any witness, and all exhibits to all testimony.” Nonaka Deck ¶¶ 5-6. The SEC also made available for review two one-terabyte hard drives that were delivered to the SEC on behalf of Heart Tronics, and which contained data from Heart Tromcs computers, as well as boxes of documents likewise delivered by Heart Tronics (the “RenewData materials”). Id ¶¶ 7-8. The SEC received these materials from RenewData, a third party e-discovery vendor that Heart Tronics’ one-time counsel, Greenberg Traurig, LLP, had contracted with on Heart Tron-ics’ behalf to help manage the discovery process during the SEC’s investigation. The SEC received the two hard drives and the' boxes of documents at the direction of Heart Tronics’ then-counsel Jared Scharf, because Heart Tronics could no longer pay RenewData to store the drives and documents. See SEC Am. & Supp. Resp. ¶ 4; Nonaka Deck ¶¶ 7-8.
The SEC never reviewed the contents of these documents or hard drives, but did make them available to Stein and his co-defendants for review at SEC headquarters during the litigation. SEC Am. & Supp. Resp. ¶ 4; Nonaka Deck ¶¶ 7-8. All told, these materials “comprise[d] the universe of non-privileged documents in the SEC’s possession, custody or control that were produced by witnesses and other third parties during the investigation.” No-naka Deck ¶ 9. The SEC withheld only those documents described individually or categorically on the privilege log, id. ¶¶ 11-19; hence, the SEC concluded that the only universe of documents at issue here are those listed on the privilege log. See Gov’t’s Reply at 4-5; Donnelly Deck ¶ 6 (“All of the documents Stein requested in the second bullet-point category ... were either made available to Stein in SEC v.
The SEC seems to think that its open file discovery policy during the Heart Tronics litigation1 has satisfied its FOIA obligations and that it need not search for documents responsive to Stein’s second category of requests, because there is nothing it-could-search for or produce that Stein has not already seen, excepting the documents on the privilege log, Were the Court certain that Stein already received all documents responsive to his FOIA request in the prior litigation, the Court might agree. If an agency can demonstrate that it has already searched for and actually produced all documents responsive to a plaintiffs FOIA request, FOIA surely does not require it to duplicate those efforts. 4 But it is not clear here that this situation is so neat, and there is one issue that is cause for concern.
The Court’s concern relates to the RenewData materials — the two one-terabyte hard drives and the boxes of documents. While the SEC maintained an open file policy during the Heart Tronics litigation, it did not produce all of its records to Stein, such that he now already has all of the SEC’s records in his possession. The RenewData materials were only “made available” to him for review in Washington, D.C. during the discovery period. Nonaka Deck ¶7. As discovery in Heart Tronics has now ended, and that case is on appeal, Stein presumably no longer has access to these materials, arid the Court is not convinced that .the fact that Stein once had a chance to examine these materials is sufficient to satisfy FOIA. Although FOIA obligations may be satisfied when the'agency “has provided an alternative form of access” to requested records, this is typically only the case when the records are publicly accessible, for example, on the internet, in other published records, or in a public reading room. See, e.g., Shurtleff v. EPA,
Moreover, the SEC states that it never reviewed these materials when they were delivered, which leaves open the possibility that there are"documents responsive to Stein’s second request contained in these materials, of which the SEC is unaware. Although an agency is not required to search endlessly for every document responsive to a FOIA request, its search must be “reasonably calculated to uncover all relevant documents.” Valencia-Lucena v. U.S. Coast Guard,
b. 200-million file database
As noted above, Stein consistently argues that there is a 200-million file database in the SEC’s possession that the agency failed to search for his category two requests, and which Stein is convinced contains undisclosed material that will exonerate him. Stein does not explain what this database is, how he knows of its existence, or why he thinks it contains undisclosed material, and the SEC has stated— both here and in the Heart Tronics litigation — that it does not know what database Stein is referring to and that there is no database containing undisclosed- 'documents. See Gov’t Response at 6; SEC Am. & Supp. Resp. ¶4. Based on documents both parties have submitted, however, it appears likely that Stein is referring to the set of documents or materials maintained by RenewData, which has on occasion been referred to as a. “database,” and which appears to be the only database referred to in either the Heart Tronics litigation or the criminal case against Stein. See SEC Am. & Supp. Response ¶ 4; Nonaka Decl. ¶ 10 (referring to a RenewData “database”); Trans. of Faretta Hrg. in United States v. Stein, Ex. D to Stein Decl. [ECF No. 17-1] at 33:14-18 (Stein stating “[t]here was a database created which the Government has, in 2008, of all the documents presumably in the world regarding Signal Life [sic]. It was provided to the SEC, it was made by Greenberg Traurig in conjunction with Mr. Scharf, in conjunction with the SEC.”); see also United States v. Stein,
To the extent that the 200-million-file' database that Stein refers to is the RenewData documents and materials produced to the SEC, the Court has already addressed the SEC’s obligation to search these materials or explain why those materials are unlikely to contain responsive documents. The SEC has also stated that it never had access to the actual database (if there was one) hosted by RenewData, Nonaka Decl. ¶ 10; thus, if Stein is referring to a greater “database” of documents hosted by RenewData but never provided to the SEC, the SEC has no obligation to produce documents outside its custody or control at the time of the FOIA request. See McGehee v. CIA,
Accordingly, for the reasons explained above, the Court finds that the SEC has not satisfied its search obligations with respect, to Stein’s second category of requests,
3. Exhibit X
Like the mysterious database, Stein also spends a great deal of time arguing about
But Stein has not explained how the apparent existence of a person named Yos-si Keret at a company named Pluristem Life Systems shows either that a person named Yossi Keret really did sign a purchase order on behalf of an unrelated company called IT Healthcare, or more relevantly, that the SEC is hiding documents related to a person named Yossi Keret at IT Healthcare. In short, Stein has presented no evidence to suggest that these two people are the same or could reasonably be the same. Exhibit X therefore says nothing about the agency’s good faith or bad faith in this FOIA action, and does not undermine the agency’s affidavits regarding what was already produced to Stein during the Heart Tronics litigation. To the extent that there may be additional documents pertaining to Keret or others in the RenewData materials, the agency will be able to so indicate once it has conducted its search of these materials.
4. De Facto Glomar Response
Stein next argues that, because the SEC’s Vaughn index does not identify which documents are responsive only to his first requested category of documents and which are responsive to both the first and second categories, the agency has submitted a “de facto Glomar response” to his requests. Stein Opp’n at 8-9. Such a response is appropriate where the fact of the existence or nonexistence of agency records itself falls within a FOIA exemption; the agency may then submit a FOIA response that neither confirms nor denies the existence of such records. See, e.g., Wolf v. CIA,
Stein’s arguments on this point are misguided. The agency has not submitted a Glomar response, and it certainly has not indicated that it intends to rely on that doctrine for any of the withheld documents. The agency is not obligated to identify in the Vaughn index which documents are specifically responsive to which categories of Stem’s requests. The purpose of the Vaughn index, together with any declara
5. Conclusion
Accordingly, the Court finds that the agency’s search for the privilege log documents was adequate, but that the agency failed to adequately search for documents responsive to Stein’s second category of requests. The SEC shall conduct an adequate search of the RenewData materials for documents relating to its investigation into any individuals named Yossi Keret, Tony Nony/Nonoy, Avi Cohen, Ari Cohen, and Marina Orita during the Heart Tron-ics litigation.
C. Withholding Decisions
The SEC withheld the privilege log documents principally under FOIA Exemption 7(A), which exempts from disclosure “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). However, the SEC also withheld in full or redacted in part a handful of records under Exemptions 6 and 7(C), which relate to individual privacy interests, and a few documents under Exemption 3, which relates to documents that are exempt by other statute. Finally, the SEC also claims that many of the documents exempt under 7(A) are also exempt under Exemption 5, which protects documents covered by the attorney client privilege, deliberative process privilege, and the attorney work product doctrine.
1. Exemption 7(A)
Exemption 7(A) applies to law enforcement records compiled for civil, administrative, and criminal matters. Tax Analysts v. IRS,
In order to justify its withholding- decision under Exemption 7(A), the SEC must demonstrate that “disclosure (1) could reasonably be expected to interfere with (2) enforcement proceedings that are
(3)
pending or reasonably anticipated.” Citizens for Responsibility & Ethics in Wash. (CREW) v. U.S. Dep’t of Justice,
“[Although [courts] give deference to an agency’s predictive judgment of the harm that will result from disclosure of information, it is not sufficient for the agency to simply assert that disclosure will interfere with enforcement proceedings; it must rather demonstrate how disclosure will do so.” Id. at 1098 (internal quotation-marks and citation omitted). However, the SEC does not need to justify its withholding decision document by document; rather, it may take a categorical approach. To do so, the agency must define functional categories, review the requested documents one by one and assign each to a category, and explain how the release of each category of documents would interfere with enforcement, proceedings. Bevis v. U.S. Dep’t of State,
The universe of documents at issue here are most of the documents listed individually on the Vaughn index, 7 the privileged emails, and the privileged notes and legal research. The SEC has reviewed and grouped all of these • documents into two broad categories: “attorney work product and deliberations by Commission staff,” and “memoranda by Commission Staff’ to the Commission and to high ranking officers in the Division of Enforcement. Don-nelly. Decl. ¶¶ 19-20, 22.
The first group of documents, consisting of attorney work pi'oduct and staff deliberations, is the largest, and includes the privileged notes and emails, and the majority of the privilege log documents. These documents reveal how the SEC interpreted various facts and law throughout the investigation, including impressions of witnesses and what SEC staff thought was and was not important as the investigation developed. Id. ¶ 20. The privileged emails include emails among the attorneys conducting and supervising the Heart Tronics investigation, including emails' circulating drafts of memoranda and court filings, testimony outlines and exhibit lists, interview summaries and testimony digests, and emails discussing the drafting of documents, investigative plans, facts and legal issues, and settlement negotiations. Id. ¶ 11. The privileged emails also include emails with other SEC staff seeking legal and factual information, analyzing relevant law and providing information about the investigation; emails containing Suspicious Activity reports; emails containing information from the Commission de Surveillance du Secteur Financier, the financial regulatory authority of Luxembourg; and emails to senior officials in the Division of Enforcement providing information about the case and seeking approval for different steps in the investigation. Id. Finally, .the privileged émails include emails between attorneys handling the -investigation and the SEC’s Office of the Secretary sending memoranda seeking Commission approval and action, including approval to bring an enforcement action; emails between SEC staff and DOJ staff sharing information and analysis about the parallel investigations; and emails discussing cases that
The privileged notes and legal research include handwritten notes and other writings by SEC staff and attorneys recording their thoughts and impressions during meetings or phone calls regarding the investigation, when the attorneys were taking ' testimony from or interviewing witnesses, and when the attorneys or staff were reviewing documents gathered during the investigation. Id. ¶¶ 12-13. The legal research includes the SEC attorneys’ research files containing case law and other legal research related to possible claims in the Heart Tronics litigation, gathered in anticipation of the litigation or in connection with the advice, evaluations, opinions and recommendations made by the staff to the Commission. Id.
Lastly, privilege log documents that fall into this group include documents collected by and created by attorneys involved in the litigation to determine relevant facts and legal theories, and reflect the development of the investigation and subsequent litigation. Id. ¶ 20. These include investigative plans, outlines for interviews and testimony, digests of testimony, witness contact lists, exhibit lists, spreadsheets created to summarize and evaluate facts, summaries of factual theories and proposed next steps, data regarding securities trades and other transactions, memo-randa analyzing facts and legal issues, emails among the SEC staff discussing legal and factual issues and sharing key documents, and research materials including case law and memos and complaints from other SEC cases. Id.; see also Vaughn Index.
The second group of documents the SEC withholds under Exemption 7(A) are memoranda, drafts of memoranda, and comments on memoranda from SEC enforcement attorneys to the Commission and to high-ranking officials in the Division of Enforcement regarding whether the Commission should .open a formal investigation, notify Stein and others that Enforcement planned to recommend filing a civil action, file a complaint, or settle actions. Donnelly Deck ¶22. These documents contain “detailed analyses of potential violations of the federal securities laws.” Id.
With respect to both groups of documents,- the SEC claims that disclosure would interfere with the SEC’s enforcement actions against Stein and Stein’s co-defendant, Willie Gault, as both of these cases are on appeal and the judgments against Stein and Gault are not yet'final. Donnelly Decl. ¶¶ 21, 23; Gov’t Supp. Br. [ECF No. 19] at 2-3; see also SEC v. Heart Tronics, Inc. et al., No. 15-55506 (9th Cir.); SEC v. Willie James Gault, No. 16-55780 (9th Cir.). Release of the SEC’s internal deliberations and trial preparation materials could undermine the agency’s ability to relitigate the cases against Stein and Gault if they -are reversed on appeal. Testimony outlines, for example, may not reflect exactly what a witness was asked, and could therefore reveal staff theories about what occurred, and digests of testimony and spreadsheets of facts could reveal what facts or statements an attorney thought was important. Donnelly Deck ¶35. Contact lists could reveal who the staff thought it needed to talk to at what points in the investigation, and draft documents reveal decisions and changes that were made during the drafting process. Id. The memoranda reveal deliberative discussions about the options for the investigation and enforcement action, which the agency may or may not have ultimately pursued. Id ¶34. The SEC argues that disclosure wquld reveal SEC attorneys’ and staffs thought processes and.deliberations,. including evaluations of the case and
Stein’s arguments in response to the SEC’s claims are again somewhat confusing. First, he appears to focus principally on DOJ’s criminal case against him, arguing that the SEC has always maintained that the civil and criminal investigations were separate, and that the SEC has therefore failed to show how release of its materials would interfere with the ongoing criminal case. Stein Mot. for Summ. J, at 12-14; Stein Opp’n at 20-21 (“The cases cited by the SEC ... are FOIA eases brought against the very agencies that actually prosecuted the FOIA requester in the related proceeding .... ”). Stein appears to misunderstand the SEC’s arguments. The SEC is not arguing that release of the privileged documents would interfere with DOJ’s criminal case against him; instead, the agency is crystal clear that release of the documents could interfere with the ongoing civil enforcement actions against Stein and at least one of his co-defendants in the Heart Tronics litigation. Donnelly Deck ¶¶ 21, 23; Gov’t Mot. for Summ. J. at 14-16. Stein’s argument about the criminal case is therefore inap-posite.
Second, Stein argues that the government’s investigation against him concluded “years ago” and that the government already “let the cat out of the bag” about- the investigation and its trial strategy when it presented its case in the district court. Stein Mot. for Summ. J. at 11-12; Stein Opp’n at 20. Courts have repeatedly held, however, that the potential for interference remains even when a case is on appeal; an agency may continue to withhold law enforcement records “until all reasonably foreseeable proceedings stemming from [an] investigation are closed.” Kay v. FCC,
Here, while the release of the government’s work product, deliberative material, and staff memoranda would not prematurely reveal that Stein or his co-defendants were under investigation — that particular cat is indeed already out of the bag — the documents that Stein seeks may still cause harm. Attorney notes, memo-randa, and other written products, as well as witness statements and other investigative materials, have been withheld under Exemption 7(A) where they would reveal agency analyses, thoughts, impressions, or
Because the work product, internal communications, and deliberative documents that Stein seeks essentially provide a road map for the SEC’s case in the Heart Tron-íos litigation, they are likely to give Stein insight into the way the investigation and the SEC’s legal strategies developed that he and Gault would not otherwise have, which could make re-litigating the Stein and Gault cases — or possibly even pursuing them on appeal — difficult. See, e.g., Barney,
2. Exemption 5
The SEC also claims that most of the documents on the , Vaughn index, and all of the privileged notes, research, and emails, are additionally exempt under Exemption 5, which applies to “interagency or intra-agency memorandums or letters which would ,not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). In order for Exemption 5 to apply, the documents withheld must be (1) inter-agency or intra-agency; and (2) must fall within, a civil discovery privilege. See, e.g., Shapiro v. U.S. Dep’t of Justice,
The work-product doctrine applies to “documents and tangible things prepared in anticipation of litigation or for trial” by an attorney, or in some circumstances by non-lawyers. See Fed. R. Civ. P. 26(b)(3)(A); Shapiro,
With respect to all of the documents for which the SEC claims this exemption, it is clear that the documents were created for purposes of the Heart Tronics investigation and litigation, or in the case of a . few documents .listed on the Vaughn index, were memos created for other cases but used for research in the Heart Tronics case. See Donnelly Decl. ¶¶ 11-13, 19-20, 26-27; see generally, Vaughn Index. The SEC has thus satisfied the requirement that the documents for which the work-product privilege is sought were “prepared or obtained because of the prospect of litigation.” See In re Sealed Case,
Based on the descriptions on the Vaughn index, most of the documents listed are classic attorney work product: internal mémos and drafts of court filings, legal and fáctual research and analyses related to potential securities violations, recommendations of possible courses of action, and trial preparation materials, including testimony outlines and digests, all prepared or obtained by SEC attorneys during the course of the Heart Tronics investigation and litigation. The SEC has described the nature and content of these documents and the circumstances surrounding their creation — for example, a “[d]raft action memo for the Commission from Enforcement recommending issuance of a Formal Order authorizing an investigation of potential violations of the federal securities laws and outlining facts developed in the investigation,” Vaughn Index at 3, Doc. No. 20. The document was created by' “SEC [ejnforcement attorneys” for the Commission. Id.
Stein objects that the Vaughn index does not sufficiently identify the authors
For a handful of documents described on the Vaughn index, however, the SEC has not provided sufficient information for the Court to determiné that the documents are indeed work product. Documents 5-11 are blue sheet reports
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showing trading data for Heart Tronics stock, which were apparently “requested by [an] SEC attorney.” See Vaughn Index at 1-2, Doc. Nos. 5-11. The SEC claims that this is attorney work product, but gives no further explanation on either the Vaughn index or in the submitted declarations as to why that is the case. Not everything created or requested by an attorney constitutes work product; compilations that merely reflect information already known to an adversary-do not. See, e.g., SEC v. Collins & Aikman Corp.,
Likewise, the Vaughn index’s descriptions are lacking with respect to Document Nos. 66, 201, 209, 265, 266, 268, and 269. Document No. 66 is merely described as a “[f]orm document transmittal sheet to Iron Mountain.” Vaughn Index at 8. No other description is provided that would give the Court any insight into what this document is, what kind of information it contains, or
With respect to the privileged notes, research, and emails, the SEC has likewise failed to provide sufficient information for the Court to determine whether all of. these documents may also be withheld under the narrower, more specific standards of Exemption 5 (as opposed to Exemption 7(A)). It seems clear from the SEC’s description of these documents that some of them likely constitute work product, for example, emails among attorneys working on the Heart Tronics investigation and sharing draft memos, documents, and comments regarding the investigation. Donnelly Deck ¶ 11. But the categories of emails and notes withheld is broad and varied, and not every document or category is obviously work product on its face. Some of the emails, for example, appear more likely to fall under the deliberative process privilege or attorney client privilege, but the SEC has not provided the Court with enough specific detail to determine which documents it seeks to withhold under those privileges, and whether all of the elements of those privileges have been met. See, e.g., id. (describing “emails to senior officers in the SEC’s Division of Enforcement providing information about the case and seeking approval for various steps in the investigation”).
Thus, the Court finds that the documents listed on the Vaughn index, with the exception of the specific documents identified above, are attorney work product and may also be withheld under Exemption 5. With respect to Document Nos. 5-11, 66, 201, 209, 265, 266, 268, and 269, as well as the privileged notes and emails, the SEC has not provided the Court with enough information to determine whether those documents are work product or otherwise exempt from disclosure under Exemption 5. When the agency submits new affidavits about its search of the RenewData materials, it should also submit a more detailed description of the above documents and of the categories of withheld emails and notes, specifying which privilege the agency is asserting with respect to each document or category. The new affidavit should provide the Court with enough information to satisfy the standards of the claimed privileges.
3. Exemption 3
The SEC claims that the Suspicious Activity Reports (SARs) listed on the Vaughn index at entry 278 are properly withheld under Exemption 3, which permits the withholding of documents pursuant to other federal statutes that prohibit disclosure. 5 U.S.C. § 552(b)(3). The SEC argues that the SARs are protected from disclosure under 31 U.S.C. § 5319, a provision of the Bank Secrecy Act which exempts from FOIA disclosure records and reports on monetary instruments-transactions, including SARs. See 31 U.S.C.
4. Exemption 6 & 7(C)
The SEC withheld a handful of documents listed on the Vaughn index under Exemptions 6 and 7(C), both of which protect personal privacy interests. Exemption 6 protects from disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). This exemption covers records and information on an individual “which can be identified as applying to that individual.” U.S. Dep’t of State v. Washington Post Co.,
Pursuant to these exemptions, the SEC withheld in full Document Nos. 12, 13, 14, 16, and 17. These documents are spreadsheets listing individuals with knowledge of Stein’s conduct, provided by SEC informants, and two emails from informant-investors to an SEC attorney describing how Stein allegedly defrauded them. See Vaughn Index at 2-3. The SEC has withheld this information because the disclosure of these documents could reveal the identity of informants who provided information and other potential informants and witnesses who the informant believed had information relevant to the SEC’s investigation. Donnelly Decl. ¶ 37. Based on the Vaughn index, the SEC also appears to have withheld in full Document No. 222, a witness background questionnaire containing handwritten answers and personal information such as social security numbers, family and residence information, dates of birth, etc. See Vaughn Index at 22. This document was redacted in full to protect the witness’s identity. Id. A blank copy of this questionnaire was apparently released in full to Stein. Id. at 28; Donnelly Decl. ¶ 19.
The SEC’ also withheld in part Document Nos. 34, 36, 112, 124, 156, 175, 243, and 244. Document Nos. 34, 36, and 112 redacted the names of attorneys working on the investigation, Vaughn Index at 5, 12; Document Nos. 124, 156, and 175 redacted the names of witnesses who provided investigative testimony, id. at 13,16,18; and Document Nos. 243 and 244 redacted personal information like social security and bank account numbers, id. at 24-25.
Because these records are contained in the SEC’s investigative files, the Court will address the withholding of these records under Exemption 7(C). “It is settled that the privacy interests of third parties mentioned in law enforcement files are ‘substantial,’ while *[t]he public interest
Here, Stein does not directly address Exemptions 6 or 7(C), but he does argue generally that the public interest favors broad disclosure of the'information he has requested because the government has an interest' in knowing “how government agencies investigate and chose [sic] to indict and prosecute alleged offenders on [sic] taxpayer’s expense, all while not searching for the truth.” Stein Opp’n at 12. While the public certainly has a general interest in “matters of substantive law enforcement policy,” CREW,
Nevertheless, Stein alleges that government misconduct took place in both the civil and criminal cases against him, which he argues creates an overriding interest in disclosure. Stein Opp’n at 10-13. But in order to override the privacy interests at stake, Stein must produce “compelling evidence that the agency denying the FOIA request is engaged in illegal activity and .,. that the information sought is necessary in order to confirm or refute that evidence.” Quinon v. FBI,
In short, Stein has failed to explain what public interest exists in the names, addresses, social security numbers, and other personal information of the informants and investigators whose information the government withheld under Exemption 7(C). The private interests in this information, on the other hand, are obvious. The government’s withholding arid partial withholding of' documents urider Exemption 7(C) is appropriate.
D. Segregability
FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the'portions which are exempt.” 5 U.S.C. § 552(b). Where a plaintiff does not challenge the agency’s segregability efforts, courts are required to consider this issue sua sponte. Trans-Pacific Policing Agreement v. U.S. Customs Serv.,
With respect to the documents withheld under Exemption 7(A) (which is the same group of documents withheld under Exemption 5), certain of the privileged emails contained attachments or forwarded documents that the agency did not consider to-be work product standing alone,- but the emails were withheld because they identified what documents or facts SEC attorneys considered significant. Donnelly Decl. ¶ 28. The non-privileged attachments were produced separately to Stein during the Heart Ironies litigation. Id. The SEC states that none of the withheld documents, emails, or notes are. otherwise seg-regable. Id. ¶ 29.
Stein argues generally that the SEC'has failed to show that the documents withheld are not segregable because the agency did not describe document by document on the Vaughn index why certain information could not be segregated. Stein Mot. at 18. Contrary to Stein’s arguments, an agency withholding L documents' under Exemption 7(A) does not need to justify its segregability determination document by document, as the exemption allows agencies to justify withholding based on categories of documents. See Robbins, Geller, Rudman
&
Dowd, LLP v. SEC, No. 3:14-cv-2197,
In addition, the SEC need not demonstrate segregability with respect to those documents that were also withheld as attorney work product under Exemption 5, because where “a document is fully protected as work product, then segrega-bility is not required.” Judicial Watch, Inc. v. U.S. Dep’t of Justice,
Regarding the documents withheld under Exemption 7(C) to protect personal privacy, the SEC has explained why certain documents must be withheld in their entirety, because disclosure would reveal the identity of various informants. See Vaughn Index at 2-3, Doc. Nos. 12-14, 16-17. The SEC stated that it would provide Stein the unredacted portions of those documents only partially withheld under Exemption 7(C) — i.e., Document Nos. 34, 36, 112, 124, 156, 175, 222, 243, and 244 — but has not yet confirmed that it has done so. See Gov’t Mot. for Summ. J. at 27. When the SEC submits its briefs, affidavits, and declarations with respect to the RenewDa-ta materials and Stein’s second category of requests, it should also confirm that it has produced the unredacted portions of these documents to Stein.
Finally, the SEC has confirmed that it has produced in full Document Nos. 229, 231, 233, 234, 236, and 273. Donnelly Decl. ¶ 19; Vaughn Index at 23-24, 28; Gov’t Supp. Br. at 1, 3. While Stein argued in his opening brief that the SEC “failed to produce any documents in this FOIA litigation,” Stein Mot. for Summ. J. at 15, he does not appear to contest in any subsequent brief that the SEC has now produced in full these six documents. Accordingly, the Court finds that the SEC has satisfied its segregability obligations with respect to the documents withheld under Exemption 7(A) and Exemption 3, but has not satisfied its obligations with respect to the partially redacted documents withheld under Exemption 7(C), until it confirms that it has provided the unredacted portions of these documents to Stein.
CONCLUSION
For the foregoing reasons, the Court finds that the government properly withheld documents responsive to Stein’s first category of requests under FOIA Exemptions 3, 7(A), and 7(C), but did not conduct an adequate search for documents responsive to Stein’s second category of requests. Some of the documents withheld under Exemption 7(A) were also properly withheld under Exemption 5, but the Court lacks sufficient information to determine whether the privileged notes and emails, as well as several documents listed on the Vaughn index, were properly withheld under Exemption 5 as well. The Court also finds that the government has satisfied its segregability obligations with respect to all withheld documents except the specific documents identified above withheld under Exemption 7(C). The Court therefore
Notes
. There appears to be an error in the complaint where the paragraph numbering starts over on page 8. To avoid confusion, the Court will' therefore cite to page numbers in the complaint, rather than numbered paragraphs.
. To be clear, the Court makes no determination at this point as to whether these documents are, in fact, covered by a legal privilege; the Court only refers to "privileged” notes, documents or emails as those the government identified' bn its privilege log in the Heart Tronics case; • .
. Stein also includes this declaration in the lengthy set of materials he submitted with his opposition to the government’s motion for summary judgment. See Ex. B., Stein Deck [ECF No. 14-1],
. For example, it cannot be the case that if a FOIA plaintiff submits a request for "Document A,” which the agency produces, that the agency need produce Document A again if the plaintiff submits another request for "Document A” and "Document B” a year later if the agency can demonstrate that it produced Doc- . ument A the first-time.
. Signalife was the predecessor organization to Heart Tronics, and Scharf at one point represented Stein and his co-defendants, including Heart Tronics, during the litigation.
. Because this exhibit is a "composite exhibit” and therefore contains other documents in addition to the SEC’s interrogatory response, the Court has cited to the page number of the PDF document, rather than to the page number of the SEC’s response, for clarity.
. The agency has specifically identified on the Vaughn index which exemptions it is asserting with respect to which documents. Thus, it does not assert Exemption 7(A) with respect to Document Nos. 12, 13, 14, 16, 17, 34, 36, 66, 112,124, 156, 175, 222, 243, and 244. The SEC has also agreed to produce in full Document Nos. 229, 231, 233, 234, 236, and 273. See Vaughn Index [ECF No. 10-4]; Donnelly Deck ¶ 19.
. "Blue sheets” provide trading data and account holder information, and are used by regulatory agencies in enforcement inquiries to'monilor arid analyze firms' trading activity. They are known as "blue sheets” for the color of the form.