Empower Oversight Whistleblowers & Rsch. v. SEC, No. 21-1370, 2023 WL 4353148 (E.D. Va. July 5, 2023) (Alston, Jr., J.)

Empower Oversight Whistleblowers & Rsch. v. SEC, No. 21-1370, 2023 WL 4353148 (E.D. Va. July 5, 2023) (Alston, Jr., J.)

Re:  Requests for records concerning contacts that SEC personnel had with individuals from three entities

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment

• Litigation Considerations:  The court finds that “there is no ‘short and plain statement of [a] claim’ that the SEC improperly redacted the documents it did produce.”  “Because it is axiomatic that a Plaintiff cannot add claims through briefing, the Court will not address any claim related to the purported issues with the SEC’s redactions.”

• Litigation Considerations, Mootness and Other Grounds for Dismissal & Pattern-or-Practice Claims; Procedural Requirements, Time Limits:  “The Court . . . finds that any claims related to the timeliness of the SEC’s productions are moot.”  The court finds that “[i]t is undisputed that the SEC did not meet the time impositions that the FOIA statute provides.”  “Defendant does, however, contend that any claim related to the untimeliness of its response to Plaintiff’s FOIA request is moot.”  “The Court agrees with Defendant on this issue.”  “Many courts across jurisdictions have held that a timeliness claim pursuant to 5 U.S.C. § 552(a)(6)(A) is moot ‘[o]nce an agency has made its final determination.’”  “Contrary to what Plaintiff argues, for this inquiry, it does not matter that there is still a ‘live controversy’ over whether the SEC conducted adequate searches in response to Plaintiff’s FOIA requests.”  “There is a difference between Plaintiff's claims here – which is that the SEC’s searches were incomplete –and what is relevant to the timeliness inquiry – whether the SEC’s determination was final.”  “Here, it is undisputed that the SEC has issued a final determination in response to Plaintiff’s FOIA requests.”  “Because that determination is final, and Defendant avers that ‘[it has] released all-non exempt documents,’ there is no ‘basis for a claim for relief’ rooted in the untimely disclosure.”
  
  Additionally, the court finds that “this is not a claim that is ‘capable of repetition, yet evading review,’ such that this Court can ignore the mootness of the FOIA timeliness claim.”  “Plaintiff has pointed to nothing more than the fact that it may continue to bring FOIA claims in this district; in no way does that show a ‘demonstrated probability’ that it will once again submit claims that the SEC will respond to without complying with the FOIA timing requirements.”  “Indeed, Plaintiff has not pointed to any ‘policy or practice that will impair [its] lawful access to information in the future,’ which, as it acknowledges, is the standard it must meet to overcome the fact that the timeliness claim is moot.”
   
• Litigation Considerations, Vaughn Index/Declaration & Adequacy of Search:  “The Court agrees with Plaintiff and finds that Defendant is not entitled to Summary Judgment on [this issue] for two independent reasons:  (1) the SEC’s supporting affidavit is insufficient in light of the governing FOIA principles; and (2) the SEC’s searches were not adequate, given the text of Plaintiff’s requests.”  “First, the Court examines the SEC’s affidavit.”  “The limited nature of the SEC’s declaration here renders it inadequate for [the requests at issue].”  “In this case, the affidavit does not explain why, for each search, the SEC limited its initial search to emails the targeted SEC employee sent to a specific email domain.”  “[T]he affidavit has provided no ‘logical explanations' why its initial search addressed only a portion of Plaintiff’s request, and thus it has not ‘evince[d] a good faith effort to design a comprehensive search.’”  “Because there is no ‘discernable reason’ for the agency’s choice to forgo other searches that would address the Plaintiff’s request, the declaration is deficient."
  
  “Second, the Court examines the adequacy of the SEC’s searches.”  “[T]he SEC’s searches are inadequate given the plain language of [the requests].”  “The SEC claims that it hewed to the language in Plaintiff’s [FOIA] requests, implying that the content of Plaintiff’s requests was limited to emails sent to specific domain names.”  “The Court does not find this persuasive, as Defendant’s argument rests on the premise that the word ‘including’ means something that it does not.”  “Take, for example, Request -02531, which asks for ‘[a]ll records relating to communications from May of 2017 through December of 2020 between [one individual] and any personnel from [an outside law firm], including calendar entries, notes, or emails between [the individual] and any email address from the domain “@stblaw.com.”’”  “The SEC’s searches only covered the portion of the request coming after the word ‘including,’ as it searched emails and calendar entries between [the individual] and emails from the domain @stblaw.com.”  “But, as the Supreme Court has made clear time and again, the word ‘including’ does not limit what precedes it in such a way.”