* The Honorable Jane A. Rest ani, Chief Judge of the United

States Court of International Trade, sitting by designation. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2005 (Argued June 22, 2006 Decided September 11, 2006) Errata Filed: November 16, 2006) Docket Nos. 05–6162–cv(L)& 05-6628-cv(XAP)

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Inner City Press/Community on the Move, Plaintiff–Appellant , Cross-Appellee , v. Board of Governors of the Federal Reserve System, Defendant–Appellee , Cross-Appellant .

---------------------------------------------------- Before: MINER and CALABRESI, Circuit Judges , and RESTANI, * Judge .

Plaintiff-Appellant appeals from a judgment of the United States District Court for the Southern District of New York (Denise Cote, Judge ) granting summary judgment in part in favor of Defendant, the court having denied Plaintiff’s requestfor information under the Freedom of Information Act. DefendantAppellee cross appeals the district court’s finding that Plaintiff met its burden of production showing that the information at issue was in the public domain.

Affirmed in part, remanded in part. JILLIAN M. CUTLER (David C. Vladeck, on the brief ), Georgetown1 ICP is a nonprofit organization engaged in advocacy on issues

affecting low income consumers and communities. Among the issues of concern to ICP is subprime lending, lending at high interest rates to people with high credit risk. Appellant’s Br. 5. 2 University Law Center, Washington, D.C., for Plaintiff-AppellantCross-Appellee . YVONNE F. MIZUSAWA (Richard M. Ashton & Katherine H. Wheatley, on the brief ), Board of Governors of the Federal Reserve System, Washington, D.C., forDefendants–Appellee-CrossAppellant . Restani, Judge :

This appeal concerns a request to the Board of Governors of the Federal Reserve System (“ Boa rd”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. §§ 552–552b (2000 & West Supp. 2006), for informati on con tained in a bank merger application by Wachovia Corporation (“Wachovia”) and SouthTrust Corporation (“SouthTrust”). Inner City Press/Community on the Move (“ICP”) appeals from a judgment of the District Court for the Southern District of New York finding that the names of Wachovia’s subprimelending clients listed in an exhibit to the merger application qualifiedas confidential commercial information wh ic h is not subject to disclosure under Exemption 4 to F OIA , 5 U.S.C. § 552(b)(4). 1 The Board cross-appeals from the judgment that the public domain exception to Exemption 4 applies to part of the withheld information. The Board argues that ICP did not meet its burden of production showing the likelihood that part of the2 The Bank Holding Com pany A ct (“BHCA”) requires the Board to

approve bank mergers and certain ownersh ip t ransactions prior to their occurrence. 12 U.S.C. § 1842(a) (2000). 3 withheldinformation would be in the public domain so that the Boardwas required to do a limited search to verify that fact. We agree with the district court that Exemption 4 applies to the information sought, but we do not agree that ICP has met its burden of pr oduction so that it would be appropriate to place a searc h burden upon the Board. BACKGROUND

On July 9, 2004, Wachovia and SouthT rust submitted a merger application to the Board. 2 Prior to filing the application, Wachovia contacted t he B oard inquiring whether it should include information about its relationships with subprime lenders. The Boardre plie d that such information is helpful if public commentators question an applicant’s relationships with subprime len ders. Therefore, Wachovia included information about it s relationships with subprime lenders and requested confidential treatment of the information. Among the materials included was an exhibit labeled “Confidential Exhibit 3: Discussion of Activities Relating to Sub-Prime Lending” (“Exhibit 3”). The Board describes the contents of Exhibit 3 as follows: (i) the names of nine of Wachovia’s commercial customers that make and/or purchase subprime residential mortgage loans; (ii) the specific amo unts and some terms of Wachovia’s credit facilities to these customers; (iii) descriptions of other banking services Wachovia provides3 The court also held that Exemption 4 did not apply to

categories (iv) and (v). The parties do not challenge this ruling. 4 to, or other r elat ionships with, these customers; (iv) financial data on Wachovia’s exposure and loan outstandings to commercial customers who engage in subprime lendi ng ; and (v) details regarding the due diligence Wachovia performs in evaluating particular lenders’ requests for credit facilities. Inner City Press/Cmty. on the Move v. Bd. of Governors of the Fed. Reserve Sys. , 380 F. Supp. 2d 211, 214 (S.D.N.Y. 2005).

On July 19, 2004, ICP subm itteda FOIA request to the Boardseeking release of the merger application and related documents. In response, the Board released parts of the application but withheld ce rtai n documents, including Exhibit 3, explain ing that the withheld materials were not subject to disclosure under Exemption 4 to FOIA because they contained “commercial or financial information obtained from a person and privilegedor confidential.” 5 U.S.C. § 552(b)(4 ). ICP se nt a letter to the Board appealing its decision and the Board deniedthe request on the same grounds.

On October 21, 2004, ICP filed suit in dis trict court seeking release of only Exhibit 3. The parties filed cross-motions for summary judgment. The district court found that the information containedin categories (i), (ii), and (iii) of Exhibit 3, as indicated above, was “commercial or financial information obtainedfrom a person and privileged or confidential” for purposes of Exemption 4. 3 Inner City Press , 380 F. Supp. 2d at 21 5, 218 .4 While category (i) is the pri ncipal target of ICP’s appeal

regarding information classified as confidential under Exemption 4, ICP also asks that we uphold the district court’s order that th e Board release any information that is already publicly available, even from the otherwise confidential information in categories (ii) 5 The district court also acknowledged that Exemption 4 did not apply to information that was already in the public domain. Id. at 221. The court found that ICP had met its burden of production showing that specific information in the public domain appears to duplicate that being withheld. The district court concluded that ICP had met its burden by: (1) sho wing that Exhibit 3 contained information that Wachovia acted as a market maker or underwriter to some of its subprime-lending clients who issued securities for public sale; and (2) pointing to registration forms containing similar information filedwith the Securities and Exchange Commission (“SEC”) by companies that issue securities for public sale. Id. The district court then required the Board to conduct a limitedsear ch of SEC filings for the subprime lenders listed in Exhibit 3 to verify if information was in the public domain that Wachovia was an underwriter for, and provided credit, funding or oth er f inancial services to any of the len ders. Id. The court ruled that the Boardmust release the information to the extent that it was publicly available. Id.

ICP limits its present appeal to the district court’s decisi on p ertaining to category (i), the names of Wachovia’s customers that engage in subprime lending. 4 ICP argues thatand (iii) containing the terms and amounts of their loans as well

as descriptions of their other banking services with Wachovia. 6 Exemption 4 does not apply to the names contained in Exhibit 3. The Board cross-appeals, arguing that ICP did not meet its burden of production. The Board also argues that the information that may be in the public domain is not subject to disclosure because it is not “freely available” under U.S. Dep’t of Justice v. Rep ort ers Committee for Freedom of the Press , 489 U.S. 749, 764 (1989). DISCUSSION We revie w FOIAexemption claims de novo . See A. Mich ael’s Piano, Inc. v. Fed. Trade Comm’n , 18 F.3d 138, 143 ( 2 d Cir. 1994).

FOIAw as enacted in 1966 “to improve publi c access t o information held by public agencies.” Pierce & Stevens Chem. Corp.

v. U.S. Consumer Prod. Safety Comm’n , 585 F.2d 1382, 1384 (2d Cir. 1978). “There is no doubt that the basic purpose of the FOIA is a general philosophy of full agency disclosure.” Id. (citation and quotation omitted). The statute accomplishes this in several ways, providing that some types of agency information “must be published in the Federal Register; some must be made available for public inspection and copying; and other reasonably describedrecords are obtainable on request to an agency.” Id.

The statute also exempts nine categories of information fromdisclosure. 5 U.S.C. § 552(b)(1)–(9). Because of the policy7

favoring disclosure, however, the nine ex emp tions “do[] not authorize withholding of information or limit the availability of records to the public, except as specifically stated.” Pierce , 585 F.2dat 1384 (citation and quotation marks omitted). Thus, the exemptions are “given a narrow compass.” U.S. Dep’t of Justice v. Tax Analysts , 492 U.S. 136, 151 (1989).

At issue here is Exemption 4. For Exemption 4 to apply, “(1) [t]he information . . . must b e a ‘trade secret’ or ‘commercial or financial’ in ch ara cter . . . ;(2) . . . must be ‘obtained from a person,’ . . . and (3) . . . must be ‘privileged or confidential.’” Nadler v. FDIC , 92 F.3d 93, 95 (2d Cir. 1996) (quoting 5 U.S.C. § 552(b)(4)) (edits omitted). ICP does not contest tha t the information here, the names of the subprime lenders listed in Exhibit 3, is commercial or financial in nature andthat it was obtained from Wachovia, a person within the meaning of FOIA. See 5 U.S.C. § 551(2) (defining a person as “an individual, partnership, corporation, association, or public or private organization other than an agency”). The issue is whether the information sought is “confidential.”

To determine whether information is confidential for the purposes of Exemption 4, this Circuit has adopted a two-part test formulatedby the District of Columbia Circuit in National Parks & Conservation Ass’n v. Morton , 498 F.2d 765, 770 (D.C. Cir. 1974). See Nadler , 92 F.3d at 95; Cont’l Stock Transfer & Trust Co. v.8

SEC , 566 F.2d 373, 375 (2d Cir. 1977) (per curiam). The test states that information is confidential for the purposes of Exemption 4 if its disclosure would have the effect either: “(1) of impairing the government’s ability to obtain information – necessaryinformation – in the future, or (2) of causing substantial harm to th e competitive position of the person from whomthe information was obtained.” Cont’l Stock , 566 F.2d at 375 (adopting the National Parks test).

Although confidential commercial information is not subject to disclosure under Exemption 4, the exemption d oes not apply if identical information is otherwise in the public domain. Niagara Mohawk Power Corp. v. U.S. Dep’t of Energy , 169 F.3d 16, 19 (D.C. Cir. 1999) (discussing Exemption 4); Davis v. U.S. Dep’t of Justice , 968 F.2d 1276, 1279 (D.C. Cir. 1992) (discussing Exemption 3 and 7); Cont’l Stock , 566 F.2d at 375 (discussing Exemption 4). The rationale behind the public domai n doct rine is clear: “if identical information is truly public, then enforcement of an exemption cannot fulfill its purposes.” Niagara , 169 F.3d at 19. The Supreme Court has limited th e p ublic domain exception to information that is “freely available.” Reporters Comm. , 489 U.S. at 764. While the government retains the burden of persuas i on that information is not subject to disclosure under FOIA, “a party who asserts that material is publicly available carries the burden5 Contraryto ICP’s c o ntentions, the allocation of burdens

remains the same in Exemption 4 cases as in other pub lic domain cases involving different FOIA exemptions. Niagara , 169 F.3d at 19 (discussing Exemption 4 and stating that the burden of production rests upon the party favoring disclosure). Likew ise , the cases discussing the application of public domain doctrine to other FOIA exemptions are applicable here. Id. (citing to other public domain cases and the exemptions discussed therein). 9 of production on that issue.” 5 Davis , 968 F.2d at 1279. The burden of production is placed upon the party who asserts that material is publicly available because “[i]t is far more efficient, andobviously fairer.” Occidental Petroleum Corp. v. SEC , 873 F.2d 325, 342 (D.C. Cir. 1989). To hold otherwise would requi re th e opponent of disclosure to prove a negative, “that the information has nowhere been published. ” Id. That is, the opponent of disclosure would have to “identify all of the public sources in which the information contained in its documents is not reproduced.” Id. ; Niagara , 169 F.3d at 19; Davis , 968 F.2d at 1279 (“[T]he task of proving the negative – that information has not been revealed – might require the gov ernment to undertake an exhaustive, potentially limitless search.”).

We first add ress the parties’ arguments concerning the “impairment” prong of the National Parks test, and then we address the parties’ arguments concerning the public availability of part of the information sought. I. Impairment of the government’s ability to obtain information in the future As the District of Columbia Circuit explained, disclosure6 The District of Columbia Circuit has revised the impairment

prong of the National Parks test to further differentiate between voluntarilysubmitted information and information submitted mandatorily. Critical Mass Energy P roje ct v. Nuclear Regulatory Comm’n , 975 F.2d 871, 878–79 (D .C. Cir. 1 992) (en banc). Under Critical Mass , information voluntarily provided to the government is not examined under the “impairment” or “substantial competitive harm” prong of the National Parks test but is to be withheld from disclosure under Exemption 4 if it “wou ld customarily not be releasedto the public by the person f rom w hom it was obtained.” Id. at 879. In contrast, mandatory submissions are withheld from disclosure under Exemption 4 according to the traditional National Parks test. Id. at 872. We have not previously adopted the Critical Mass amendment to the National Parks test . Nadler , 92 F.3dat 96 n.1. The parties here do not argue for its adoption and the district court did not apply it in its decision. We decline to adopt nostra sponte the Critical Mass test . 10 of confidential business information will impair the ability of the government to obtain i nfor mation in the future because “[u]nless persons having necessary information can be assure d that it will remain confidential, they may decline to cooperate with officials.” Nat’l Parks , 498 F.2d at 767. Exemp tio n 4 thus protects the government’s ability to obtain information by “encouraging cooperation by those who are not obliged to provide information to the government.” Id. at 769. If a person is compelled to submit information, however, “there is presumably no da nger that public disclosure will impair the ability of the Government to obtain th[e] information in the future.” 6 Id. at 770.

In the present case, the district court determined that the Board’s ability to obtain information in the future would be impairedby the disclosure of the names of the subprime lenders listedin Exhibit 3. Key to the district court’s determination was7 The extent of the Board’s authority to demand information

fromWachovia is unclear. As previously stated, the BHCA provides the Board with authority to approve bank mergers and certain other ownership transactions. 12 U.S. C. § 1842. The Community Reinvestment Act (“CRA”), id. §§ 2901–2908, further directs the Boardto “encourage [financial institutions] to help meet the credit needs of the local communities,” id. § 2901(b), in part by “assess[ing] the institution’s record of meeting the credit needs of its entire community, i ncl uding low- and moderate-income neighborhoods, consistent with the safe andsound operation of such institution,” id. § 2903(a)(1). Neither of these acts explicitly requires the Board to compel specific information such a s clie nt names from a financial institution.

Although the BHCA requires the Board to consider “the fina ncia l and managerial resources and future prospects of the company or companies and the banks concerned, and the convenience andneeds of the community to be served,” id. § 1842(c)(2), it does not require the Board to collect specif ic inf ormation such as client names from merger applicants. The CRA is a similarly “amorphous statute” that also does not set forth the specific types of information that the Board is to obtain. Lee v. Bd. of Governors of the Fed. Reserve Sys. , 118 F.3d 905, 913 (2d Cir. 1997). We have stated previously that “[a]ny attempt to glean subst ance from the CRA is met with the reality that the statute sets no standards for the evaluation of a bank’s contribution to the needs of its community.” Id. Hence, while the Board may request some information from 11 its fi nding that Wachovia voluntarily submitted the names to the Boardbecause the Board did not exercise any authority to compel the information. Because the district court foundthat Wachovia volu ntarilyrather than mandatorily submitted the names to the Board, the court did not find a presumption against impairment of the government’s ability to obtain information.

In the main, ICP argues that Wachovia did not voluntarily submit the information sought because the mere legal authority to compel the production of information at issue 7 i s s ufficient forWachovia and similar institutions under the BHCA andthe CRA, it is

unclear whether the Board is permitted to compel specific information such as client lists. We do not, however, resolve whether the Board may compel such information because we hold that the government must have actually exercised any such leg a l authorityto compel information for the submiss ion of such information to be considered mandatory under National Parks .

8 We have not previ ous ly considered this precise issue. The District of Col umbia Circuit has held that the “actual legal authority” to request information governs the assessment of the character of submissions. Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin. , 244 F.3d 144, 149 (D.C. Cir. 2001). While we agree with the holding in Auto Safetythat submissions are deemedmandatory only if the agency has the actual legal authority to compel information, the holding does not resolve the i ssue before us because the court in Auto Safetydidnot consider whether legal authority, while necessary, is sufficient for a submission to be deemed mandatory. Id. Some distr ict courts have considered this issue. One court statedthat “[i]n addition to possessing the authority t o comp el submission, the agency must also exercise that authority in order for a submission to be deemed mandatory.” Parker v. Bureau of Land Mg mt. , 141 F. Supp. 2d 71, 78 n.6 (D.D.C. 2001). The cou rt als o notedthat “an agency may decline to require information that it has the authority to compel andins tead pursue voluntary compliance.” Id. In contrast, another district court stated tha t “ where compelledcooperation will obtain precisely the same results as voluntarycooperation, an impairment claim cannot be countenanced.” Teich v. FDA , 751 F. Supp . 243, 251 (D.D.C. 1990). The facts of Teich , however, distinguish it from the present case. First, it is unclear whether the information obtained in Teich was truly voluntarilysubmitted. Unlike the current case , in Teich , the FDA, pursuant to its informal powers, sent a letter requesting data from a silicone breast implant manufacturer. Id. at 250. The Board in thi s case did not make any requests for information but gave a n 12 that submission of information to be deemed mandatory. We reject ICP’s proposed standard.

Adoption of ICP’s suggested standard would result in an undesirable general presumption against impairment. 8 As previouslyinformational response to a telephone inquiry. Second, in Teich ,

the district court was admonishing the FDA for its failure to exercise authority to implement regulations to compel information andfor thi rteen years relying upon informal letters to seek information. Id. at 251. We do not have similar facts here. 13 discussed, if a submission is deemed mandatory, then there is a presumption against impairment of government function. See Nat’l Parks , 498 F.2d at 770. If the vast majority of submissions are deemedmandatory, which would seem to be the effective result of ICP’s suggested standard, then there would be an overwhelming presumption against impairment. This essentially undermines Exemption 4's goal of protecting the government’s ability to obtain information. Although FOIA exemptions are construednarrowly, ICP offers little reason for adopting such a broad rule.

ICP’s suggested standard also interferes with the gov ernment’s discretion as to how to obtain information. By reducing the protection for confidential business information, the prop osed standard deters holders of necessary information from voluntarilycooperating andcomplying with the government because, if they knew “that their information was s ubject to public disclosure, [they] wouldlikely submit the bare minimum required.” Inner City Press , 380 F. Supp. 2 d at 217 n.5 . ICP disputes this point, arguing that banks would not be deterred from disclosing the

names of their subprime lend ers be cause they have a strong incentive to provide the Board wit h all necessary information to ensure approval of their merger applications.9 Michael P. Rizer, Senior Vice President of Wa chovia,

illustrates the strength of this deterrent when he states that Wachovia “would not have provided the Board with the actual names of its sub-prime lending clients” if it be lie ved that the information would later become publicly available. Rizer Decl. ¶ 10. 14

ICP’s own brief, however, indicates that banks have a compet ing interest deterring them from disclosing the names of their subprime-lending clients to the Board if they were to become publ ic. ICP states that its investigations generate publicity about a financial institution’s relationships with subprime lenders, Appellant’s Br. 8, and that reputational harm may result fromthe disclosure of these relationships, id. at 11. ICP also states that the resulting negative publicity andreputational harm have caused some banks to discontinue business relations with subprime lenders. Id. Thus, it is apparent that banks, including Wachovia, have a financial interest in not releasing the names of their subprime-lending clients to the Board if such names are to become public. This det errent would likely counteract the incentive to complete the merger application process quickly by providing full disclosure to the Board and would result in more restrained disclosures to the Board. 9

Facedwith a bank’s reluctance to provide full disclosure, the Board would be forced to achieve its ends through assertion of its authority to compel information. Like the District of Columbia Circuit, we see no reason for interfering with15

the go vernment’s discretion as to how to exercise its regulatory authorityto collect necessaryinformation. See Critical Mass , 975 F.2dat 880 (“We know of no provision in FOIA that obliges agencies to ex ercise their regulatory authority in a manner that will maximize the amount of information that will be made available to the public through that Act. Nor do we see anyreason to interfere with the [agency’s] exercise of its own discretion in determining how it can best secure the information it needs.”). Accordingly,

we hold that an agency must bot h possess and exercise the legal authorityto obtain information for the resulting submission of information to be deemed“mandatory” under the National Parks test.

In the instan t case , the Board did not exercise any auth orityto compel information from Wachovia about i t s relationships with subprime lenders. Such information is not requestedin the mer ger application. Rather, the merger application requires applicants to provide information regarding: (1) the proposed transaction; (2) financial and managerial status of the applicant; and (3) the competition of the applicant and the convenience and needs of the community. J.A. 31–35. The application do es no t specifically request information about an applicant’s relationships with subprime lenders nor does it request a list of an applicant’s clients.

The Board also made no separate requests for information from Wachovia about its relationships with subprime lenders. The16

Boardinstead received such information f romWachovia after Wachovia telephoned the Board and was told that the information was useful if commentators questioned the relationships. Rizer Decl. ¶ 3; Baer Decl. ¶ 8. The Board’s response to the telephone inquiry appears to have been mer ely informative, alerting Wachovia about the preferred action in anticipation of questions regarding its relationships with subprime lenders. The district court correctly concludedthat the Board’s response to Wachovia was “too amorphous” to be considered a demand for the names of Wachovia’s subprimelending clients. In ner City Press , 380 F. Supp. 2d at 218. Therefore, we agree with the district court that the Board didnot compel Wachovia to submit the names of its subprime-lending clients. Accordingly, we affirm the district court’s ruling that the requested information is confidential under the “imp airment” prong of the National Parks test and that Exemption 4 to FOIA is applicable. Because the impairment prong of the National Parks test applies, we do not reach the “substantial competi tive h arm” prong of the test. II. Information in the public domain

As previously stated, the district court also ruled that the public domain exception to Exemption 4 applied to some of the information sought. The district court found that ICP s atisfied its burden of production by pointing to publicly available SEC17

forms that appeared to require part of the information being withheldin Exhibit 3. The court then required the Board to search the SEC filings to determine whether the information listed in Exhibit 3 was publicly available. Specifically, the district court ruled that: if the fact that Wachovia has providedcredit facilities to any of the clients listed in Exhibit 3 has already been disclosed to the public in SEC filings, andExhibit 3 itself indicates that underwriting services have been providedto one or more of the listed clients, such inf ormation in Exhibit 3 must likewise be disclosed t o the extent it is already public. Inner City Press , 380 F. Supp. 2d at 221 (footnote omitted).

The Board argues that the di str ict court erred in its ruling because ICP did not meet its bu rden of production. The Boardalso argues that even if ICP were to meet its burden of production, disclosure would still be unwarranted under Reporters Committee , 489 U.S. at 764. We agree with the Board that ICP did not meet its burden of p ro duction but we do not agree that disclosure necessarily would be barred under Reporters Committee . A. Burden of production

To satisfy the burden of production, the requesting party “must . . . point[] to specific information in t he pu blic domain that appears to duplicate that being withheld.” Afshar v. U.S. Dep’t of State , 702 F. 2d 1 125, 1130 (D.C. Cir. 1983); see also Cottone v. Reno , 193 F.3d 550, 555 (D.C. Cir. 1999) (holding that claimant met its burden of production by showing “the precise date10 Contraryto ICP’s arguments, it must show that information

is in the public domain that Wachovia provided credit, funding, or other financial services to its subprime-lending clients. First, the district court has held that such information is exempt from disclo sure. Inner City Press , 380 F. Supp. 2d at 218. ICP d oe s not contest this finding. Second, information about the provision of credit, funding, or other financial services is not segregable 18 andtime that the particular conversation was recorded and the unique identification number assigned to the tape”); Davis , 968 F.2dat 1280 (requiring the claimant show that there is a “p erm anent public record of the exact portions he wishes [to obtain]”) . A requesting party can fulfill this burden by pointing to a regul ati on that requires the disclosure of the specific information sought. See Niagara , 169 F.3d at 19–20 (allowing a citation to a regulation requiring the filing of a public form to meet the burden of production but holding that the burden was not fulfilled because the information required by the regulatory form

was projected data while the doc ument requested contained actual data). Thus, one way – and the way relevant to the instant case – for ICP to meet its burden of production, would be for it to show that the information publicly available th rough a regulation appears to duplicate the information being withheld in Exhibit 3.

In this case, Exhibit 3 contain s i nformation that Wachovia “will act as a market maker or underwriter with respect to securities issued by some of [its] clients [listed in Exhibit 3]” and that Wachovia provided “credit or funding facilities or other financing relationships” to these clients. 10 Rizer Decl. ¶ 5. ICPfrominformation that Wachovia acted as a principal underwriter to

its clients. Mr. Rizer’ s affidavit clearly states that Wachovia providedcredit, funding or other financial services to each of its clients. Rizer Decl. ¶ 5. Thus, to know the names of Wachovia’s subprime lending cli ent s is to know that Wachovia provided them with credit, lending, or other financial services. Because information that is “inextricably intertwined” with exempt information cannot be disclosed, Willamette Indus., Inc. v. United States ,689 F.2d 865, 867–68 (9th Cir. 1982) (quoting Mead Data Cent., Inc. v. U.S. Dep’t of Air Force , 566 F.2d 242, 260–61 (D.C. Cir. 1977)), ICP must also show that there is likely information in the public domain that Wachovia provided credit, funding, or other financial services to its subprime-lending clients in order for the public domain exception to apply.

11 SEC Form 424B5(b), also cited by ICP, does not require registrants to provide types of information different from that required by Form S-1. Form 424(b)(5) was promulgated pursuant to R ule 424, Regulation C of the Securities Act of 1933. Rule 424(b)(5), from which Form 424B5(b) stems, provides that a new prospectus must be filed with the SEC in certain circumstances. 17 C.F.R. § 230.424 (2006). In pertinent part, Form 424B5 requires the reporting only of a substantive change from, or addition to, the information contained in the last prospectus filed with the SEC or as pa rt of the registration statement. 17 C.F.R. § 230.424(b)(5) (referring to 17 C.F.R. § 230.424(b)(3)). 19 claims that this information is publicly available in SEC filings because the lenders who offered securities fo r p ublic sale were requiredto file registration statements wit h th e SEC containing the withheld information. ICP, however, fails to meet its burden of production because the SEC forms which it cites disclose information that is different from the information withh eld in Exhibit 3. In particular, we examine the information required to be disclosed by SEC Form S-1. 11

FormS-1 is a registration form that a company files with12 FormS-1 can be accessed at: www.sec.gov/about/forms/forms1.pdf (last visited Sept. 6, 2006).

13 The Securities Act of 1933 defines an underwriter as: any person who has purchased from an issuer with a view to, or offers or sells for an issuer in connection with, the distribution of any security, or participates or has a direct or indirect participat i on in any such 20 the SEC when it issues securities in an initial public offering. 12 Preliminarily, we note that the parties do not dispute that Form S1 will contain information on whether a registrant conducts subprime lending. Form S-1 requires registrants to describe their business pursuant to 17 C.F.R. § 229.101. See SEC Form S-1 at 4. Section 22 9.101 states that registrants must “[d]escribe the business done and intended to be done by the registant . . . focusing upon the registrant’s dominant segment or each reportable segment about which financial information is presented in the financial statements.” 17 C.F.R. § 229.101(c)(1). Thus, if a registrant engages in subpri me len ding, it would be reflected on Form S-1 pursuant to 17 C.F.R. § 229.101.

Form S-1 also requires registrants to “[f]urnish the information required by Item 5 08 of Regulation S-K ([17 C.F.R.] § 229.508 . . .).” SEC Form S-1 at 4. Section § 229.508(a) states that “[i]f the securities are to be offered through underwriters,

name the principal underwriters.” 17 C.F.R. § 229.508(a). Section 229.508(a) does not require the identity of all other underwriters. 13 Id. ; see also SEC, Division of Corporate Finance,undertaking, or participat es o r has a participation in

the direct or ind irect underwriting of any such undertaking . . . . 15 U.S.C. § 77b(a)(11) (2000). Not all underwriters, however, are “principal underwriters.” Principal und erwriters are typically the parties who “sign the firm-commitment underwriting agreement. These managers or principal underwriters in turn contac t oth er broker-dealers to become members of the underwriting group . . . .” Billing v. Cre dit Suisse First Boston, Ltd. , 426 F.3d 130, 138 n.4 (2d C ir . 2005) (citing 1 Thomas Lee Hazen, The Law of Securities Regulation § 2.1[2][B] (5th ed. 2005)). 21 Manual of Publicly Available Telephone Interpretations ¶ 62 (1997), at http://www.sec.gov/interps/telephone/cftelinterps_regs-k.pdf (last visited Sept. 6, 2006) (“Item 508(a) of Regulation S-K, which

ca lls for disclosure of the identify of ‘principal underwriters’ andtheir material relations hips with the registrant, does not require disclosure as to each member of the selling group, but is limited to those underwriters who are in privity of contract with the issuer with respect to the offering.”).

Finally, § 229.508(a) also requires registrants to “[i]dentifyeach [principal] underwriter having a material rel ationship with the registrant and state the nature of the relationship.” 17 C.F.R. § 229.508(a). A relationship is material if “there is ‘a substantial likelihood that the disclosure of the omitted[information] would have bee n viewed by the reasonable investor as having significantly altered the ‘total mix’ of informatio n ma de available.’” DeMaria v. Andersen , 318 F.3d 170,22

180 (2d Cir. 2003) (quoting TSC Indus., Inc. v. Northway, Inc. , 426 U.S. 438, 449 (1976)). In sum, SEC Form S-1 makes the following information publicly available: (1) the natu re o f a registrant’s business including information about subprime lending businesses; (2) the identity of the regi strant’s principal underwriters; and (3) the nature of the material relationships between the registrant and its principal underwriters.

Here, the information publicly available through FormS-1 has not been shown to be likely duplicative of the information being withheld in Exhibit 3. As discussed previously, Exhibit 3 cont ains the following information: (1) some of the subprime lenders listed in Exhibit 3 issued securities and thus filed a registration statement with the SEC; (2) Wachovia acted as a market maker or underwriter to some of its subprime-lending clients; and (3) Wachovia provided credit or funding facilities or other financing services to each of its subprime-lending clients. Rizer Decl. ¶ 5. Parts (2) and (3) of the wit hheld information do not appea r to correspond with the information publicly availab l e through Form S-1.

As to part (2), Form S-1 reveals the identity of a registrant’s principal underwriters, not general underwriters. ICP has not shown that Exhibit 3 contains information that Wachovia was a principal underwriter to some of its subprime-lending clients.

In regards to part (3), Form S-1 discloses the nature of23

m aterial relationships between a registrant and its principa l underwriters. It does not specifically request general information about credit, funding, or other financial relationships. ICP has fail edto address this issue directly. It has not argued that Wachovia’s p rov ision of credit, funding, or other financing services to its sub p rime-lending clients constitutes a material

re lation ship, or that the provision of credit, loan, or other financial services in similar sit ua tions likely constitutes a material relationship. Having failed to address this issue directlyand having failed to show that Wachovia acted as a principal underwriter to its subprime-lending clients, ICP has not met its burden of production.

Accordingly, we remand to the district court for ICP to have the opportunity to fulfill its burden of production. To fulfill its burden of production, ICP must demonstrate tha t the information sought from Exhibit 3 is likely duplicative of that in the SEC filings. To do that, in the context of this case, ICP must show that Wachovia was a principal underwriter to some of its subprime-lending clients. Additionally, ICP must address part (3) andshow that the credit, funding, or financing relationships involved here are likely material relationships . B. Reporters Committee

The Board also argues that even if ICP meets its burden of production showing that the information sought is likely to be24

in the public domain, the information is still not subject to disclosure under Reporters Committee . The Board argues that under Reporters Committee , if informat ion in the public domain is not “freelyavailable” becau se of the logistical difficulties in locating it, the information remains exempt from FOIA disclosure. Appellee’s Br. 55. Because it is quite possible that on remand ICP will meet its burden of production, we consider the Board’s argument in the interest of judicial economy. Having done so, we reject it. In Reporters Committee , the Supreme Court discussed whether a rap sheet co mpi ling a person’s criminal history is subject to disclosure because the events summarized in the rap sheet have been previously disclos ed to the public. 489 U.S. at 762–63. The Court stated that the issue was “whether the compilation of otherwise hard-to-obtain information alters the privacyinterest implicated by disclosure o f that information.” Id. a t 764. The Court noted that the individual records of criminal convict ions and arrests were found at various locations throughout the country. Id. at 753. The Court then distinguished between the “scattered discl osur e of the bits of information containedin a rap sheet and revelation of the rap sheet as a whole.” Id. at 764. The Court emphasiz ed that “there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local14 EDGARcan be accessed at http://www.sec.gov/edgar.shtml (last

visited Sept. 6, 2006).

15 As technology quickly changes, information becomes more readilyava ilable to the public and the difficulties noted in 25 police stations throughout the country and a computerized summary locatedin a single clearinghouse of information.” Id. Hence, the Court held that a rap sheet is not “freely available” and is not subject to disclosure. Id.

The publicly available information in this case, the SEC filings, differs from the criminal records in Reporters Committee . Rather tha n dealing with various government entities such as courthouses, county record departments, and local police stations,

a member of the public seeking securities filings need contact only

one government agency, the SEC. A person seekin g s ecurities filings also does not need to traverse the entire nation seeking records but can access the filings on-line free of charge via the SEC’s Electronic Data Gathering and Retrieval sy stem ( “EDGAR”). 14 Searches through SEC filings on EDGAR can be done in a number of ways, such as by using an issuer’s name or filing number. If the

name of the registrant is not known to the searcher, as in ICP’s situation, a sea rch through the text of the SEC filings can be done. EDGAR currently allows te xt searches through SEC filings submittedduring the past two years. Despite this current two-year limitation, the information in this case remains much more “freely available” than in Reporters Committee . 15Reporters Committee , for example, lessen significantly. The rapid

change in technology is evidencedher e by the fact that a text search of securities filings became available during the pendency of this matter. Appellee’s Br. 58 n.21.

16 In the circumstances of this case, the Board’s search would involve only a limited number of client names in one database. It remains possible that a more difficult search involving a very large number of names or widely scattered names would alter the 26 Securities filings also do not have the same p riva cy concerns as criminal records. While government agencies assemble

r ap sheets for their own use and limit their disclosure du e t o privacyconcerns, see id. at 764–6 5, the SEC collects securities filings and makes them available to the public. Moreover, the goal of securities filings themselves is to protect investors by requiring full disclosure of material information. Pinter v. Dahl , 486 U.S. 622, 638 n.14 (1988). Therefore, the ready availability of securities filings and the policy favoring disclosure of information found i n securities filings distinguishes this case from Reporters Committee .

Accordingly, assuming that ICP can meet its burden of production, we hold that it is not inconsistent with Reporters Committee to require the Board to search the SEC filings for the lenders listed in Exhibit 3 to determine whether information is in the public d oma in showing that Wachovia acted as a principal under wri ter and provided credit, funding or other financial services to the lenders, and to release such information to the extent that it is already public. 16concerns here. Because that is not the case before us, we take no

stand on such a situation. 27 CONCLUSION For the foregoing reasons, we conclude that Exemption 4 applies unless the w ithhel d information is in the public domain. We also hold that ICP did not fulfill its burden of production showing that the withheld information is lik ely in the public domain s uffici ently to place a limited search burden upon the Board. Accordingly, we AFFIRM the judgment of the district court in so far as it ruled with r es pect to the applicability of Exempti on 4 but R EMAND for the district court to afford ICP the opportunityto fulfill its burde n o f production of showing that Wachovia functions as a principal underwriter to its subprime lenders and that the credi t, f unding, or other financial relationships involved here are likely material relationships.