Nova Oculus Partners, LLC v. SEC, No. 19-666, 2020 WL 5095485 (D.D.C. Aug. 28, 2020) (Friedrich, J.)

Nova Oculus Partners, LLC v. SEC, No. 19-666, 2020 WL 5095485 (D.D.C. Aug. 28, 2020) (Friedrich, J.)

Re:  Request for correspondence regarding investigative records concerning plaintiff

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Exemption 6; Exemption 7(C); Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that defendant properly withheld:  "(1) identifying information relating to persons, other than defendants in the SEC's enforcement action, who were being investigated or [were] providing information in connection with the investigation; (2) identifying information relating to SEC employees and staff who worked on matters relating to an SEC investigation or litigation, except to the extent that the information was provided in public filings; (3) identifying information regarding an employee of a foreign securities agency; and (4) a defendant's email address."  First, the court finds that "[t]he individuals involved in the SEC's investigation of [plaintiff] have substantial privacy interests in the documents withheld under Exemption 7(C)."  Additionally, the court finds that "the fact that the individuals' identities have been disclosed does not destroy their privacy interests in the nature of their involvement in the SEC enforcement matter, as opposed to the mere fact of that involvement."  "Moreover, [the court finds that] [plaintiff] fails to articulate a compelling public interest in favor of disclosure of the withheld documents."  "[Plaintiff's] unsupported allegation of a putative quid pro quo is not a public interest that outweighs the privacy interests . . . ."  Second, the court finds that "SEC employees 'have a privacy interest in their identifying information and information about their personal lives so that it is not available to individuals who might be dissatisfied with the employees’ work and thus could seek to contact and/or criticize them.'"  "No public interest is served by disclosure of the 'names, email and/or mailing addresses, titles, phone numbers, and other personal information' of the employees working on the plaintiffs' FOIA request."  Finally, the court holds that "SEC complied with its obligation to disclose all reasonably segregable material, notwithstanding its withholding of [certain] documents in full."
   
• Exemption 5, Deliberative Process Privilege, Attorney Work-Product Privilege, Attorney-Client Privilege:  First, the court relates that "SEC withheld three categories of documents under FOIA Exemption 5 and the attorney work-product privilege:  (1) emails or portions of emails about drafting and filing a complaint in the [plaintiff] enforcement case; (2) emails about steps being taken in the [plaintiff] investigation; and (3) emails about litigation in other SEC enforcement cases."  The court holds that "SEC properly withheld these documents under FOIA Exemption 5 and the attorney work-product privilege because all the documents were prepared by or under the direction of attorneys in anticipation of litigation."  "The plaintiffs do not challenge the SEC's withholdings under this privilege."  Second, the court relates that "SEC invoked the attorney-client privilege to withhold part of an email from the SEC's FOIA Office seeking legal counsel from the SEC's Office of General Counsel."  The court holds that, "[b]ecause this email sought legal advice for the agency from an agency lawyer, the SEC properly withheld it under Exemption 5 and the attorney-client privilege."  "The plaintiffs also do not challenge the SEC's withholding under this privilege."  Third, the court relates that "SEC invoked the deliberative process privilege to withhold four categories of documents:  (1) emails or portions of emails about drafting and filing the complaint in the [plaintiff] enforcement case; (2) emails about other steps being taken in the [plaintiff] investigation; (3) emails about litigation in other SEC enforcement actions; and (4) emails related to the processing of [plaintiff's] FOIA request."  Fourth, the court notes that "[t]he agency's declaration makes clear that all the materials withheld were both predecisional and deliberative."  The court finds that "[t]he agency has also attested that it reviewed all documents withheld under this privilege and 'segregated and provided any portions that are not deliberative.'"  "The SEC has therefore fully justified its withholdings under the deliberative process privilege."  Finally, the court relates that "[plaintiff] argues that the deliberative process privilege does not apply under the circumstances of this case because of the government misconduct exception."  The court holds that "[a]ssuming the government misconduct exception does apply in the FOIA context, the exception does not apply in this case for largely the same reasons discussed above:  namely, the plaintiffs have offered no 'reason to believe the documents sought may shed light on government misconduct.'"