Edelman v. SEC, No. 14-1140, 2019 WL 589497 (D.D.C. Feb. 12, 2019) (Moss, J.)

Edelman v. SEC, No. 14-1140, 2019 WL 589497 (D.D.C. Feb. 12, 2019) (Moss, J.)

Re:  Requests for records concerning real estate investment trust created to own consolidation of several properties, including skyscraper

Disposition:  Denying plaintiff's motion for attorney fees

• Attorney Fees, Eligibility:  "The Court agrees that [plaintiff] is eligible for attorneys' fees."  "In Edelman I, the Court held that the SEC had construed his request concerning consumer complaints too narrowly and ordered the SEC to renew its search for responsive documents 'on the understanding that . . . the request encompasse[d] not just documents about the complaints but the complaints themselves.'"  "The Court also held that attorney notes were not categorically exempt from disclosure and, accordingly, directed the SEC to review the attorney notes it had previously withheld and to produce any responsive, non-exempt records."  "As a result, the SEC released more than 1,500 pages of previously withheld records."  "The Court's 'judicial order' in Edelman I afforded [plaintiff] tangible 'relief' in the form of agency records that he would not have obtained without filing suit, and [plaintiff], accordingly, 'has substantially prevailed' in this litigation."
   
• Attorney Fees, Entitlement:  "[T]he Court concludes that awarding attorneys' fees in this case would not serve the purposes of the FOIA fees provision."  First, the court finds that, "[i]n reviewing [plaintiff's] fee request, the Court cannot discern any basis for concluding that [plaintiff's] FOIA requests were 'likely to add to the fund of information that citizens use in making vital political choices.'"  "But more significantly, [plaintiff] never identifies what information of significant 'public value' his FOIA requests sought to reveal."  Next, the court finds that "[t]he second and third factors – the commercial benefit to the plaintiff and the nature of the plaintiff’s interest in the records – also do little, if anything, to advance [plaintiff's] claim to fees."  The court explains that "[plaintiff] acknowledges that, because he is 'a possible future beneficiary of a trust that held . . . ownership' in Empire State Building Associates . . ., the prior owner of the Empire State Building, he has a 'tangential commercial interest' in the records he sought and obtained."  "[T]he Court is unpersuaded that either factors tips measurably in [plaintiff's] favor."  "At most, factors two and three are neutral."  Finally, the court finds that "[t]he final factor . . . cuts decidedly in favor of the SEC."  The court finds that "although far from ideal, the Court is unpersuaded that the SEC's nine-month delay in responding to [plaintiff's] six FOIA requests weighs materially in favor of awarding attorneys' fees," "the Court has already concluded that the SEC's position with respect to the consumer complaints request was 'not far-fetched' and, indeed, was based on a 'possible' reading of the request," "the SEC's decision to withhold attorney notes on a categorical basis was far from unreasonable," and "with respect to the SEC's initial decision to redact portions of Document 1, the Court in Edelman I did not rule that the document had been improperly withheld[, but] . . . [i]nstead, the Court merely instructed the SEC to submit an unredacted version of the document to the Court for in camera review."