UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

RICHARD EDELMAN, 

 Plaintiff, 

 v. 

SECURITIES AND EXCHANGE 

COMMISSION, 

 Defendant. 

 Civil Action No. 14-1140 (RDM) 

MEMORANDUM OPINION 

 In 2014, Plaintiff Richard Edelman filed six requests under the Freedom of Information 

Act (“FOIA”), 5 U.S.C. § 552, with Defendant, the Securities and Exchange Commission 

(“SEC”), seeking documents related to the formation of a real estate investment trust. After the 

SEC failed to produce any responsive documents, Edelman filed this FOIA action, Dkt. 1, and, in 

turn, the SEC released over 2,000 pages of responsive records. The SEC then moved for 

summary judgment, arguing that it had “conducted a reasonable search for documents responsive 

to [Edelman’s] FOIA requests” and had “withh[eld] only information that was . . . protected by 

FOIA exemptions.” Dkt. 15 at 2. Edelman cross-moved for summary judgment, asserting that 

the SEC’s search for records was inadequate and that the SEC improperly withheld certain 

records. See Dkt. 16. 

On March 24, 2016, the Court issued a decision, granting in part and denying in part both 

parties’ motions. Edelman v. SEC, 172 F. Supp. 3d 133 (D.D.C. 2016) (“Edelman I”). The 

Court identified two outstanding issues, see Dkt. 25 at 1–2, and ordered the SEC (1) to “conduct 

an additional search” as to Edelman’s “[C]onsumer [C]omplaints” FOIA request, Edelman I, 172 
2 

F. Supp. 3d at 156, and (2) to “search the 113 pages” of attorney notes identified as potentially 

responsive to that same FOIA request; to “produce [any] pages” not subject to an exemption; and 

to file “a supplemental Vaughn index,” id. at 154. The next month, the SEC filed a renewed 

motion for summary judgment, Dkt. 26, and a supplemental Vaughn index, Dkt. 26-2, asserting 

that, in compliance with the Court’s orders, it had produced more than a thousand additional 

pages of “unredacted or partially redacted” responsive documents to Edelman. Dkt. 26 at 2. 

Edelman, in turn, renewed his cross-motion for summary judgment, Dkt. 28, asserting that the 

SEC did “not conduct an adequate search for additional documents pertaining” to his FOIA 

request for “consumer complaints,” and did not “adequately justif[y] the withholding of certain 

information pursuant to FOIA Exemptions 5 and 6.” Dkt. 28-1 at 2. As explained below, the 

Court will grant in part and deny in part the SEC’s renewed motion, and will deny Edelman’s 

renewed motion. 

I. BACKGROUND 

As discussed at greater length in the Court’s prior opinion, see Edelman I, 172 F. Supp. 

3d at 138–41, “Edelman is a former investor in the Empire State Building,” and he “operate[s] a 

website that provides information to investors and the public regarding the contentious process 

of converting the ownership of the Empire State Building into a real estate investment trust.” Id.

at 138. On his website, Edelman “has posted documents filed with and issued by the SEC, which 

was required to approve the creation of the trust, known as the Empire State Realty Trust, Inc., or 

ESRT for short.” Id. “This action arises out of six FOIA requests that Edelman submitted to the 

SEC in order to obtain documents about its review of the proposed transaction.” Id. 

 As relevant to the motions currently before the Court, Edelman submitted a “FOIA 

request to the SEC on January 15, 2014,” seeking “[c]onsumer complaints.” Id. at 140; see also 
3 

Dkt. 26-1 at 1–2 (Second Livornese Decl. ¶ 3).1 In that request, Edelman “described a set of 

complaints submitted by Empire State Building investors to the SEC during its review of the 

proposed transaction,” and he “alleged that [three] SEC lawyers . . . interviewed the investors 

who had submitted the complaints.” Edelman I, 172 F. Supp. 3d at 140. In particular, the 

request sought “‘all notes, reports, emails or any other accounts from th[o]se interviews’ and ‘all 

emails to and from the . . . SEC lawyers where those complaints and interviews [we]re 

discussed.’” Id. (first alteration in original) (quoting Dkt. 15-3 at 5 (Ex. 2)); see also Dkt. 26-1 at 

2 (Second Livornese Decl. ¶ 3(a)–(b)). After pursuing the SEC’s internal FOIA appeals process 

without success, Edelman filed this action, and on September 30, 2014, the SEC “produced 

2,034 pages of records responsive to” this request and another of Edelman’s requests, “but 

withheld some material on the basis of FOIA Exemptions 5 and 6.” Edelman I, 172 F. Supp. 3d 

at 140. The SEC also withheld “notes from SEC meetings” and from “calls between the SEC 

and investors” created by the three SEC lawyers, asserting that, because the notes were for the 

attorneys’ “personal use and convenience,” they “were not subject to FOIA.” Id. at 138–39; see 

also id. at 147. Having made this production, the SEC then moved for summary judgment. Dkt. 

15. 

 In his initial opposition and cross-motion for summary judgment, Edelman challenged the 

adequacy of the SEC’s production of records responsive to his Consumer Complaints request. 

Dkt. 16. He argued that “the SEC construed his request too narrowly by searching only for 

documents about consumer complaints, rather than for the complaints themselves” and that “the 

 

1

 The Court’s earlier decision interchangeably refers to this request as “Request No. 14-03452” 

(the “processing number” assigned by the SEC to Edelman’s request), the “Consumer 

Complaints” request, and the “fourth FOIA request.” See, e.g., Edelman I, 172 F. Supp. 3d at 

140, 145, 147. For the purposes of this memorandum, the Court will refer to this FOIA request 

as Edelman’s “Consumer Complaints” request. 
4 

SEC erred in concluding that notes taken by SEC attorneys were not records subject to FOIA.” 

Edelman I, 172 F. Supp. 3d at 147. The Court agreed with Edelman on both counts. First, it 

concluded that the SEC unduly restricted the scope of Edelman’s FOIA request, and it thus 

“direct[ed] [the SEC to] conduct an additional search in response to [Edelman’s Consumer 

Complaints] request, on the understanding that . . . the request encompasse[d] not just documents 

about the complaints but the complaints themselves.” Id. at 156. Second, the Court held that the 

attorney notes were “not categorically exempt from FOIA,” and it ordered “the SEC to search the 

11[2] pages”2 of previously identified attorney notes; to “file a supplemental Vaughn index 

responsive to the considerations set out in” the Court’s opinion; and to produce any responsive 

pages to Edelman, subject to any appropriate FOIA exemptions. Id. at 154–55. 

 In response to the Court’s order, the SEC now represents that it has “searched its record 

systems for the complaints that were the subject of Edelman’s [Consumer Complaints] FOIA 

request,” Dkt. 26 at 12, and has “produced to Edelman 1,446 pages of consumer complaint 

documents that were unredacted or partially redacted, and [one] page that was redacted in full,” 

id. at 2. In addition, the SEC asserts that it “gathered and reviewed the 112 pages of attorney 

notes” and “produced [seventy-one] pages of attorney notes to Edelman, which were unredacted 

or partially redacted, and withheld [forty-one] pages of attorney notes in their entirety.” Id. 

Finally, the SEC explains that it has complied with the Court’s prior direction that it “produce[] 

an unredacted version of [one document] to the Court for an in camera review” and has, 

additionally, provided Edelman with a “partially-redacted version” of that same document, 

withholding only the “names of two [SEC] staff members under FOIA Exemption 6.” Id. As a 

 

2

 As the SEC points out in its renewed motion for summary judgment, its “previous filings with 

the Court . . . mistakenly stated that there were 113 pages of attorney notes” when, actually, 

“there were only 112 such pages of attorney notes.” Dkt. 26 at 2 n.1. 
5 

result, the SEC asserts that it has complied in full with the Court’s prior ruling, and now renews 

its motion for summary judgment. Dkt. 26. Edelman disagrees and renews his cross-motion for 

summary judgment, arguing that the SEC’s search was inadequate and that its redactions are not 

appropriate under Exemptions 5 and 6. Dkt. 28-1. 

II. ANALYSIS 

In its renewed motion for summary judgment, the SEC asserts that its most recent search 

for and production of responsive documents has now remedied the deficiencies identified in the 

Court’s first summary judgment decision and order. See Dkt. 26. In his opposition and renewed 

cross-motion, however, Edelman challenges three aspects of the SEC’s search and production: 

First, he alleges that the SEC’s search for consumer complaints was inadequate, as evidenced by 

the fact that it failed to uncover several responsive documents, Dkt. 28-1 at 2–4; second, he 

argues that the SEC has not properly invoked the deliberative process privilege pursuant to 

Exemption 5, id. at 4–5; and, third, he claims that the SEC has failed to establish that it properly 

“with[e]ld[] the identities of those making complaints to it about the proposed [ESRT] 

transaction” pursuant to Exemption 6, id. at 5–7. The Court will address each contention in 

turn.3

A. Adequacy of the SEC’s Search for Consumer Complaints 

In the order accompanying its prior decision, the Court instructed the SEC to “conduct 

 

3

 In its prior decision, the Court “order[ed] the SEC to produce an unredacted version” of 

“Document 1”—an “internal memo to file drafted by SEC attorneys regarding the [transaction] 

review process”—for “in camera review.” Edelman I, 172 F. Supp. 3d at 158–59. The SEC’s 

renewed motion for summary judgment asserts that it complied with this instruction and that, on 

further review, it has now decided to provide Edelman with a version of that document that 

discloses “the information [the Commission had] previously withheld under Exemption 5.” Dkt. 

26 at 2. This version of Document 1 withholds only the “names of two [SEC] staff members 

under FOIA Exemption 6.” Id. Edelman has not objected to that limited withholding, see 

generally Dkt. 28-1, and, in any event, the withholding appears justified under Exemption 6. 
6 

[an] additional . . . search for any records . . . responsive to Edelman’s [Consumer Complaints] 

request” and to “release any records that it determine[d] [we]re responsive” to that request. Dkt. 

25 at 1–2. This task fell to the SEC’s Office of Freedom of Information Act Services, which is 

supervised by John Livornese. Dkt. 26-1 at 1 (Second Livornese Decl. ¶ 1). According to 

Livornese, he “determined that any [responsive] ‘consumer complaints’ would be located in the 

databases maintained by staff in the SEC’s Division of Corporation Finance (‘CF’),” and he was 

informed by CF staff that “any and all records of communications the CF staff received from any 

outside source that commented upon, ‘complained’ about, or criticized any aspect of . . . the 

proposed ESRT transaction were uploaded, by CF staff, to the Sharepoint database.” Id. at 2 

(Second Livornese Decl. ¶ 4). Livornese further attests that the “Sharepoint database allows a 

staff member to create a site on the server, store sensitive information at that site[,] and grant 

access to that information [to] other staff or staff teams within the SEC.” Id. A search of the 

Sharepoint database, according to Livornese, located “1,447 pages of documents . . . that 

reflected [the] external consumer complaints” requested by Edelman, of which 1,446 pages were 

produced in unredacted or partially redacted form. Id. at 2–5 (Second Livornese Decl. ¶¶ 4–8). 

 Edelman contends that this search must have been “inadequate” because it failed to 

uncover consumer complaints from eight individuals, who have submitted declarations stating 

that they have “reviewed the consumer complaints sent to . . . Edelman” and “d[id] not see [their] 

complaint[s]” in the SEC’s production. See, e.g., Dkt. 28-2 at 2 (Gaskill Aff., Ex. A); Dkt. 28-1 

at 2–3. In addition, Edelman argues that, by searching only the Sharepoint database, the SEC 

failed to search for responsive documents in the “paper files” or email records of the SEC staff 

members “who worked on the transaction.” Dkt. 28-1 at 3. Both arguments are unavailing. 
7 

As to the first, the mere fact that Edelman has located complainants who assert that they 

made complaints that do not appear in the SEC’s production does not, on its own, cast doubt on 

the efficacy of the SEC’s search. It “is long settled that the failure of an agency to turn up one 

specific document in its search does not alone render a search inadequate.” Iturralde v. 

Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). “After all, particular documents 

may have been accidentally lost or destroyed, or a reasonable and thorough search may have 

missed them.” Id. But, more importantly, it is far from clear that the SEC’s production omits 

responsive records. In response to the eight declarations submitted in support of Edelman’s 

opposition and cross-motion, the SEC asked a paralegal in its Office of General Counsel to 

review unredacted copies of all of the consumer complaints that the SEC released to Edelman in 

response to his FOIA request. Dkt. 30-1 at 1 (Barss Decl. ¶ 3). According to the SEC’s 

paralegal, she “found [written] complaints about the ESRT transaction by many of the 

individuals who provided” the declarations. Id. Of equal significance, moreover, the SEC notes 

that most of the eight declarations do not indicate whether the declarants submitted written 

complaints or, instead, lodged oral objections with SEC staff, Dkt. 30 at 3, and Edelman appears 

to concede in his reply brief that some of the complaints were made orally, Dkt. 32 at 2. That 

distinction would appear to explain any discrepancy between the SEC’s recent production of the 

written complaints—which is what the Court ordered—and the declarants’ recollections. And, 

indeed, the SEC paralegal reports that she “found references to communications from and about 

all of the” declarants. Dkt. 30-1 at 1 (Barss Decl. ¶ 3) (emphasis added). To the extent that 

some of the declarants made oral complaints, any records pertaining to those complaints—the 

notes taken during telephone interviews and emails describing interviews between SEC staff 

members and oral complainants—were (subject to other exemptions) already produced after a 
8 

search that this Court has previously determined was “reasonable and adequate.” Edelman I, 172 

F. Supp. 3d at 156–57. 

 Edelman’s second argument—that the SEC failed to search the paper files and emails of 

CF staff members and attorneys—also fails. Livornese asserts in his declaration that he “was 

informed by CF staff that any and all records of communication the CF staff received from any 

outside sources that commented upon, ‘complained’ about, or criticized any aspect of, the 

disclosure or activities by solicitation participants related to the proposed ESRT transaction were 

uploaded, by CF staff, to the Sharepoint database.” Dkt. 26-1 at 2 (Second Livornese Decl. ¶ 4) 

(emphasis added). As a result, it was entirely reasonable for the SEC to focus its search on that 

database. The SEC, moreover, went beyond the Sharepoint database and searched the emails of 

the three CF attorneys who were responsible for reviewing the ESRT filings, but found no 

written complaints from any of the eight declarants that had not previously been produced to 

Edelman. Dkt. 30-1 at 1–2 (Barss Decl. ¶ 4). Although it is possible that responsive documents 

might have been found in the filing cabinets and email accounts of other CF personnel, the SEC 

is not required to “search every record system” in response to a FOIA request; it is only 

obligated to “us[e] methods which can be reasonably expected to produce the information 

requested.” Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Here, the SEC 

used exactly the search methods that would be reasonably expected to produce the documents 

Edelman requested. 

The Court, accordingly, concludes that the SEC conducted an adequate search for the 

consumer “complaints themselves,” as the Court directed in Edelman I. See 172 F. Supp. 3d at 

156 (emphasis removed). 
9 

B. Exemption 5 Withholdings 

Next, Edelman contends that the SEC improperly redacted “deliberative” material from 

portions of the attorney notes and consumer complaints it produced to him. He makes two 

arguments. First, Edelman contends that the Court should reject the SEC’s reliance on the 

deliberative-process privilege because the Commission “failed to identify the actual deliberative 

process . . . it [wa]s attempting to protect.” Dkt 28-1 at 4. Second, he argues that the SEC 

improperly withheld “factual material” and “comments made by SEC staffers” that were 

embarrassing but not deliberative. Id. at 5. The SEC responds that it provided a sufficiently 

detailed supplemental Vaughn index that describes the relevant decisions the SEC staff were

deliberating over for each withholding and that it withheld only exempt material. Dkt. 30 at 5–7. 

Once again, the SEC’s position is convincing. 

Exemption 5 shields from disclosure “inter-agency or intra-agency memorandums or 

letters that would not be available by law to a party other than an agency in litigation with the 

agency.” 5 U.S.C. § 552(b)(5). The “deliberative process privilege is one of the litigation 

privileges incorporated into Exemption 5,” allowing “an agency to withhold ‘all papers which 

reflect the agency’s group thinking in the process of working out its policy and determining what 

its law shall be.’” Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 4 (D.C. Cir. 2014)

(quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975)). The privilege is “limited to 

documents that are ‘predecisional’ and ‘deliberative,’ meaning they reflect advisory opinions, 

recommendations, and deliberations comprising part of a process by which governmental 

decisions and policies are formulated.” Id. at 7 (quotation marks and alteration omitted); see 

also Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006) (“[A] document [is] 

‘predicisional’ if it was generated before the adoption of an agency policy and ‘deliberative’ if it 
10 

reflects the give-and-take of the consultative process.”). Where records reflect such 

predecisional deliberations, the privilege “protects agencies from being ‘forced to operate in a 

fishbowl.’” Elec. Frontier Found., 739 F.3d at 4 (quotation marks omitted). 

 The SEC argues that it properly withheld portions of the attorney notes and consumer 

complaints that described internal SEC “deliberat[ions] [about] how to respond to the various 

issues raised in the ESRT filing” and that it adequately described those deliberations in the 

supplemental Vaughn index it provided to Edelman.4 Dkt. 26 at 3, 14. Edelman does not 

seriously dispute that some of the redacted material could have been properly withheld on the 

basis of Exemption 5, but instead argues that the SEC’s Vaughn index lacks sufficient detail to 

support the invocation of the privilege, see Dkt. 32 at 3–4 (asserting that the Vaughn index “only 

discuss[es] a type of action the documents were part of, not [the] role [they] played within a 

policy formulation process” or how “the documents themselves were involved” in the “actual 

deliberations”). The Court has already rejected an earlier version of this same argument, see 

Edelman I, 172 F. Supp. 3d at 160, and it does so once again. 

Notations in the SEC’s Vaughn index like “internal predecisional deliberations about the 

handling of a complaint by an investor about ESRT” and “predecisional deliberations of the 

handling of financial issues raised by investors concerning ESRT filings,” see, e.g., Dkt. 30-3 at 

29, 33, clearly describe the decisions that were the subject of ongoing deliberations. And, 

although the Vaughn index frequently uses the less elaborate phrase “notes reflecting 

 

4

 In response to Edelman’s argument that its supplemental Vaughn index “fail[ed] to describe 

what [deliberative] processes the withheld documents pertain[ed] to,” Dkt. 28-1 at 5, the SEC 

filed an updated supplemental Vaughn index, Dkt. 30-3, indicating the specific “decisions staff 

members were deliberating,” Dkt. 30 at 5 & 5–6 n.2. Accordingly, the Court will assess the 

completeness of the SEC’s updated Vaughn index in determining whether it properly applied 

Exemption 5. 
11 

predecisional deliberations about ESRT’s filing,” see, e.g., id. at 25, 26, when considered in 

context, this notation leaves little doubt that the deliberations were focused on whether to 

“approve the creation of the [ESRT] trust,” Edelman I, 172 F. Supp. 3d at 138. Although 

Edelman seeks greater detail, the Court has already explained that there is “no basis to require 

the SEC to specify the decisions to which each specific [document] was antecedent” because, as 

the supplemental Vaughn index states, the documents were produced “in anticipation of the 

SEC’s determination about whether to allow the ESRT transaction to proceed.” Id. at 160. 

Greater detail is not necessary to facilitate judicial review or to promote any other purpose 

embodied in FOIA. 

Edelman’s additional arguments fare no better. He accuses the SEC of failing to 

segregate factual material from “otherwise pre-decisional document[s]” and suggests that “many 

of the withholdings are not actual deliberations but comments made by SEC staffers about the 

complainants themselves” that might “cause embarrassment” to the SEC. Dkt. 28-1 at 5. But he 

offers no support for these contentions, and Livornese’s declaration directly refutes them, 

asserting that, “[p]ursuant to Exemption 5, [the SEC’s] FOIA Office redacted certain predecisional and deliberative information,” withholding “only information that was exempt.” Dkt. 

26-1 at 3 (Second Livornese Decl. ¶¶ 7-8) (emphasis added). The Livornese declaration, 

moreover, goes on to offer additional detail about each of the Exemption 5 redactions currently 

at issue. Id. at 3–5 (Second Livornese Decl. ¶ 8). “Agency affidavits—so long as they are 

relatively detailed and non-conclusory—are accorded a presumption of good faith, which cannot 

be rebutted by purely speculative claims.” Mobley v. CIA, 806 F.3d 568, 581 (D.C. Cir. 2015) 

(quotation marks omitted). The Livornese declaration meets this standard, and Edelman has 

offered no reason—beyond unsupported speculation—to question Livornese’s testimony. 
12 

The Court, accordingly, concludes that the SEC properly withheld portions of the 

consumer complaints and attorney notes on the basis of the deliberative process privilege.5

C. Exemption 6 Withholdings 

Finally, Edelman challenges the SEC’s decision to withhold “the identities of those 

making complaints to it about the proposed [ESRT] transaction” pursuant to Exemption 6. Dkt. 

28-1 at 5. “Exemption 6 protects information about individuals in ‘personnel and medical files 

and similar files’ when its disclosure ‘would constitute a clearly unwarranted invasion of 

personal privacy.’” Shapiro v. U.S. Dep’t of Justice, 153 F. Supp. 3d 253, 257 (D.D.C. 2016) 

(quoting 5 U.S.C. § 552(b)(6)). “The Supreme Court has read ‘similar files’ broadly to include 

any ‘[g]overnment records on an individual which can be identified as applying to that 

individual,’” People for the Am. Way. Found. v. Nat’l Park Serv., 503 F. Supp. 2d 284, 303 

 

5

 In his reply brief, Edelman argues, for the first time, that “the SEC fail[ed] to establish that it 

conducted a foreseeable harm analysis on [the records redacted under Exemption 5] as now 

required by the FOIA Improvement Act of 2016.” Dkt. 32 at 4. The SEC seeks leave to file a 

sur-reply so that it can address this “new argument” that it would not otherwise be “able to 

contest.” Dkt. 33 at 1. 

 The “decision to grant or deny leave to file a sur[-]reply is committed to the sound discretion 

of the court,” Akers v. Beal Bank, 760 F. Supp. 2d 1, 3 (D.D.C. 2011), and “court[s] routinely 

grant[] such motions when a party is unable to contest matters presented to the court for the first 

time in the last scheduled pleading,” Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir. 

2003) (quotation marks omitted). Here, the SEC has plainly demonstrated that it was not 

previously able to address the “foreseeable harm analysis” argument which was made for the 

first time in Edelman’s reply brief, and, accordingly, the Court will grant the SEC’s motion for 

leave to file a sur-reply. See Dkt. 33. 

 Turning to the merits of Edelman’s argument, the SEC is correct that the FOIA Improvement 

Act of 2016 (“the Act”) has no bearing on the Court’s analysis. See Dkt. 33-1 at 1–2. The Act, 

signed into law on June 30, 2016, includes an “applicability” section declaring that it “shall take 

effect on the date of enactment . . . and shall apply to any request for records . . . made after the 

date of enactment.” FOIA Improvement Act of 2016, Pub. L. No. 114-185, § 6, 130 Stat. 538 

(2016) (emphasis added). Edelman made the FOIA request at issue here in January of 2014, see 

Dkt. 15-3 at 5 (Ex. 2), more than two years before the Act went into effect. 
13 

(D.D.C. 2007) (quoting U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 601–02 (1982)), 

and the D.C. Circuit has explained that the exemption can sweep in “bits of personal information, 

such as names and addresses,” Judicial Watch, 449 F.3d at 152. The mere fact that an agency 

file or record contains personal, identifying information, however, is not enough to invoke 

Exemption 6; in addition, the information must be “of such a nature that its disclosure would 

constitute a clearly unwarranted privacy invasion.” Nat’l Ass’n of Home Builders v. Norton, 309 

F.3d 26, 32 (D.C. Cir. 2002). To make that determination, “the Court [must] employ[] a 

balancing test, weighing ‘the private interest involved (namely the individual’s right of privacy) 

against the public interest (namely, the basic purpose of [FOIA], which is to open agency action 

to the light of public scrutiny).’” People for the Am. Way Found., 503 F. Supp. 2d at 304 

(quoting Judicial Watch, 449 F.3d at 153). “In undertaking this analysis, the [C]ourt is guided 

by the instruction that, under Exemption 6, the presumption in favor of disclosure is as strong as 

can be found anywhere in [FOIA].” Nat’l Ass’n of Home Builders, 309 F.3d at 32 (quotation 

marks omitted). 

 The SEC asserts that it withheld the personal identifying information of “members of the 

public who contacted the SEC” to lodge complaints “during the ESRT review” process in order 

to shield those complainants from “being harassed or ridiculed by any person they may” have 

criticized in their complaints. Dkt. 26 at 10–11. According to the SEC, releasing this 

information “would not shed light on how the government operates,” and, thus, the 

complainants’ privacy interest necessarily outweighs the public interest. Id. at 11. For his part, 

Edelman acknowledges that the third-party complainants “do have a privacy interest in their 

identities and certain identifying information,” but he argues that their privacy interest is not 

particularly strong because the complaints are commercial in nature and because several of the 
14 

complainants have, in fact, agreed to the disclosure of their identities. Dkt. 28-1 at 6–7. Against 

this backdrop, he contends that the SEC failed properly to balance the complainants’ privacy 

interests against the public’s right to know “[w]ho communicated to the government” and 

whether “the government took those [communications] into consideration” before making any 

decisions regarding the ESRT transaction. Id. at 7. The Court agrees that the SEC has not 

correctly performed the required balancing and, accordingly, will deny the SEC’s motion for 

summary judgment on this ground. But, because Exemption 6 implicates the interests of third 

parties, and because both the factual record and briefing on this issue are incomplete, the Court 

will not grant Edelman’s cross-motion at this time. 

 The SEC hinges its argument on the mistaken premise that publicly releasing the names 

of the complainants “would not shed light on how the government operates.” Dkt. 26 at 11. 

That conclusion ignores the “public interest in knowing who may be exerting influence on [SEC] 

officials sufficient to convince them to” approve or disapprove a transaction. People for the Am. 

Way Found., 503 F. Supp. 2d at 306; but see id. at 305–06 (collecting cases arriving at different 

conclusions). It ignores the public interest in knowing whether the SEC gives “greater weight to 

the comments submitted by” some complainants than others. Alliance for Wild Rockies v. Dep’t 

of Interior, 53 F. Supp. 2d 32, 37 (D.D.C. 1999). And it ignores the public interest in 

understanding whether particular complaints, which were credited or rejected by the SEC, were 

based on personal knowledge, financial interests, or other factors. 

 On the other side of the balance, Edelman argues that the records at issue “concern a 

commercial transaction,” as opposed to “a personal issue,” and thus do not implicate a 

particularly strong privacy interest. Dkt. 28-1 at 7. In support of that proposition, Edelman cites 

a decision from this Court, Washington Post Co. v. United States Department of Agriculture, 943 
15 

F. Supp. 31, 34–36 (D.D.C. 1996), and a decision from the district court in Oregon, Oregon 

Natural Desert Association v. United States Department of the Interior, 24 F. Supp. 2d 1088, 

1089 (D. Or. 1998). Neither Edelman nor the SEC, however, cite to or discuss a number of D.C. 

Circuit and Supreme Court precedents bearing on this issue. 

In a case much like this one, the D.C. Circuit rejected reliance by the Commodity Futures 

Trading Commission (“CFTC”) on Exemption 6 as a basis for withholding from the Chicago 

Board of Trade the names of those who had submitted complaints to the CFTC. See Bd. of Trade 

v. Commodity Futures Trading Comm’n, 627 F.2d 392, 399–400 (D.C. Cir. 1980) (“Board of 

Trade”). In reaching that conclusion, the Court of Appeals relied principally on the premise that 

the reference to “similar files” in Exemption 6 applies only to files that reveal “intimate details” 

of a person’s life, such as “information regarding marital status, legitimacy of children, identity 

of fathers of children, medical conditions, welfare payments, alcoholic consumption, family 

fights and reputation.” Id. at 399 (quotation marks and alteration omitted). Because the

complaints at issue involved “purely commercial matters,” the D.C. Circuit held that the FOIA 

request did not seek “similar files” within the meaning of Exemption 6. Id. at 400. Two years 

later, however, the Supreme Court rejected that narrow reading of “similar files” and held that 

“similar files” include all “information which applies to a particular individual.” U.S. Dep’t of 

State v. Wash. Post Co., 456 U.S. 595, 620 (1982). That portion of the Board of Trade holding, 

accordingly, is no longer controlling. 

The Board of Trade Court, however, went on to consider the question whether, even if 

the names at issue were considered “similar files” would “the privacy interests asserted by the 

[CFTC] outweigh the public interest in complete disclosure,” and the Court held that it would 

not. 627 F.2d at 400. The only interest that the CFTC identified in support of withholding the 
16 

information was the possibility that the Board of Trade might harass the complainants, but the 

D.C. Circuit concluded that the CFTC had other tools “to prevent any improper conduct on the 

part of Board representatives.” Id. There is no reason to believe that this alternative holding did

not survive the Supreme Court’s decision in the Washington Post case, and, indeed, the D.C. 

Circuit cited Board of Trade with approval four months after the Supreme Court’s decision for 

the proposition that the disclosure of “employment information . . . would be only a minimal 

invasion of privacy.” Wash. Post Co. v. U.S. Dep’t of Health and Human Servs., 690 F.2d 252, 

261 (D.C. Cir. 1982). 

The Court takes from this line of precedent that personal information that relates to 

commercial activity is not categorically beyond the reach of Exemption 6, but that the Court 

must engage in a case-specific weighing of the interests at stake and that it is likely, as Edelman 

suggests, that the names of commenters on commercial matters implicate less weighty privacy 

interests than the type of information that lies at the core of Exemption 6. The Court is aware 

that “a number of [complainants] communicated with [the SEC] only with the understanding that 

the SEC would try to keep their comments and complaints confidential,” Dkt. 30-2 at 2 (Kluck 

Decl. ¶ 5), and that “release of information provided under a pledge of confidentiality”—if such 

a pledge was made here—“involves a greater invasion of privacy than release of information 

provided without such a pledge,” Wash. Post. Co., 690 F.2d at 263. But that, also, is not 

dispositive. Rather, as the D.C. Circuit has observed, “allow[ing] the government to make 

documents exempt [from disclosure] by the simple means of promising confidentiality would 

subvert FOIA’s disclosure mandate.” Id. And finally, as Edelman observes, it appears that at 

least some of the complainants have no objection to disclosure of their identities. 
17 

Given the fact-intensive nature of the required inquiry, the Court cannot accept the SEC’s 

invitation to sustain its application of Exemption 6 to all identifying information about all of the 

complainants. This is not to say, however, that the SEC cannot make a sufficient showing that 

the identities of some of the complainants implicate privacy interests that outweigh the public 

interest in disclosure. But because the current record lacks sufficient information for the Court to 

conduct the required balancing, and because the SEC (which mistakenly concluded that 

providing the complainants’ names “would not shed light on how the government operates,” Dkt. 

26 at 11) should conduct the relevant balancing in the first instance, the Court will deny 

summary judgment at this time.6

 The parties are directed to meet and confer regarding this issue 

and if, after applying the analysis set forth above to the relevant facts, a dispute remains, the SEC 

may file a renewed motion for summary judgment addressing solely this issue. Any such 

renewed motion shall provide a detailed factual basis for the SEC’s conclusions and shall be 

supported by further legal analysis of the issues outlined above. 

 

6

 The Court also notes that, even though Edelman “underst[oo]d and expect[ed] the names of 

investors to be redacted to protect confidentiality” when he made his FOIA request, see 15-3 at 5 

(Ex. 2), the SEC does not rely on this disclaimer to justify its withholding of the complainants’ 

names. Nowhere in its Vaughn index does the SEC explain that it withheld the complainants’ 

names “at Edelman’s request” or “consistent with Edelman’s FOIA request;” rather, the SEC 

justifies its withholdings with a reference to Exemption 6. 
18 

CONCLUSION 

For these reasons, the Court will GRANT in part and DENY in part the SEC’s renewed 

motion for summary judgment, Dkt. 26, will DENY Edelman’s renewed motion for summary 

judgment, Dkt. 28, and will GRANT the SEC’s motion to file a sur-reply, Dkt. 33. 

A separate Order will issue. 

 /s/ Randolph D. Moss 

 RANDOLPH D. MOSS 

 United States District Judge 

Date: March 6, 2017