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 th e Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, with D efendant, the Securities an d Exchange Commission (“SEC”), seeking documents relat ed to the formation of a real e state investment trust. After the SEC failed to produce any responsive documents, Edelman filed t his FOIA action, Dkt. 1, and, in turn, the SEC released over 2,000 pa ges of responsive records. The SEC then moved for summary judgment, arguing that it had “conducted a reasonable s earch for documents responsive to [Edelman’s] FOIA requests” a nd had “withh[eld] only informat ion that was . . . protected by FOIA exemptions.” Dkt. 15 at 2. Edelman cross-moved for summa ry judgment, asserting that the SEC’s search for records was inadequate and that the SEC im properly withheld certain records. See Dkt. 16. On March 24, 2016, the Court issu ed 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 Edelm an’s “[C]onsumer [C]omplaints” FOIA request, Edelman I, 1722 F. Supp. 3d at 156, and (2) to “sear ch the 113 pages” of attorn ey 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 orde rs, it had produced mo re than a thousand additional pages of “unredacted or partiall y redacted” responsive document s to Edelman. Dkt. 26 at 2. Edelman, in turn, renewed his cros s-motion for summary judgment , Dkt. 28, asserting that the SEC did “not conduct an adequate s earch for additional document s pertaining” to his FOIA request for “consumer complaint s,” and did not “adequately just if[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 mot ion, and will deny Edelman’s renewed motion.
I. BACKGROUND As discussed at greater length i n 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 informa tion to investors and the public r egarding 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 wi th and issued by the SEC, which was required to approve the creat ion of the trust, known as the Empire State Realty Trust, Inc., or ESRT for short.” Id. “This action arises out of six F OIA requests that Edelman sub mitted to the SEC in order to obtain documents about its review of the propos ed transaction.” Id. As relevant to the motions curre ntly before the Court, Edelman submitted a “FOIA request to the SEC on January 15, 2014,” seeking “[c]onsumer co mplaints.” Id. at 140; see also3 Dkt. 26-1 at 1–2 (Second L ivornese 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 “alle ged 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, re ports, emails or any other accoun ts from th[o]se interviews’ and ‘all emails to and from the . . . SEC law yers where those complaints and interviews [we]re discussed.’” Id. (first alteration in origina l) (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 “note s from SEC meetings” and fr om “calls between the SEC and investors” created by the thr ee SEC lawyers, asserting that , because the notes were for the attorneys’ “personal use and convenience,” they “were not subje ct to FOIA.” Id. at 138–39; see also id. at 147. Having made this produc tion, the SEC then moved for s ummary judgment. Dkt.
15. In his initial opposition and cross-motion for summary judgmen t, Edelman challenged the adequacy of the SEC’s production of records responsive to his C onsumer Complaints request. Dkt. 16. He argued that “the SEC construed his request too nar rowly by searching only for documents about consumer complaints, rather tha n for the complaints themselves ” and that “the

1 The Court’s earlier decision inter changeably refers to this r equest as “Request No. 14-03452” (the “processing number” assigned by the SEC to Edelman’s reque st), 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 no tes 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 res tricted the scope of Edelman’s FOIA request, and it thus “direct[ed] [the SEC to] conduct an additional search in respon se to [Edelman’s Consumer Complaints] request, on the unde rstanding that . . . the reques t 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 categor ically exempt from FOIA,” and i t ordered “the SEC to search the 11[2] pages” 2 of previously identif ied attorney notes; t o “file a supplement al Vaughn index responsive to the cons iderations set out i n” the Court’s opinio n; and to produce any responsive pages to Edelman, subject to any a ppropriate 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 pag es of consumer complaint documents that were unredacte d or partially redacted, and [one] page that was redacted in full,”
id. at 2. In addition, the SEC asserts that it “gathered and revi ewed the 112 pages of attorney notes” and “produced [seventy- one] pages of attorney notes to E delman, which were unredacted or partially redacted, and withhe ld [forty-one] pages of attorn ey 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 docum ent] to the Court for an in camera review” and has, additionally, provided Edelman w ith a “partially-redacted versi on” of that same document, withholding only the “names of t wo [SEC] staff members under FO IA Exemption 6.” Id. As a

2 As the SEC points out in its ren ewed motion for summary judgm ent, its “previous filings with the Court . . . mistakenly state d that there were 113 pages of attorney notes” when, actually, “there were only 112 such pages of attorney notes.” Dkt. 26 at2 n.1.5 result, the SEC asserts that it has complied in full with the C ourt’s prior ruling, and now renews its motion for summary judgme nt. Dkt. 26. Edelman disagrees a nd renews his cross-motion for summary judgment, arguing that the SEC’s search was inadequate and that its red actions are not appropriate under Exemptions 5 and 6. Dkt. 28-1.
II. ANALYSIS In its renewed motion for summa ry judgment, the SEC asserts tha t its most recent search for and production of responsive doc uments has now remedied the deficiencies identified in the Court’s first summary j udgment decision and order. See Dkt. 26. In his opposition and renewed cross-motion, however, Edelman cha llenges 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 uncove r several responsive documents , Dkt. 28-1 at 2–4; second, he argues that the SEC has not prope rly invoked the deliberative p rocess privilege pursuant to Exemption 5, id. at 4–5; and, third, he claims tha t the SEC has failed to estab lish that it properly “with[e]ld[] the identities of those making complaints to it ab out 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 instruc ted the SEC to “conduct

3 In its prior decision, the Cour t “order[ed] the SEC to produc e an unredacted version” of “Document 1”—an “internal mem o 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 judgme nt asserts that it complied wi th this instruction and that, on further review, it has now deci ded to provide Edelman with a ve rsion of that document that discloses “the information [th e Commission had] previously with held under Exemption 5.” Dkt. 26 at 2. This version of Document 1 withhol ds only the “names of two [SE C] 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 w ithholding appears justifie d under Exemption 6.6 [an] additional . . . search for any records . . . responsive t o Edelman’s [Consumer Complaints] request” and to “release any reco rds that it dete rmine[d] [we]r e responsive” to that request. Dkt. 25 at 1–2. This task fell to the S EC’s Office of Freedom of In formation Act Services, which is supervised by John Livornese. D kt. 26-1 at 1 (Second Livornese Decl. ¶ 1). According to Livornese, he “determined that a ny [responsive] ‘consumer compl aints’ would be located in the databases maintained by staff i n the SEC’s Division of Corporat ion Finance (‘CF ’),” and he was informed by CF staff that “any a nd all records of communication s the CF staff received from any outside source that commente d upon, ‘complained’ about, or crit icized any aspect of . . . the proposed ESRT transaction were uploaded, by CF staff, to the Sh arepoint database.” Id. at 2 (Second Livornese Decl. ¶ 4). Li vornese further attests that t he “Sharepoint database allows a staff member to create a site on the server, store sensitive in formation at that site[,] and grant access to that information [to] ot her staff or staff teams with in the SEC.” Id. A search of the Sharepoint database, accordi ng to Livornese, located “1,447 pag es of documents . . . that reflected [the] external consum er complaints” requested by Edel man, of which 1,446 pages were produced in unredacted or pa rtially 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 su bmitted declarations stating that they have “reviewed the c onsumer 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 th e Sharepoint database, the SEC failed to search for responsive doc uments in the “paper files” or email records of the SEC staff members “who worked on the trans action.” Dkt. 28-1 at 3. Botharguments are unavailing.7 As to the first, the mere fact t hat Edelman has located complai nants who assert that they made complaints that do not appe ar 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 do es not alone render a search inadequate.” Iturralde v. Comptroller of Currency , 315 F.3d 311, 315 (D.C. Cir. 2003). “After all, particular d ocuments may have been accidentally lost or destroyed, or a reasonable a nd thorough search may have missed them.” Id. But, more importantly, it is f ar from clear that the SEC’s pr oduction omits responsive records. In response to the eight declarations subm itted in support of Edelman’s opposition and cross-motion, the SEC asked a paralegal in its O ffice of General Counsel to review unredacted copies of all of the consumer complaints thatthe SEC released to Edelman in response to his FOIA request. D kt. 30-1 at 1 (Barss Decl. ¶ 3) . According to the SEC’s paralegal, she “found [written] complaints about the ESRT trans action by many of the individuals who provide d” the declarations. Id. Of equal significance, moreover, the SEC notes that most of the eight declara tions 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 tha t some of the complaints were made orally, Dkt. 32 at 2. That distinction would appear to exp lain any discrepancy between the SEC’s recent production of the
written complaints—which is what the C ourt ordered—and the declarants’ recollections. And, indeed, the SEC paralegal report s that she “foun d references to communications from and about
allof the” declarants. Dkt. 30-1 at 1 (Barss Decl. ¶ 3) (emphasi s added). To the extent that some of the declarants made oral complaints, any records pertai ning to those complaints—the notes taken during telephone int erviews and emails describing i nterviews between SEC staff members and oral complainants—we re (subject to other exemptions ) already produced after a8 search that this Court has previ ously determined was “reasonabl e 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—a lso fails. Livornese asserts i n 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 commente d upon, ‘complained’ about, or cri ticized any aspect of, the disclosure or activi ties by solicitation part icipants related t o the proposed ESRT transaction were uploaded, by CF staff, to the Sha repoint 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, w ent beyond the Sharepoint databa se and searched the emails of the three CF attorneys who were responsible for reviewing the E SRT filings, but found no written complaints from any of the eight declarants that had no t previously been produced to Edelman. Dkt. 30-1 at 1–2 (Bar ss 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 ever y record system” in response to a FOIA request; it is only obligated to “us[e] methods whic h 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 expect ed to produce the documents Edelman requested. The Court, accordingly, conclude s that the SEC conducted an ade quate search for the consumer “complaints themselve s,” 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 “delibe rative” material from portions of the attorney notes and c onsumer complaints it produ ced to him. He makes two arguments. First, Edelman contends that the Court should rejec t the SEC’s reliance on the deliberative-process privilege because the Commission “failed t o identify the actual deliberative process . . . it [wa]s attempti ng to protect.” Dkt 28-1 at 4. Second, he argues that the SEC improperly withheld “factual ma terial” and “comments made by SE C 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 releva nt decisions the SEC staff were deliberating over for each withhol ding and that it withheld onl y exempt material. Dkt. 30 at 5–7. Once again, the SEC’s position is convincing. Exemption 5 shields from disclo sure “inter-agency or intra-agen cy memorandums or letters that would not be availab le by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). T he “deliberative process priv ilege is one of the litigation privileges incorporated into E xemption 5,” allowing “an agency to withhold ‘all papers which reflect the agency’s group thi nking in the process of working o ut 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 ‘predecisiona l’ and ‘deliberative,’ meaning they reflect advisory opinions, recommendations, and deliberati ons 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 a gency policy and ‘deliberative’ if it10 reflects the give-and -take of the consultative process.”). Whe re records reflect such predecisional deliberations, the privilege “protects agencies f rom being ‘force d to operate in a fishbowl.’” Elec. Frontier Found. , 739 F.3d at 4 (quotation marks omitted). The SEC argues that it prope rly 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 descri bed 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 t he redacted material could have been properly withheld on the basis of Exemption 5, but instea d argues that the SEC’s Vaughn index lacks sufficient detail to support the invocati on of the privilege, see Dkt. 32 at 3–4 (asserting that the Vaughn index “only discuss[es] a type of action t he documents were part of, not [t he] role [they] played within a policy formulation process” or how “ the documents themselves we re involved” in the “actual deliberations”). The Court has already rejected an earlier ver sion 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 predecisi onal deliberations about the handling of a complaint by an inve stor about ESRT” and “predeci sional deliberations of the handling of financial issues ra ised by investors concerning ESR T filings,” see, e.g. , Dkt. 30-3 at 29, 33, clearly describe the decisi ons that were the subject of ongoing deliberations. And, although the Vaughn index frequently uses the less el aborate phrase “notes reflect ing

4 In response to Edelman’s argument that its supplemental Vaughn index “fail[ed] to describe what [deliberative] processes th e withheld documents pertain[ed ] to,” Dkt. 28-1 at 5, the SEC filed an updated supplemental Vaughn index, Dkt. 30-3, indicating the s pecific “decisions staff members were deliberating,” Dkt. 30 at 5 & 5–6 n.2. Accordingl y, the Court will assess the completeness of the SEC’s updated Vaughn index in determining whether it properly applied Exemption 5.11 predecisional deliberatio ns about ESRT’s filing,” see, e.g. , id. at 25, 26, when considered in context, this notation leaves li ttle doubt that the deliberatio ns 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 [docume nt] was antecedent” because, as the supplemental Vaughn index states, the documents wer e produced “in anticipation of the SEC’s determination about whether to allow the ESRT transactionto proceed.” Id. at 160. Greater detail is not necessary t o facilitate judicial review o r 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 docum ent[s]” and suggests that “many of the withholdings are not actua l deliberations but comments m ade by SEC staffers about the complainants themselves” that might “cause embarrassment” to th e SEC. Dkt. 28-1 at 5. But he offers no support for these contentions, and Livornese’s declar ation directly refutes them, asserting that, “[p]ursuant t o 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). Th e Livornese declaration, moreover, goes on to offer additi onal detail about each of the Exemption 5 redactions currently at issue. Id. at 3–5 (Second Livornese Decl. ¶ 8 ). “Agency affidavits—so lo ng as they are relatively detailed and non-conclu sory—are accor ded a presumpti on 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 L ivornese declaration meets thi s standard, and Edelman has offered no reason—beyond unsupported speculation—to question Li vornese’s testimony.12 The Court, accordingly, conclude s that the SEC properly withhel d portions of the consumer complaints and attorne y notes on the basis of the deli berative 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 clea rly 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 ‘s imilar files’ broadly to include any ‘[g]overnment records on an i ndividual which can be identif ied 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 ar gues, 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 wo uld not otherwise be “able to contest.” Dkt. 33 at 1. The “decision to grant or deny leave to file a sur[-]replyis 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 part y 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). Her e, the SEC has plainly dem onstrated that it was not previously able to address the “ foreseeable harm analysis” argu ment which was made for the first time in Edelman’s reply brief, and, accordingly, the Cour t 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 co rrect that the FOIA Improvement Act of 2016 (“the Act”) has no bear ing on the Court’s analysis. See Dkt. 33-1 at 1–2. The Act, signed into law on June 30, 2016, includes an “applicability” s ection declaring that it “shall take effect on the date of enactme nt . . . and shall apply to any re quest 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 issu e here in January of 2014, see Dkt. 15-3 at 5 (Ex. 2), more than t wo years before the Act wentinto 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 explaine d 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 persona l, identifying information, howe ver, is not enough to invoke Exemption 6; in addition, the inf ormation must be “of such a na ture that its disclosure would constitute a clearly unwa rranted 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 pr ivate interest involved (namelythe individual’s right of privacy) against the public interest (n amely, 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 t his analysis, the [C]ourtis 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 withhe ld the personal identifying info rmation of “members of the public who contacted the SEC” to l odge complaints “during the E SRT review” process in order to shield those complainants fr om “being harassed or ridiculed by any person they may” have criticized in their compla ints. Dkt. 26 at 10–11. According to the SEC, releasing this information “would not shed light on how the government operate s,” and, thus, the complainants’ privacy interes t necessarily outweighs the public interest. Id. at 11. For his part, Edelman acknowledges that the thi rd-party complainants “do have a privacy interest in their identities and certain iden tifying information,” but he argues that their privacy interest is not particularly strong because the complaints are commercial in na ture and because several of the14 complainants have, in fact, agree d to the disclosure of their i dentities. Dkt. 28-1 at 6–7. Against this backdrop, he contends that the SEC failed properly to bala nce the complainants’ privacy interests against the public’s r ight to know “[w]ho communicate d to the government” and whether “the government took those [communications] into consid eration” before making any decisions regarding the ESRT transaction. Id. at 7. The Court agrees t hat the SEC has not correctly performed the requi red balancing and, accordingly, wi ll deny the SEC’s motion for summary judgment on this ground. Bu t, because Exemption 6 impl icates the interests of third parties, and because both the factual record and briefing on th is issue are incomplete, the Court will not grant Edelman’s c ross-motion at this time. The SEC hinges its argument on the mistaken premise that publi cly releasing the names of the complainants “would not shed light on how the government operates.” Dkt. 26 at 11. That conclusion ignores the “publ ic interest in knowing who maybe exerting influence on [SEC] officials sufficient to convin ce 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 a rriving at different conclusions). It ignores the public interest in knowing whethe r 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 publ ic interest in understanding whether particular complaints, which were credite d or rejected by the SEC, were based on personal knowledge, financi al interests, or other fact ors. On the other side of the balan ce, Edelman argues that the rec ords at issue “concern a commercial transaction,” as oppos ed to “a personal issue,” and thus do not implicate a particularly strong privacy int erest. Dkt. 28-1 at 7. In supp ort of that proposition, Edelman cites a decision from this Court, Washington Post Co. v. United States Department of Agriculture , 94315 F. Supp. 31, 34–36 (D.D.C. 1996), and a decision from the distr ict 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 pre cedents bearing on t his issue. In a case much like this one, t he D.C. Circuit rejected relianc e by the Commodity Futures Trading Commission (“CFTC”) on Exem ption 6 as a basis for withh olding 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 p rincipally 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 “inf ormation regarding marital stat us, legitimacy of children, identity of fathers of children, medical conditions, welfare payments, a lcoholic consumption, family fights and reputation.” Id . at 399 (quotation marks and alt eration omitted). Because the complaints at issue involved “pur ely commercial matters,” the D .C. Circuit held that the FOIA request did not seek “similar f iles” within the meaning of Exem ption 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 “in formation 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, evenif the names at issue were considered “similar files” would “the p rivacy interests asserted by the [CFTC] outweigh the public interes t in complete disclosure,” an d the Court held that it would not. 627 F.2d at 400. The only interest that the CFTC identif ied in support of withholding the16 information was the possibility t hat the Board of Trade might h arass the complainants, but the D.C. Circuit concluded that the CFTC had other tools “to preven t any improper conduct on the part of Board representatives.” Id. There is no reason to believe thatthis 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 infor mation that relates to commercial activity is not cate gorically beyond the reach of Ex emption 6, but that the Court must engage in a case-specific we ighing of the interests at stake and that it is likely, as Edelman suggests, that the names of commenters on commercial matters im plicate 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] on ly with the understanding that the SEC would try to keep their c omments and complaints confide ntial,” Dkt. 30-2 at 2 (Kluck Decl. ¶ 5), and that “release of information provided under a p ledge of confidentiality”—if such a pledge was made here—“involve s a greater in vasion 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 disclosu re] by the simple means of promi sing 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 Co urt cannot accept the SEC’s invitation to sustain its app lication of Exemption 6 to all ide ntifying 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 becau se the current record lacks s ufficient information for the Court to conduct the required balancing, and because the SEC (which mist akenly concluded that providing the complainants’ na mes “would not shed light on how the government operates,” Dkt. 26 at 11) should conduct the releva nt balancing in the first in stance, the Court will deny summary judgment at this time. 6 The parties are directed to meet and confer regarding this is sue and if, after applying the analys is set forth above to the rele vant facts, a dispute remains, the SEC may file a renewed motion for s ummary judgment addressing solel y this issue. Any such renewed motion shall provide a deta iled factual basis for the S EC’s conclusions and shall be supported by further legal analysis of the issues outlined abov e.

6 The Court also notes that, eve n though Edelman “underst[oo]d and expect[ed] the names of investors to be redacted to prot ect confidentiality” when he ma de his FOIA request, see 15-3 at 5 (Ex. 2), the SEC does not rely on thi s disclaimer to justify it s withholding of the complainants’ names. Nowhere in its Vaughn index does the SEC explain that itwithheld the complainants’ names “at Edelman’s request” or “consistent with Edelman’s FOIA request;” rather, the SEC justifies its withholdings w ith 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