Gov’t Accountability & Oversight v. SEC, No. 23-3268, 2024 WL 4828107 (D.D.C. Nov. 19, 2024) (Contreras, J.)

Gov’t Accountability & Oversight v. SEC, No. 23-3268, 2024 WL 4828107 (D.D.C. Nov. 19, 2024) (Contreras, J.)

Re:  Request for records concerning California climate risk disclosure rule and its impact on SEC’s cost assessment of its own rule

Disposition:  Denying plaintiff’s motion for attorney fees and costs

• Attorney Fees, Eligibility:  “The Court agrees with the SEC that, as a threshold matter, [plaintiff] has not proved its eligibility for attorney’s fees.”  “[Plaintiff] contends that the SEC’s ‘releases occurred only because [plaintiff] diligently pursued this litigation.’”  “But ‘there is no reason to think’ that the SEC would not have released the documents absent [plaintiff’s] suit.”  “In short, by the time [plaintiff] filed its complaint, the SEC had already begun processing the FOIA request.”  “Evidence that the SEC would not have released the documents, or that it would have taken longer than it did absent the lawsuit, is further rebutted by the fact that the SEC fully completed [plaintiff’s] request on par with the average processing time for complex FOIA requests in 2023.”  Additionally, the court finds that, “[h]ere, the SEC notified [plaintiff] of its right to appeal any determination and ‘provid[ed] the pertinent instructions’ when it issued a response to [plaintiff’s] FOIA requests and released the responsive records on February 22, 2024.” “[Plaintiff’s] counsel subsequently challenged SEC’s withholdings ‘on a single page of the 363 pages the FOIA Office released.’”  “After ‘further consultations,’ the SEC re-released the page with modified withholdings within two weeks.”  “While [plaintiff] argues that it ‘only obtained records in this matter through post-litigation “voluntary” releases,’ including a previously withheld record, . . . ‘the bare fact that the re-release occurred is insufficient to demonstrate that it was caused by the litigation.’”  “The Court also finds that [plaintiff’s] argument that it substantially prevailed because the SEC released all of the records ‘only after litigation had begun’ is ineffective.”  “Here, the parties agree that the SEC released all of its documents post-litigation, but the Court reiterates that [plaintiff] filed suit only one day after receiving the SEC’s notification confirming receipt of its FOIA requests.” “Therefore, the records were ‘necessarily released’ after litigation.”  “In sum, [plaintiff] has not shown that its lawsuit substantially caused the SEC to release records to [plaintiff] and the Court finds that Defendant made a good faith effort to respond to Plaintiff’s request in a timely manner.”