WI L L I AMS & CONNO L L Y L L P,

Plaintiff,

v. U.S. SECUR I TI ES AND EXCHAN GE COMMI SSI ON, Def endant. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 09–651 (CKK)

MEMORAN DUM OP INION (August 4, 2010) This is a Fre edom of Information Ac t (“F OIA”) case broug ht by Plaintiff Wi lliams & Connolly L L P ag ainst the U.S. Securities and Exchang e Commissi on (“SEC”) r elatingto three reque sts for information submitted by Plaintiff to which the SEC has now responde d. Presently pendingbefor e the Court is the SEC’s [21] Motion for Summary J udg ment, in which the ag ency contends that it has produc ed all re sponsive rec ords except for those rec ords withheld pursuant to a F OIA exemption. P laintiff opposes the motion, arguing tha t the FOI A exemptions i nvoked by the SEC do not apply

to cer tain rec ords that wer e withheld. The SEC has filed a re ply to Plaintiff’s opposition, and the motion i s now ripe f or dec ision. After a

thoroug h revie w of the parties’ submissi ons and attac hments thereto a nd applicable case law and statutory authority , the Court shall GRANT-I

N-PART the SEC’s Motion for Summary J udg ment and DEN Y-I

N-PART WI THOUT PREJ UDI CE with respec t to one document withheld by the SEC under F OIA Ex emption 6.I. BACKG ROUND

A. SEC Inve

stigati ons On J une 14, 2000, the SEC filed a c ivil enforce ment action ag ainst four for mer e x ecutives of Cendant Corpor ation (“Cenda nt”) a nd its predec essor c ompany CUC I nternational, I nc. (“CUC”) in connec tion with an alleg ed ac counting fra ud scheme that deprive d share holders of billions of dollars a

nd inflated e x ecutive pa

y by milli ons. Def.’ s Stm t. ¶ 1. The de fenda nts 1 included Cosmo Corigliano, the f ormer CUC chie f financ ial office r and Cenda nt executive vice president, a

nd Kevin Ke arne y , the forme r CUC director of financ ial repor

ting. Id. On J une 6, 2000, Mr. Kea

rney consente d to the entry

of final judg ment ag ainst him. Id. On April 16, 2004, Mr. Corig liano and his wife c onsented to the e ntry of final judgment ag ainst them; the final judgme nt require d the Corig lianos to transfer most of their assets to a c ourt-appointed r ece iver. Id. ¶ 2. Followingan investig ation by the SEC, the gove rnment brought a cr iminal prosec ution ag ainst Walter A. For bes for secur ities fraud, ultimately obtaining a

conviction on October 31, 2006. Pl.’s St mt. ¶ 1. Wi lliams & Connolly L L P served a s leg al counse l for Mr. For bes duringthese proc eeding s. Id. Duringthe cour se of litiga tion leading up to the trial, the g overnme nt produce d thousands of docume nts pursuant to Fe dera l Rule of Criminal Procedure 16. Id. Some of these doc uments were notes of intervie ws or conve rsations that SEC attorney s and enf orce ment staff ha d with Cosmo C orig liano, Kevin Ke arne y , and/or their c ounsel in 1999 and 2000 duringthe SEC’s investigation of Cendant and CUC. Pl.’s Stm t. ¶ 3. As a pre liminary

matter, the Court notes that it strictly adher es to the text of L ocal Civil 1 Rule 7(h) (f

ormerly Rule 56.1 when re solving motions for summary judgme nt). See B urke v

. Gould , 286 F.3d 513, 519 ( D.C. Cir. 2002) (findingdistrict courts must invoke the local rule befor e apply

ing it to the ca se). Thus, in most instances the Court shall cite only to one par

ty ’s Statement of Mater ial Fa cts (“Stmt.”) unless a statement is contra dicted by the opposing party

. 2B. FOIA Re quests Submitted by Plaintiff

On May 10, 2005, Plaintiff submit ted a F OIA re quest to the SEC seeking rec ords re lating to Cosmo C orig liano and the Cenda nt investigation and secur ities enforc ement ac tion (“F irst Request”) . Def

.’s Stmt. ¶ 3. The SEC determined that it would need to re view re cords f rom over 300 box es of investig ative docume nts to comply with the reque st, and the ag ency place d the reque st into i ts “first-in, first-out” proce ssing sy stem. Id. ¶¶ 4- 5. At the end of 2008, the Fir st Request came to the front of the proc essing queue, a

nd the ag ency

beg an collec ting a

nd proce ssing r esponsive re cords. Id. ¶ 6. On Fe bruar

y 26, 2009, Plaintiff submit ted a se cond F OIA re quest (“Sec ond Request”) to the SEC requestingcommunications with SEC C ommissi oners r eg arding a propose d settlement ag ree ment betwee n Mr. Corig liano and the SEC. Def .’s Stmt. ¶ 7. The same da y , Plaintiff submitt ed a third F OIA re quest (“T hird Request”) to the SEC requesting rec ords re lating to Kevin Ke arne y , Cry stal J ourney Candles (a

company owned by

the Corig lianos), and the r etainer that Mr. Corig liano paid his attorney s. Id. ¶ 8. The SEC’s F OIA Off ice pr ovided a c opy

of all three reque sts to each staf f member in the SEC’s Divisi on of Enfor ceme nt who had wor ked on the Cendant litigation. Id. ¶ 9. The F OIA Off ice a lso contacte d curr ent and f ormer SEC Commi ssioners and their

staff r eg arding

documents that may

be re sponsive to the Second Request. Id. ¶ 12. Afte r loca ting a ll potentially

responsive r ecor ds, the FO I A Off ice r eviewe d them in conjunction with the SEC’s Office of Ge nera l Counsel. Id. ¶ 16. On May 19, 2009, the SEC produced to Plaintiff 2400 pag es of r ecor ds responsive to the First Reque st. Def.’ s Stm t. ¶ 17. In response to the Second and T hird Requests, the F OIA Off ice informed Plaintiff that it had alr eady produce d all nonexempt responsive rec ords in response to

3Plaintiff’s First Reque st. Id. ¶ 18.

C. The Filing of T

his Action Plaintiff filed this action in the U.S. District Court for the Ea stern District of V irg inia on Fe bruar y 18, 2009. On April 1, 2009, pursua nt to the parties’ a g ree ment, J udg e Claude M. Hilton ordere d that the ca se be tra nsfer red to this Court. On October 6, 2009, the SEC filed its Motion for Summary

J udg ment, which included a n index of documents withheld by the ag ency under va rious FOIA exemptions pursuant to Vaughn v. Rose n , 484 F.2d 802, 827 ( D.C. Cir. 1973). The a g ency ’s Vaughn index l ists 505 documents withheld pursuant to FOIA Exempti ons 5, 6, and/or 7(C), 5 U .S.C. § 552(b)(5), (6) , & ( 7)(C). See Def .’s Mot. for Summ. J ., Vaughn Index. On October 30, 2009, the SEC produced 64 a dditional pag es of r ecor ds responsive to Plaintiff’s FOIA re quests, alongwith a supplemental Vaughn index l isting one a dditional document withheld pursua nt to FOIA Exempti on 7(C). See Pl.’s Opp’n, Exs . I -J. On Novembe r 20, 2009, Plaintiff filed its Opposition to Defenda nt’s Motion for Summary J udg ment. In its Oppositi on, Plaintiff contends that the SEC improperly withheld documents under

FOIA Exempti ons 5 and 6. Specific ally , Plaintiff contends that the SEC should have pr oduced a ll handwritten notes of SEC enfor ceme nt staff intervie ws or conve rsations with Cosmo C orig liano, Kevin Ke arne y , and/or their c ounsel that are listed in the SEC ’s Vaughn index (numbers 133-35, 142-44, 160, 166-70, 175- 77, 207-08, 210, 217-23, 225- 26, 228-34, 241, 244, 251, 260, 263-64, 302, 332, 340, 342, 347-48, 351, 356, 361- 63, 433, 437, 439, 443, 445- 46, 450-56, 458-59, 461- 63, 466, 469, 472-73, 475-99, 501- 05). In addition, Plainti ff c ontends that two documents (84, 254) for whic h the SEC claims an exemption shoul d be produc ed af ter reda cting any

persona l information relating to Cosmo Corigliano. Doc ument 84 is describe d in

4the Vaughn index as “Settlement proposal submitted to S EC by Kramer, L evin. Containing confide ntial, detailed fina ncial information pertainingto the Corigliano f amily .” See Vaughn Index at 5. After Plaintiff filed its Opposition, the SEC m ade a final supplemental production on De cembe r 11, 2009, produc ing se g reg able, none x empt information as to docume nt 254, which re nders Plaintiff’s objec tion moot as to t his document. Plaintiff subsequently filed its Reply in support of its Moti on for Summary J udg ment. II. LEGAL STANDARD In revie wing motions for summary judgme nt under F OIA, the Court must conduct a de

novo revie w of the re cord. See 5 U.S.C. § 522(a) (4)( B) . In the FO I A context, “ de novo revie w require s the court to ‘a scer tain whether

the ag ency

has sustained its burden of demonstratingthat the documents re quested . . . a re e x empt from disclosure under the FOIA.’” Assassinati on Archive s & Researc h Ctr. v. Cent. Intelligence A gency , 334 F.3d 55, 57 ( D.C. Cir. 2003) (quoting Summers v . Dep’ t of Justice , 140 F.3d 1077, 1080 ( D.C. Cir. 1998)). Summary judgme nt is proper whe n “the plea dings, the discovery [i f any] and disclosure mater ials on file, and any aff idavits show that there is no g enuine issue a s to any materia l fac t and that the movant is entitled to judgment as a matter of la

w.” F E D . R. C I V . P. 56(c)

. All underlying f

acts a nd infere nces a

re a naly zed in the light most favorable to the nonmoving pa

rty

. Anderson v. Liberty Lobby, I nc. , 477 U.S. 242, 247 (1986). Only afte r an a g ency seekingsummary

judgme nt proves that it has fully discharg ed its FOI

A obliga tions is s ummary judgme nt appropriate. Moore v . Aspin , 916 F. Supp. 32, 35 (D.D .C. 1996) (citing W eisberg v. Dep’ t of Justice , 705 F.2d 1344, 1350 ( D.C. Cir. 1983). In opposing a motion for summary judgme nt, a par

ty must offer mor e than c onclusory statements. See B roaddrick v. E xec . Office of

5the President , 139 F. Supp. 2d 55, 65 (D.D .C. 2001) (citing Laningham v. U.S. Navy , 813 F.2d

1236, 1241 (D.C. Cir. 1987)). Indeed, a plaintiff pursuingan ac tion under F OIA must establish that the ag ency

has improper ly

claimed a

n exemption as a matter of la w or that the a g ency

failed to seg reg ate a

nd disclose all nonexempt information in the reque sted documents. See P erryTorres v. Dep’ t of State , 404 F. Supp. 2d 140, 142 (D.D .C. 2005). Congr ess ena cted F OIA for the purpose of introducingtranspar ency to gove rnment activities. See Ste rn v. Fed. B ureau of Inve stigati on , 737 F.2d 84, 88 ( D.C. Cir. 1984). Congr ess

rema ined sensitive, howeve r, to the nee d to achieve balanc e betwe en this objective a nd the vulnera bility of “le g itimate gove rnmental a nd private inter ests [t hat] could be harme d by rele ase of ce rtain ty

pes of infor

mation.” Criti cal Mass Energy Project v. Nuc lear Regulatory Comm’n , 975 F.2d 871, 872 ( D.C. Cir. 1992); see also Summe rs v. Dep’ t of Justice , 140 F.3d 1077, 1079 (D.C. Cir. 1998). Ac cording ly , FOIA provides nine e x emptions pursuant to which an a g ency may withhold requested inf

ormation. See 5 U.S.C. §§ 552(a)(4) (B ), (b) (1)- (9). The ag ency must demonstrate the validity

of any exemption t hat it asserts. See id. ; Bec k v. D ep’t of Justice , 997 F.2d 1489, 1491 ( D.C. Cir. 1993) (“Consistent with the purpose of the Act, the bur den is on the ag ency to justi fy withholding re quested doc uments.”) In addition, summary judgme nt may

be g rante d on the basis of the a g ency ’s ac company ing a ffidavits or de clar ations if they descr ibe “the justifications for nondisclosure w ith reasona bly specific detail, demonstrate that the information withheld logic ally

falls within the claimed e x emption, and ar e not controve rted by either c ontrary evidenc e in the re cord nor evidenc e of a g ency

bad fa ith.” Military Audit Project v. Casey , 656 F.2d 724, 738 ( D.C. Cir. 1981). These a ffidavits may be submitted by

an off icial who coordinated the sea

rch, a nd need not be from ea ch individual who par ticipated in the sea

rch. See

6SafeCard Servs. v. SE C , 926 F.2d 1197, 1200 ( D.C. Cir. 1991). Where the a dequac y of the

sear ch is in doubt, the ag ency “must show beyond materia l doubt . . . that it has conducted a

sear ch re asonably

calc ulated to uncove r all re levant docume nts.” W eisberg , 705 F.2d at 1351. But “ [t ]here is no requir ement that an a g ency sear ch eve ry

rec ord sy stem.” Oglesby v . U.S. Dep’ t of the Army , 920 F.2d 57, 68 ( D.C. Cir. 1990). An ag ency

also has the bur den of de tailing what proportion of the infor mation in a document is nonexempt and how that materia l is dispersed throug hout the document. Mead D ata Cent., Inc. v . U.S. Dep’ t of the Air Force , 566 F.2d 242, 261 ( D.C. Cir. 1977). Any nonexempt information that is rea sonably seg reg able f

rom the re quested re cords must be disclosed. Oglesby v. U.S. De p’t of the Army , 79 F.3d 1172, 1178 ( D.C. Cir. 1996). In addition, district courts are obligated to consider se g reg ability issues sua sponte even when the pa rties have not specifica lly raised suc h claims. Trans-Pac. Policing Agree ment v. U .S. Customs Serv. , 177 F.3d 1022, 1028 (D.C. Cir. 1999). III. DISCUSS ION The SEC has moved for

summary judgme nt on the g rounds that it has produce d all nonexempt records r esponsive to Plaintiff’s FO I A re quests and has the ref ore me t its burden under the statute. Plaintiff does not dispute that the SEC conducted a n adequate sea

rch f or

rec ords re sponsive to its requests and has the ref ore limited its opposit ion to two discrete issues: (1) whe ther the SEC proper ly withheld handwr itten notes of SEC enforc ement staff interviews or

conver sations with Cosm o Corigliano, K evin Kea rney , and/or their c ounsel pursuant to F OIA Ex emption 5; and (2) whe ther the SEC properly withheld in its entirety

a settlement proposa l

7containingconfide ntial, detailed fina ncial information pertainingto the Corigliano f amily

. The

2 Court shall address e ach of these issues below. A. Rec ords W

ithheld Pursuant to FOIA Exe mption 5 Plaintiff challeng es the SEC’s dec ision to wit hhold 103 documents listed on its Vaughn index as covere d by

FOIA Exempti on 5. Ex emption 5 protects “inter -ag ency or intra- ag ency memorandums or le tters which would not be a vailable by

law to a pa

rty other than a

n ag ency in litigation with the ag ency .” 5 U.S.C. § 522(b)(5) . Ex emption 5 applies to materials that would be privileg ed in the civil discover y context, such as materia ls protected by the deliber ative proce ss privileg e, the attorney -client privileg e, and the attorney work-pr oduct privileg e. See NLRB v. Sears, Roebuc k &Co. , 421 U.S. 132, 149 (1975). In order to “justify

nondisclosure under Exemption 5, an ag ency must show that the ty

pe of ma terial it seeks to withhold is g ener ally protec ted in civil discovery for r easons similar to those asse rted by the ag ency

in the FOIA context.” Burka v. U .S. Dep’ t of Health &Human Serv s. , 87 F.3d 508, 517 ( D.C. Cir. 1996). In this case, the SEC claims that the doc uments—which consist of handwritten notes by SEC Enforce ment staff r eg ardingconver sations with Cosm o Corigliano, K evin Kea rney , and/or their counse l—are protec ted by the work pr oduct doctrine and the de liberative pr ocess pr ivilege

. The Court shall consider

eac h of these c ontentions below. 1. Attorney

Work Product Doctrine FOIA Exempti on 5 incorporates the work pr oduct doctrine , which shields “doc uments and tang ible things that a re pr epar ed in anticipation of litig ation or for trial by or for another

Plaintiff does not challeng e the SEC’s re dactions of pe rsonal information pursuant to 2 FOIA Exempti on 7(C), 5 U.S.C. § 552(b)(7) (C). See Pl.’s Opp’n at 1 n.1. 8party

or its repre sentative (inc luding the othe r par ty ’s attorne y , consultant, . . . or ag ent).” F E D . R. C I V . P. 26(b)( 3); Tax Analysts v. IRS, 117 F.3d 607, 620 ( D.C. Cir. 1997). The wor k product doctrine pr otects both delibera tive materia ls such as mental impressions, conc lusions, opini ons, and leg al theorie s and fa ctual mater ials prepa red in a nticipation of litigation. Tax Analysts , 117 F.3d at 620. I n his declar ation in support of summary judgme nt, David Fr ohlich, an Assistant Direc tor in the SEC’s Division of Enforce ment, explains t hat the handwritten notes soug ht by Plaintiff were g ener ated dur ing the Cendant investig ation in anticipation of litiga tion with Mr. Corigliano, Mr . Kea

rney , and other s. See Def .’s Mot. for Summ. J ., Dec l. of David F rohlich (“F rohlich De cl.”) ¶ 6. Plaintiff does not dispute this statement and conc edes tha t these documents qualify

as attorne y

work produc t. Howeve r, Plaintiff contends that the SEC has waived a ny work produc t privileg e with re spect to these doc uments beca use similar handwr itten notes wer e disclosed to Plaintiff duringthe cr iminal prosecution of Mr. F orbes. Ac cording to the decla ration of Christopher R. Ha rt, an attorney

at Will iams & Connolly

L L P, at least eleve n of the documents of ha

ndwritten notes identified in the Vaughn index were produc ed by the g overnme nt during the For bes matter. See Pl.’s Opp’n, Dec l. of Christopher R. Har t ¶¶ 3-5. 3 Plaintiff thus contends that the g overnme nt has “wa ived the wor k product privileg e as to e ntire subject matter of

handwr itten notes betwee n SEC st aff and Corig liano, Kea

rney , or their respe ctive counse l.” Pl.’s Opp’n at 9. As with the attorney -client privileg e, a pa rty may waive the work produc t privileg e

Be cause Mr. Har

t has not seen the doc uments the ag ency used to prepa

re its Vaughn 3 index, he can only

say that “the g overnme nt appea red to have alr eady

produce d” these eleve n documents. See Har

t Decl. ¶ 4. For purposes of r esolving this mot ion, the Court shall assume that the documents we re in fa ct disclosed duringthe For bes prose cution. 9throug h disclosure. See I n re United MineW

orkers of Am. Em

ployeeBene

fit Plans L itig. , 159 F.R.D. 307, 310 (D .D.C. 1994) (“ I t seems . . . clea r in this Ci rcuit that the disclosure of documents protec ted by

the attorne y

work produc t privileg e wa ives the protec tions of the attorney work produc t privileg e as to the doc uments disclosed.”) H oweve r, “the test for wa iving attorney work produc t protection is more string ent than the test for waivingattorney-client privileg e.” Goodrich Corp. v. U.S. Env tl. Prot. Agency , 593 F. Supp. 2d 184, 191 (D.D .C. 2009). Although disc losure of doc uments waives attorney -client privileg e with re spect to all other communications related to the same subjec t matter, the scope of “subjec t matter wa iver” with respe ct to work produc t materials is more limited. In re United M ine W orkers , 159 F.R.D. at 310-12; Goodrich , 593 F. Supp. 2d at 191-92. “ [A] subject-matter waiver of the attorney

work product privileg e should only be found when it would be inconsistent with the purposes of the work produc t privileg e to limit t he wa iver to the a ctual docume nts disclosed.” In re United M ine W orkers , 159 F.R.D. at 312. “Sever al fa ctors figure into the a naly sis: whether disclosure was intentional or inadver

tent, the bre adth of the w aiver soug ht, and the extent to which the re quested documents would re veal litigation strateg ies or trial pre parations.” Goodrich , 593 F. Supp. 2d at 192 (interna l citations omit ted). In this case, the disc losures purpor tedly g iving r ise to a wa iver we re ma de pursua nt to Fe dera l Rule of Criminal Procedure 16, which re quires the g overnme nt to provide to the defe ndant in a cr iminal procee ding, upon r equest, a ny item that is material to his defense or that the g overnme nt intends to use in its case -in-chie f at trial. See F E D . R. C R I M . P. 16(e). Thus, the handwr itten notes that were produce d by the g overnme nt during the For bes prose cution wer e disclosed bec ause the y

wer e mater ial to Forbe s’s ca se. The f act that some ha

ndwritten notes by

10SEC enforce ment staff w ere materia l to Forbe s’s ca se, howe ver, doe s not mean that all such

handwr itten notes involve the same subjec t matter. Indeed, the fac t that only some handwr itten notes wer e disclosed to F orbes indicates that other ha ndwritten notes cr eate d duringthe SEC’s investigation involved other subject matter that would not be mater ial to Forbe s’s defe nse or prosec ution. Base d on this li mited disclosure to For bes’s attorney s (Will iams & Connolly L L P), Plaintiff seeks a w aiver

extending to all handwr itten notes made by the SEC reg arding

meeting s with Corigliano a

nd Kea rney and their c ounsel, reg ardle ss of the subject matter of those notes; this could result in the disclosure of a ny aspec t of the SEC’s investiga tion and reve al the SEC’s litigation strategy . Findinga wa iver in this context would be inconsistent with t he policies behind the attorne y

work produc t privileg e. Cf. Rockwell Int’l Corp. v. U.S. De p’t of Justice , 235 F.3d 598, 606 ( D.C. Cir. 2001) (discussing case s in which disclosure of work produc t material was “ nece ssary

to protect the a dversa

ry sy stem”). To the extent that P laintiff claims the SEC has waived its privileg e about a specific document that wa s disclosed, such a disc losure re nders Plaintiff’s FOIA re quest for that document moot. See Crooke r v. U.S. De p’t of State , 628 F.2d 9, 10 (D.C. Cir. 1980) (“ Once the re cords a re pr oduced the substance of the controve rsy

disappea rs and bec omes moot since the disclosure which the suit seeks ha s alrea dy been ma de.”) Moreove r, the disclosure s on which Plaintiff’s wa iver a rgument is premised we re ma de duringa cr iminal prosecution broug ht by the Depa rtment of Just ice, not by

the SEC. The distinction i s critical. In Martin v. Departme nt of Justice , 488 F.3d 446 ( D.C. Cir. 2007), the D.C. Circuit held that the Fe dera l Deposit Insuranc e Corporation did not waive its work product privileg e over

a docume nt that it provided to the Depa rtment of Just ice, whic h then disclosed it to another pa

rty in liti g ation. Id. at 456. The Court found that “[s] uch produc tion of privileg ed

11information ca nnot be a wa iver of the privileg e.” Id. Acc ording ly , the Court finds that the disclosure of c erta in handwritten notes by the Depa rtment of Just ice dur ing the For bes prosec ution did not waive the SEC’s work produc t privileg e with re spect to the doc uments it claims are exempt under Exempti on 5. There fore , the Court shall awa rd summary

judgme nt to the SEC with respect to these rec ords. Rather than e nd the ana ly sis here, how ever , the Court 4 shall also examine the SEC’s claim that these re cords a re c overe d by

the deliber ative proc ess privileg e. 2. Deliber ative Proce ss Privil eg e The SEC relies on the de liberative pr ocess pr ivilege with respec t to 99 of the 103 rec ords challeng ed by

Plaintiff. Ex emption 5 shields from the mandator y disclosure re quirements of the FOIA the deliber ative proc ess that pre cede s most decisions of g overnme nt ag encie s. Russell v. Dep’ t of the Air Force , 682 F.2d 1045, 1047 ( D.C. Cir. 1982). The e x emption protects not only communications that are deliberative in nature, but a ll communications which, if re veale d, would expose to publi c view the deliberative proce ss of an a g ency . Id at 1048. Thre e policy

purposes constitute the bases f

or this privileg e: (1) to e ncoura g e open, f rank discussions on matters of policy betwee n subordinates a

nd superiors; (2) to protect a g ainst prematur e disclosure of proposed policies be fore they are finally

adopted; and ( 3) to protec t ag ainst the public confusion that might re sult from disclosure of r easons a nd rationale s that were not in fact ultimately the g rounds for a

n ag ency ’s ac tion. See Coastal States Gas Corp. v. Dep’ t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). F or the privileg e to apply under Exemption 5, the material must be both Although the Court has an oblig ation to addre ss issues of seg reg ability sua sponte , “[i] f 4 a docume nt is fully

protec ted as wor

k product, then se g reg ability is not required.” Judicial W atch, Inc . v. De

p’t of Justice , 432 F.3d 366, 371 ( D.C. Cir. 2005). 12prede cisional and de liberative. W olfe v. De p’t of Health &Human Serv s. , 839 F.2d 768, 774 (D.C. Cir. 1988). The e x emption “cove rs re commendations, dra ft documents, proposa ls, sug g estions, and other subjec tive documents which r efle ct the per sonal opinions of the writer rathe r than the policy

of the a g ency ,” Coastal St ates , 617 F.2d at 866, as well as doc uments that ref lect deliber ations comprising the proc ess by which g overnme nt policy is formulated, Mead Data , 566 F.2d at 256. Plaintiff contends that the doc uments are issue are mere ly “notes of c onversations” with no listed recipients, sug g esting that there is nothing deliber ative about these documents. To the extent that these documents contain mer ely fac tual materia l such as stateme nts made by Corigliano or

Kea rney , they do not fall within the deliberative proce ss privileg e. In re Se aled Case , 121 F.3d 729, 737 ( D.C. Cir. 1997) (per curiam) (“T he deliber ative proc ess privileg e does not . . . protect mate rial that is purely fac tual, unless the mater ial is so inex tricably intertwined with the deliberative sections of doc uments that its dis closure w ould inevitably reve al the g overnme nt’s deliberations.”) The f act that suc h statements may be prote cted a s work produc t does not place them within the protection of the de liberative pr ocess pr ivilege ; the two privileg es “ar e not coter

minous in t heir swe ep.” Judicial W atch, Inc . v. De

p’t of Justice , 432 F.3d 366, 372 (D.C. Cir. 2005). Howe ver, a ccor ding to the de clar ation of David Frohlich, the se handwritten notes also contain the me ntal impressions of SEC enforc ement staff , including the ir

rec ommendations and thoug hts conce rningthe SEC’s investigation. See Fr ohlich Dec l. ¶¶ 7-8. Thus, these doc uments do ref lect opinions by

ag ency staff that are prede cisional and de liberative in nature. The fac t that there a re no r ecipients listed on the Vaughn index does not render the m non-deliber ative; the cour ts have he ld that a document may be deliber ative eve n it is not

13circ ulated to other e mploy ees. See, e .g. , Judicial W atch of Fla., Inc. v . U.S. Dep’ t of Justice , 102 F. Supp. 2d 6, 14-15 (D .D.C. 2000). Acc ording ly , the Court finds that deliberative materia l contained in the ha ndwritten notes falls within the deliberative proce ss privileg e and is e x empt from disclosure under 5 U .S.C. § 552(b)( 5). Howe ver, the privileg e does not c over f actua l material c ontained in those notes unless it is i nextricably

intertwined with deliber ative notes. Thus, the SEC’s withholding of deliberative materia l in these handwr itten notes may alterna tively be justified under

the deliberative proce ss privileg e enc ompassed in FO I A Exempti on 5. B. Rec ords W

ithheld Pursuant to FOIA Exe mption 6 Plaintiff challeng es the SEC’s invocation of Exemption 6 in wit hholding one document listed on the Vaughn index (number 84). Plaintiff initially objected to a

second doc ument (number 254) in its Opposit ion, but the SEC s ubsequently produce d a re dacte d version re moving any persona l information. See Def .’s Reply , Ex . A (12/11/09 L etter) . Plaintiff has not challeng ed any

of the SEC’s reda ctions in this action, and Plaintiff did not attempt to respond to the SEC’s argument in its R eply that Plaintiff’s objection to document 254 is now moot. Acc ording ly , the Court finds that Plaintiff’s objection with respe ct to document 254 is moot. Wit h respe ct to document 84, the SEC relies on both Exemption 6 and Ex emption 7(C). Plaintiff did not challeng e the SEC’s invocation of Exemption 7(C) with respec t to this document, and there fore the Court may

treat this arg ument as conc eded. See H opkins v. W

omen’ s Div., Ge n. Bd. of Global Ministr ies , 284 F. Supp. 2d 15, 25 (D.D .C. 2003), aff’d , 98 F. App’ x 8 (D.C. Cir. 2004) (“ I t is well understood in this C ircuit that when a plaintiff files an opposition to a dispositi ve motion and addr esses only cer tain arguments raised by

the def endant, a court may

14treat those arguments that the plaintiff fa iled to addre ss as conc eded.” ) Howe ver, the Court shall

also consider

whether the SEC’s invocation of Exemption 6 was proper. Ex emption 6 protects information about individuals i n “per sonnel and medic al files and simil ar f iles the disclosure of

which would constitute a c lear ly unwar rante d invasion of per sonal privac y .” 5 U.S.C. § 522(b)(6) . The ter m “similar files” is construe d broadly and is “intende d to

cover detailed Gove rnment re cords on a n individual which can be identified as a pplying to that individual.” U.S. Dep’ t of State v. W ash. Post Co. , 456 U.S. 595, 602 (1982) (c itation omit ted). “The threshold is fairly

minimal, such that all information which applies to a pa rticular individual is covered by

Ex emption 6, reg ardle ss of the ty pe of f ile in which it is contained.” Conception v. FBI

, 606 F. Supp. 2d 14, 35 (D.D .C. 2009) (citations and inter nal quotation marks omitted). I n consideringwhether an ag ency

has prope rly

invoked Exempti on 6, courts must balanc e the pr ivacy

interest in nondisclosure a g ainst the public interest in the re lease of the information. Lepelletier v. FD IC , 164 F.3d 37, 46 ( D.C. Cir. 1999) “Ultimately , an ag ency ’s justification for invoking a F OIA exemption is sufficie nt if it appear s logic al or plausible.” Larson v. Dep’t of State , 565 F.3d 857, 862 ( D.C. Cir. 2009) (citation omitted). The SEC’s Vaughn index describes docume nt 84 as a two-pa g e “[s]ettl ement proposa l submitt ed to the SEC” by counsel for

Mr. Corig liano “[c]ontaining conf idential, detailed financ ial information per

taining to the Corig liano family .” Ac cordingto the decla ration of Marg are t Celia Wi nter, the SEC’s F OIA and Privac y Act Of fice r, this document contains confide ntial and detailed pe rsonal and f inancial infor

mation pertainingto Mr. Corigliano, his wife, his minor childre n, and his pare nts. See Def .’s Mot. for Summ. J ., Dec l. of Marg are t Celia Wint er ¶ 15. Mr. Corig liano was re quired to provide this information to the SEC in order to

15rea ch a budg et ag ree ment with the SEC as to how much money he and his fa

mily could spend while the SEC’s litigation was pe nding, a s well as for purposes of f

acilitating settlement. Id. Acc ordingto Ms. W inter, the SEC only withheld documents to the extent nece ssary to protect the privac y interests of Mr. Corig liano and his family , and the a g ency disclosed any

seg reg able nonexempt information that could be disclosed. Id. ¶¶ 16, 18. Plaintiff does not dispute that the financ ial information containe d in document 84 may be withheld pursuant to Exempti on 6. Howeve r, Plaintiff argues that the a g ency should have seg reg ated the f

inancial infor

mation from the docume nt and produc ed the none x empt information in the document. See Pl.’s Opp’n at 13. “I f a r ecor d contains information that is exempt from disclosure, any rea sonably

seg reg able infor

mation must be relea sed af ter de leting the exempt portions, unless the non-exempt portions are inext rica bly intertwined with exempt portions.” Conception , 606 F. Supp. 2d at 44 (c iting 5 U.S.C. § 552(b). An a g ency ’s af fidavits must show with “rea sonable spec ificity ” why the documents c annot be f urther se g reg ated. Armstrong v. Exe c. Off. of the President , 97 F.3d 575, 578 ( D.C. Cir. 1996). Plaintiff argues that Ms. Wi nter’s state ment in her de clar ation that all rea sonably seg reg able none x empt information was disclosed is too conc lusory to show that the information in document 84 c ould not be further seg reg ated. The Court ag ree s. Although it is cer tainly plausible that a two-pa g e settlement proposal base d on persona l financia l information may be mea ningle ss with the personal information re dacte d (as the SEC ar gues in its briefs), the de clar ations provided by the ag ency

do not show with reasona

ble spec ificity

that the nonexempt information in document 84 is inext rica bly intertwined with exempt portions. According ly , the Court shall deny the SEC’s

16motion for summary judgme nt without prejudice a s to document 84. The Court shall orde r the 5 SEC to either produce document 84 in re dacte d form or f ile a re newe d motion for summary judgme nt with a decla

ration explaining why

the nonexempt information cannot be se g reg ated. IV. CONCLUSION For the fore g oing r easons, the Court sha ll GRANT-I N-PART and DEN Y-I

N-PART WI THOUT PREJ UDI CE Defe ndant U.S. Securities and E x chang e Commissi on’s [21] Motion for Summary

J udg ment. Def

endant’ s motion shall be gr anted e x cept with re spect to the seg reg ability

of docume nt number 84 on the a g ency ’s Vaughn index. An appropriate O rder

acc ompanies this Memorandum Opinion.

Date: August 4, 2010 /s/ COL L EEN KOL L AR-KOTELL Y United States District J udg e

The Court has a

n obliga tion to address segreg ability with respec t to both Ex emption 6 5 and Exemption 7(C). Pl aintiff’s c oncession that Exemption 7(C) applies does not provide a n alternative basis for summary judgme nt with respec t to this document, since the lack of a sufficie nt expl ication as to seg reg ability would apply

to either e x emption. 17