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Pub. Investors Arbitration Bar Associations v. SEC, No. 13-5137, 2014 WL 5904725 (D.C. Cir. Nov. 14, 2014) (Tatel, J.)


Pub. Investors Arbitration Bar Associations v. SEC, No. 13-5137, 2014 WL 5904725 (D.C. Cir. Nov. 14, 2014) (Tatel, J.)

Re:  Request for records that Securities and Exchange Commission collected while examining Financial Industry Regulatory Authority's program for arbitrating disputes between securities brokers and customers

Disposition:  Affirming district court's grant of defendant's motion for summary judgment

  • Exemption 8:  The Court of Appeals for the D.C. Circuit holds that "the Commission satisfied both of Exemption 8's requirements and thus properly withheld all responsive documents."  First, the D.C. Circuit finds that "[i]n this case, the statute's plain meaning is all but conclusive."  "Guided by the dictionary, [the court] think[s] it quite clear that 'examination' reports encompass any report stemming from the Commission 'inspect[ing] closely' or 'inquir[ing] carefully' into something."  Therefore, the D.C. Circuit "hold[s] that documents the Commission collects while examining financial institutions—that is, while examining any organization the agency regulates—are exempt from disclosure."  "This is true no matter the records' substance so long as they relate to a resulting report."  Additionally, the court "think[s] it important to emphasize that [its] broad reading of Exemption 8 extends no further than the walls of the Securities and Exchange Commission."  "Because the 2010 amendments defined 'financial institution' broadly only with respect to the Commission, this opinion has nothing to say about the ability of other financial agencies—say, the Consumer Financial Protection Bureau—to withhold specific records."  Second, the D.C. Circuit finds that "as [it has] explained, an 'examination report' is any report arising out of a 'close inspection' or 'careful inquiry.'"  "[Plaintiff] offers no reason to think the Commission was not conducting such an inspection or inquiry when responding to customer complaints."  "So even if a particular withheld document relates only to an inspection of a customer complaint, Exemption 8 applies with full force."

    In a concurring opinion, Circuit Judge Brown states that "our case law has derived a secondary purpose behind Exemption 8's promulgation, not moored directly to the statutory text but of some undeniable, though not equal, import: 'safeguard[ing] the relationship between the banks and their supervising agencies.'"  "Yet, though this secondary purpose may at times carry significant weight, when standing alone, it ought not thwart FOIA's broad overarching rule favoring disclosure, in all instances where a vaguely cooperative interest in the regulation of financial institutions is implicated."
Court Decision Topic(s)
Court of Appeals opinions
Exemption 8
Updated January 26, 2022