Government Accountability & Oversight v. SEC, No. 23-2462, 2025 WL 2709790 (D.D.C. Sept. 23, 2025) (Alikhan, J.)

Government Accountability & Oversight v. SEC, No. 23-2462, 2025 WL 2709790 (D.D.C. Sept. 23, 2025) (Alikhan, J.)

Re: Request for certain email communications

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

• Exemption 5, Deliberative Process Privilege:      The court holds that, “[t]o begin, there is no ‘blanket requirement that a Vaughn Index must contain the roles of every individual mentioned in the withheld records.’”  “While information about each individual’s role may aid a court in determining whether the deliberative-process privilege applies, it is not necessary where, as here, the Vaughn index and supporting declaration from . . . an attorney in the SEC’s Office of the General Counsel, clarify that every communication in question was between SEC staff members.”      “While GAO argues that additional information is necessary because ‘recommendations from subordinates to superiors lie at the core of the deliberative-process privilege,’ . . . the D.C. Circuit has clarified that ‘[t]here is no such directional precondition to protection under the deliberative process privilege[]’ . . . .”  “In any case, ‘the decisionmaking authority vested in’ the authors and recipients of the emails and their ‘relative positions in the chain of command,’ . . . confirm that the emails were deliberative . . . .”      “The court determines that the SEC has provided sufficient information in the Vaughn index and [defendant’s] declaration for it to conclude that the withheld records concerning the climate rulemaking are covered by the deliberative-process privilege but that the entries concerning ‘various rulemakings[]’ fall short.”  “The majority of the entries in the Vaughn index specify that the withheld record concerned the climate rulemaking.”  “The Vaughn index and [defendant’s] declaration . . . demonstrate that the withheld [climate rulemaking] emails bear on ‘“the formulation or exercise of . . . policy-oriented judgment” or “the process by which policy is formulated.”’”     
  
  “The SEC’s three Vaughn index entries ‘regarding various rulemakings,’ . . . present a closer question.”  “Unlike the other entries, which specify that they pertain to the climate rulemaking, these three are considerably less specific about the subject matter of the withheld records.”  “For two of the entries in question, the SEC explains that ‘[i]n an email among SEC staff, a discussion of key issues, noteworthy updates, and upcoming meetings regarding various rulemakings was withheld’ because the discussion ‘reflects staff members’ thoughts and recommendations regarding the SEC’s process, considerations, and priorities in developing various rulemakings.’”  “For the third entry, the SEC explains that ‘[i]n an email among SEC staff, a discussion regarding various rulemakings was withheld’ because the discussion ‘reflects a staff member’s opinion on the substance of various rulemakings.’”  “For each entry, the SEC asserts that the withheld information is predecisional because it concerns ‘discussion in developing the SEC’s rulemakings prior to their release.’”  “As an initial matter, the SEC’s failure to provide information about the subject matter of the rulemakings at issue leaves the court with no means to evaluate whether the conversations were indeed predecisional aside from the agency’s say-so.” “But even if the court were to look past this obvious deficiency, it is not clear that ‘a discussion of key issues, noteworthy updates, and upcoming meetings regarding various rulemakings’ entails any deliberative process at all, particularly when the court has no information regarding what ‘issues,’ ‘updates,’ and ‘rulemakings’ were discussed.”  “[W]hile the SEC claims that these discussions ‘reflect[ ] staff members’ thoughts and recommendations regarding the SEC’s process, considerations, and priorities in developing various rulemakings,’ that is just another vague statement.”  “Without further explanation, the court cannot assess how disclosure of these records would reveal staff members’ ‘thoughts and recommendations’ in a way that would affect the development of any rulemaking.”  “If the SEC wishes to withhold these records, it must provide the court with sufficient information to confirm that they reflect ‘the give-and-take of the consultative process.’”
   
• Litigation Considerations, Evidentiary Showing, Foreseeable Harm Showing & Exemption 5, Foreseeable Harm and Other Considerations:  The court holds that “[r]elying on [defendant’s] declaration, the SEC sufficiently makes [the foreseeable harm] showing as to its withholdings of records concerning the climate rulemaking.”  “[Defendant] avers that SEC ‘[s]taff at all levels can have a variety of views and opinions on a proposed rule that they must share and discuss to determine the best result.’”  “In the process of rulemaking, staff ‘may change their views of what approach is best’ and ‘determine that certain ideas have no merit.’”  “In [defendant’s] view, the possible harm posed by disclosure is firm:  ‘if SEC staff knew . . . release [of their predecisional discussion] was possible, they would be reluctant to record their views and engage in open discussion during the rule drafting process,’ and this chilling effect ‘could adversely affect rulemaking because good solutions are often found as staff share all possible approaches, even those that are ultimately dismissed.’”  “Additionally, [defendant]  explains that a contrary approach might also slow down the rulemaking process and lead to public confusion.”  “Because [defendant’s] declaration ties ‘specified harm[s]’ – missing policy solutions, slower rulemaking, and public confusion – to the disclosure of ‘specific information,’ including evaluations of and recommendations regarding a specific rulemaking, it sufficiently demonstrates that foreseeable harm would result from disclosure of the information in question.”
  
  “However, for the same reasons that the SEC’s general references to ‘various rulemakings’ in the three entries in the Vaughn index discussed earlier . . . do not suffice for purposes of assessing application of the deliberative-process privilege, they also fail to provide the information necessary for the court to determine that disclosure of the withheld information could result in foreseeable harm.”  “Put simply, with so little information about the kind of rulemaking involved in the withheld records, the court cannot determine with any level of certainty whether the harms [defendant] describes are present.”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing: The court relates that, “[i]n his declaration, [defendant] explains that the SEC conducted a ‘line-by-line review’ of the withheld documents, ‘determine[d] whether any portions of those records could be segregated for public disclosure,’ and released the relevant information.’”  “[Defendant] adds that the SEC has further reviewed all documents responsive to the request and ‘disclosed all portions of documents that it reasonably foresees could be disclosed without causing harm to the SEC’s interests protected by Exemption 5.’”  “Given the presumption of compliance with segregability requirements that is afforded to agencies, the court is satisfied with [defendant’s] statements as they relate to the Vaughn index entries concerning the climate rulemaking.”
  
  “As for the Vaughn entries regarding ‘various rulemakings,’ the court determines that they would likely support ‘a belief by a reasonable person that the agency failed to comply with its obligation’ to segregate . . . because it is difficult to see how all the information in the emails described as containing ‘discussion of key issues, noteworthy updates, and upcoming meetings,’ . . . could chill agency rulemaking.”  “It appears to the court that least some of the noteworthy updates and mentions of upcoming meetings could be reasonably segregated.” “However, without additional information about these communications, as described above, . . . the court is ill-equipped to make a final determination on their potential segregability.”