UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ENERGY POLICY ADVOCATES, : : Plaintiff, : Civil Action No.: 23-507 (RC) : v. : Re Document No.: 15 : SECURITIES AND EXCHANGE : COMMISSION, : : Defendant. :
MEMORANDUM OPINION
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
In this case arising under the Freedom of Information Act (“FOIA”), 5 U.S.C § 552,
Plaintiff Energy Policy Advocates (“EPA”) seeks certain documents from Defendant Securities
and Exchange Commission (“SEC”). In January 2023, EPA submitted a FOIA request to the
SEC seeking certain communications between then-SEC Senior Counsel for Climate and ESG,
Kristina Wyatt, and outside organizations Persefoni AI Inc. (“Persefoni”) – a climate
management and accounting platform company – and Environmental Resources Management
(“ERM”) Group – a sustainability consultancy firm. One month later, in February 2023, Plaintiff
sued Defendant to compel the agency to disclose a subset of records, arguing that those entities
encouraged the SEC to issue climate change regulations in their discussions regarding the SEC’s
proposed climate rulemaking. After the SEC submitted several responses to Plaintiff’s FOIA
request, Plaintiff objected to a particular set of the SEC’s withholdings made under several FOIA
exemptions. The SEC moved for summary judgment, which EPA opposes, and the parties
agreed that summary judgment will address the SEC’s withholdings under Exemptions 4 and 5. For the reasons set forth below, the Court finds that the SEC properly asserted FOIA Exemptions
4 and 5, and it will grant its motion.
II. FACTUAL BACKGROUND
In January 2023, EPA submitted a FOIA request to the SEC seeking “all electronic mail
a) sent to, from or which copies (whether as cc: or bcc:) then-SEC Senior Counsel for Climate
and ESG Kristina Wyatt, which b) also i) includes, anywhere in an email or email ‘thread’,
whether as a correspondent’s address or otherwise in the body of, e.g., a forwarded email, the
word Persefoni (including but not limited to in, e.g., @persefoni.com), or ii) is sent to, from, or
copies a) @ceres.org.org [sic], and/or b) @ERM.com, and iii) are dated at any time from
September 1, 2021 through March 6, 2022, inclusive.” Def.’s Statement of Material Facts Supp.
Mot. Summ. J. (“SMF”) ¶ 1, ECF No. 15-1; see also Compl. ¶ 8, ECF No. 1. In April 2023, the
SEC told Plaintiff that it identified approximately 9,600 pages of records that might be
responsive to the request; and in July, August, September, and October 2023, the SEC FOIA
Office issued its responses to Plaintiff’s FOIA request that included pages that were withheld or
redacted in part pursuant to FOIA Exemptions 4 and 5, and 6, 5 U.S.C. §§ 552(b)(4), (5), (6).
SMF ¶¶ 5–6.
After the SEC’s final response to the FOIA request in October 2023, Plaintiff’s counsel
informed the SEC’s counsel that Plaintiff objected to a subset of the withholdings made under
FOIA Exemption 5, which is detailed in a 96-page PDF “consisting of excerpts of records that
the SEC had released in connection with the FOIA request.” SMF ¶ 10; see Decl. of Mark
Tallarico ¶ 6, ECF No. 15-6 (“Tallarico Decl.”). In December 2023, the SEC provided Plaintiff
with an initial Vaughn Index explaining the withholdings that Plaintiff objected to, which
included additional assertions that some information should also be withheld under Exemption 4.
2 SMF ¶ 10. Later that month, the SEC’s FOIA Office issued an additional response to Plaintiff’s
FOIA request, which included six pages of records with modified withholdings under
Exemptions 4, 5, and 6, 5 U.S.C. §§ 552(b)(4), (5), (6). Def.’s Mot. for Summ J. (“Def.’s MSJ”)
at 3, ECF No. 15-8. As mentioned, the parties agreed that the issues to be resolved through
summary judgment are the SEC’s withholding of information under FOIA Exemptions 4 and 5
from the 96-page PDF consisting of excerpts or records that the SEC had released in connection
with the FOIA request, which Plaintiff’s counsel sent to the SEC’s counsel in October 2023. Id.
III. LEGAL STANDARD
FOIA serves “to pierce the veil of administrative secrecy and to open agency action to the
light of public scrutiny.” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991) (quoting Dep’t of
Air Force v. Rose, 425 U.S. 352, 361 (1976)). The Act “directs that ‘each agency, upon any
request for records . . . shall make the records promptly available to any person’ unless the
requested records fall within one of the statute’s nine exemptions.” Loving v. Dep’t of Def., 550
F.3d 32, 37 (D.C. Cir. 2008) (quoting 5 U.S.C. § 552(a)(3)(a)). “Consistent with the Act’s goal
of broad disclosure,” those exemptions should be “given a narrow compass.” U.S. Dep’t of Just.
v. Tax Analysts, 492 U.S. 136, 151 (1989). “The agency bears the burden of establishing that a
claimed exemption applies.” Citizens for Resp. and Ethics in Wash. v. U.S. Dep’t of Just., 746
F.3d 1082, 1088 (D.C. Cir. 2014) (citations omitted). To meet its burden and qualify for an
exemption, the agency may “rely on declarations that are reasonably detailed and non-
conclusory.” Pinson v. Dep’t of Just., 313 F. Supp. 3d 88, 106 (D.D.C. 2018). Such declarations
must “provide ‘a relatively detailed justification, specifically identifying the reasons why a
particular exemption is relevant and correlating those claims with the particular part of a
withheld document to which they apply.’” Elec. Priv. Info. Ctr. v. U.S. Drug Enf’t Agency, 192
3 F. Supp. 3d 92, 103 (D.D.C. 2016) (quoting Mead Data Cent., Inc. v. U.S. Dep’t of Air Force,
566 F.2d 242, 251 (D.C. Cir. 1977)).
Because FOIA cases do not often involve disputed facts, they “are typically and
appropriately decided on motions for summary judgment.” Moore v. Bush, 601 F. Supp. 2d 6, 12
(D.D.C. 2009) (citations omitted). In reviewing a motion for summary judgment under the
FOIA, the Court has an obligation to review the record de novo. See 5 U.S.C. § 552(a)(4)(B).
Even when a plaintiff does not challenge the adequacy of an agency’s search for responsive
records, an “agency must demonstrate that it has conducted a search reasonably calculated to
uncover all relevant documents.” Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir.
1994) (internal citation and punctuation omitted). Summary judgment is justified “if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). In assessing whether the movant has met
that burden, a court “must view the evidence in the light most favorable to the nonmoving party,
draw all reasonable inferences in his favor, and eschew making credibility determinations or
weighing the evidence.” Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008) (citations
omitted).
“Typically, the agency demonstrates the applicability of a FOIA exemption by providing
affidavits [or declarations] regarding the claimed exemptions.” Shapiro v. U.S. Dep’t of Just.,
893 F.3d 796, 799 (D.C. Cir. 2018). “[A]n agency’s justification for invoking
a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Id. (quoting Larson v.
Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citations omitted)). If a FOIA exemption
applies, an agency cannot withhold any records unless it also “reasonably foresees that disclosure
would harm an interest protected by” the exemption. 5 U.S.C. § 552(a)(8)(A)(i)(I); Reps. Comm.
4 for Freedom of the Press v. Fed. Bureau of Investigation, 3 F.4th 350, 369 (D.C. Cir. 2021)
(explaining the FOIA Improvement Act of 2016’s “foreseeable harm” requirement). “[E]ven
where exemptions apply, the [agency] must [also] take reasonable steps necessary to segregate
and release nonexempt information.” Nat’l Ass’n of Minority Veterans v. U.S. Dep’t of Veterans
Affs., 642 F. Supp. 3d 83, 97 (D.D.C. 2022) (quotation and citations omitted).
IV. ANALYSIS
As for the issues to be resolved through summary judgment, the Court will consider the
SEC’s assertions of FOIA Exemptions 4 and 5 to justify its redactions and withholdings. The
EPA challenges all the SEC’s FOIA Exemption 4 assertions, but for FOIA Exemption 5, the
EPA challenges all but the attorney-client privilege assertions. Pl.’s Opp’n Mot. Summ. J.
(“Pl.’s Opp’n”) at 1, ECF No. 17. After initially considering the adequacy of the SEC’s search,
the Court will examine (1) the applicability of each exemption asserted, (2) whether the
foreseeable harm requirement was met for each exemption, and (3) whether all reasonably
segregable material has been released.
A. Adequacy of the Search
Plaintiff does not dispute that the SEC conducted an adequate search for records
responsive to its FOIA Request. ECF 14 at 2. However, the Court still considers the adequacy
of the SEC’s search by bearing in mind the individual circumstances of the case and by using the
reasonableness standard. Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C.Cir.1990). Instead of
considering whether other responsive documents may exist, it evaluates whether the search itself
was adequate. Steinberg, 23 F.3d at 551. There is no requirement that an agency search through
all of the documents in its systems, but the agency bears the burden of conducting a good faith,
reasonable search of the systems likely to include the information in question. Oglesby v. U.S.
5 Dep’t of Army, 920 F.2d 57, 61–62 (D.C. Cir. 1990). “Once an agency has provided adequate
[declarations], the burden shifts back to the plaintiff to demonstrate a lack of a good faith
search.” Moore, 601 F. Supp. 2d at 13.
If a declaration is reasonably detailed and not refuted by evidence of bad faith or
otherwise contrary evidence, an agency may prove the reasonableness of its search if the
declaration is made by any responsible agency officials. Mil. Audit Project v. Casey, 656 F.2d
724, 738 (D.C. Cir. 1981). An agency’s declarations are received with “a presumption of good
faith, which cannot be rebutted by purely speculative claims about the existence and
discoverability of other documents.” SafeCard Servs. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.
1991) (internal citation and quotation omitted). Here, the SEC included a declaration by Mark
Tallarico, who is an attorney in its Office of the General Counsel (“OGC”) and the FOIA Liaison
for OGC, responsible for “coordinat[ing] OGC’s searches for documents that may be responsive
to a FOIA request.” Tallarico Decl. ¶ 1. It also included a declaration by Lizzette Katilius, the
Branch Chief in the SEC FOIA Office, who is responsible for “coordinating and processing
FOIA requests” and “organizing searches for documents responsive to FOIA requests . . .” Decl.
of Lizzette Katilius ¶ 1, ECF No. 15-2 (“Katilius Decl.”). Through these declarations, which
include the SEC personnel that were knowledgeable about and responsible for the searches
conducted in connection with Plaintiff’s FOIA request, the SEC has shown that it conducted a
reasonable search to uncover all relevant documents in response to EPA’s request.
See Steinberg, 23 F.3d at 551. The EPA has also cited no contrary evidence, nor has it submitted
evidence of bad faith, so the Court holds that the SEC has satisfied this burden.
6 B. Exemption 4
1. Application of Exemption 4
The SEC claims Exemption 4 to withhold certain documents involving ERM Protected
Information and Persefoni Protected Information. The SEC defines “ERM Protected
Information” as “notes taken by SEC staff during a meeting between ERM and SEC staff as well
as slides that ERM prepared and presented to SEC staff during that meeting.” Def.’s MSJ at 9.
Additionally, it defines “Persefoni Protected Information” as “confidential information about
Persefoni’s strategic development goals and plans concerning costs for its products.” Id. at 10.
The SEC claims that these documents “consist[] of information about Persefoni’s strategic
development goals and plans concerning costs for its products” ( Decl. of Peter Bartolino ¶ 8,
ECF No. 15-5 (“Bartolino Decl.”)), “information that ERM presented to SEC staff,” including
information represented in meeting notes and slides (Decl. of Ann Chilton ¶ 6-10, ECF No. 15-4,
(“Chilton Decl.”)), and information that Persefoni provided to SEC staff (Bartolino Decl. ¶ 6).
FOIA Exemption 4 exempts from disclosure “trade secrets and commercial or financial
information obtained from a person” that is “privileged or confidential.” 5 U.S.C. § 552(b)(4).
“Unlike many other types of information subject to an agency’s control, materials
implicating Exemption 4 are generally not developed within the agency.” Jud. Watch, Inc. v.
FDA, 449 F.3d 141, 148 (D.C. Cir. 2006). To properly apply this exemption, the agency must
establish that the records are “(1) commercial or financial, (2) obtained from a person, and (3)
privileged or confidential.” Pub. Citizen Health Rsch. Grp. v. FDA, 704 F.2d 1280, 1290 (D.C.
Cir. 1983). After demonstrating that the elements of Exemption 4 are applicable, the agency
must also “explain how disclosing, in whole or in part, the specific information withheld
under Exemption 4 would harm an interest protected by this exemption, such as causing ‘genuine
7 harm to [the submitter’s] economic or business interests.’” Ctr. for Investigative Reporting v.
U.S. Customs & Border Prot., 436 F. Supp. 3d 90, 119 (D.D.C. 2019).
Plaintiff does not dispute that the withheld information is commercial or financial.
Plaintiff also does not question whether the information was “obtained from a person.”
However, Plaintiff argues that the SEC’s justification for the exemption does not include
sufficient evidence to determine that the information is “confidential.” Pl.’s Opp’n at 4–12. The
SEC claims that it met its burden because it “appropriately consulted with Persefoni and ERM
about whether information it had provided to the SEC contained confidential information
(Chilton Decl. at ¶¶ 5–9; Bartolino Decl. at ¶¶ 5–6), ERM and Persefoni “expected that under the
SEC’s statutes, regulations, and practices . . . the SEC would not disclose” the withheld
information ( Chilton Decl. at ¶ 15; Bartolino Decl. at ¶ 12), and ERM’s “information about
how it determines its billing rates, labor categories, and project structure information” is
confidential because “such information would give an advantage to competitors.” (Supplemental
Chilton Decl. ¶¶ 6–9, ECF No. 18-1).
First, although Plaintiff does not challenge whether the SEC’s withholdings are
commercial or financial and whether the records were obtained from a person, the Court
nonetheless briefly considers these issues to confirm that the agency has satisfied its burden. The
terms “‘commercial’ and ‘financial’ in the exemption should be given their ordinary meanings.”
Pub. Citizen Health Rsch. Grp, 704 F.2d at 1290. Information is “commercial” or “financial” so
long as the submitter of the information has a “commercial interest” in it. See Baker & Hostetler
LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 319 (D.C. Cir. 2006). The D.C. Circuit has given
“commercial interest” a broad definition; as it includes information that “reveal[s] basic
commercial operations,” “relate[s] to the income-producing aspects of a business,” or bears upon
8 the “commercial fortunes” of an organization. Id. (internal quotation marks and citations
omitted). Here, the Court holds that the ERM Protected Information and the Persefoni Protected
Information is such that ERM and Persefoni have established a “commercial interest,” as their
economic or business interests would be harmed if the information were released.
Second, the Court also concludes that the information in question was obtained from a
person. A “person” under FOIA, includes “an individual, partnership, corporation, association,
or public or private organization other than an agency[.]” 5 U.S.C. § 551(2). Because the
information in question was obtained from ERM and Persefoni – both outside organizations and
non-governmental entities – the Court holds that the SEC has satisfied this burden.
Lastly, information is confidential for the purpose of Exemption 4 when it is “treated as
private by its owner.” Wilson v. FCC, No. 21-cv-895, 2022 WL 4245485, at *10 (D.D.C. Sept.
15, 2022). Although Plaintiff asserts that “SEC’s affidavits do not bear out SEC’s assertions of
confidentiality” because “no party appears to have sworn that the information in SEC’s
possession was ever treated as confidential within the meaning of applicable laws and SEC’s
own regulations” (Pl.’s Opp’n at 1), the SEC is correct that it has satisfied this burden because
both “ERM and Persefoni stated in their declarations that they “expected that under the SEC’s
statutes, regulations, and practices regarding the treatment of non-public information, the SEC
would not disclose” the withheld information. Chilton Decl. at ¶ 15; Bartolino Decl. at ¶ 12.
This demonstrates that the information was treated as private by its owners – both ERM and
Persefoni. ERM also explicitly “asked SEC staff not to disclose the information that ERM had
provided” (Chilton Decl. at ¶ 16), which further satisfies this burden.
This Court has previously held that there are two conditions that satisfy the “confidential”
requirement for the purpose of Exemption 4 – that information is confidential when it is “treated
9 as private by its owner,’ and ‘provided to the government under an assurance of privacy.’” Ctr.
for Investigative Reporting, 436 F. Supp. 3d at 109 (quoting Food Mktg. Inst. v. Argus Leader
Media, 139 S. Ct. 2356, 2366 (2019)). The SEC is right that the second prong of the requirement
– the government’s assurance of privacy – is no longer necessary to satisfy this requirement.
Wilson, 2022 WL 4245485, at *10 (“[c]ourts in this Circuit have declined to read the word
confidential to impose a blanket requirement that the government provide an assurance of
privacy in every case in which it asserts Exemption 4, in part because doing so would prompt
many fairly arbitrary disputes over whether such an assurance can be implied. If anything, courts
here have taken the position that privately held information is generally confidential absent an
express statement by the agency that it would not keep information private, or a clear implication
to that effect (for example, a history of releasing the information at issue).” (citations omitted)).
Therefore, because ERM and Persefoni treated the withheld information as private and expected
that the SEC would not disclose it, the Court holds that these withholdings should be considered
confidential.
2. “Foreseeable Harm” Requirement
The Court considers whether the SEC satisfied the “foreseeable harm” requirement
needed to claim a FOIA exemption. “Congress has protected the public’s right of access and
balanced those interests in nine exemptions that are to be narrowly construed and, apart from
Exemption 3, subject to the foreseeable harm requirement.” Leopold v. Dep’t of Just., 94 F.4th
33, 38 (D.C. Cir. 2024). “To meet this requirement, the [SEC] must explain how disclosing, in
whole or in part, the specific information withheld under Exemption 4 would harm an interest
protected by this exemption, such as causing genuine harm to the submitter’s economic or
business interests and thereby dissuading others from submitting similar information to the
10 government.” Ctr. for Investigative Reporting, 436 F. Supp. 3d at 113 (internal citation omitted)
(cleaned up). Though EPA contests the SEC’s foreseeable harm assertion, the Court finds that
the SEC has satisfied its burden. For ERM, the SEC argues that it is reasonably foreseeable that
releasing information about its “pricing strategy, labor categories, and project structure
information” would cause foreseeable harm because it is “proprietary and confidential, and
disclosure of such pricing and project information would give an advantage to competitors”
because they “could use this information to undercut ERM in the bidding process and to entice
away ERM’s staff.” SMF ¶ 22. Similarly, for Persefoni, the SEC also asserts that releasing its
“strategic development goals and plans concerning product costs” would cause foreseeable harm
because it is “proprietary and confidential, and disclosure of such information would give an
advantage to competitors.” SMF ¶ 29. For both companies, the SEC explains how the
disclosure of the withheld information would have a direct impact on its business and financial
interests. The SEC “concretely explain[s] how disclosure would cause harm” to what Exemption
4 protects by explaining a “link between the specified harm and the specified information
contained in the material withheld.” WP Co. LLC v. U.S. Small Bus. Admin., 575 F. Supp. 3d
114, 119–20 (D.D.C. 2021) (cleaned up); accord Reps. Comm., 3 F.4th at 369–71.
Additionally, and with respect to a government agency disclosing pricing data and similar
information specifically, the Circuit has previously held that information such as pricing and
business strategies are exactly the type of confidential information that are meant to be protected
by FOIA Exemption 4. See Citizens for Resp. and Ethics in Wash. v. U.S. Dep’t of Just., 58
F.4th 1255, 1263 (D.C. Cir. 2023) (“[Plaintiff] does not appeal the [Defendant]’s withholding of
clearly commercial information, such as ‘price and contract term negotiations’ and ‘pricing and
business strategies,’ which fall neatly within Exemption 4.”) (citation omitted); see also Buzzfeed
11 Inc. v. Department of Justice, 2023 WL 6847008 1, 6 (D.D.C. 2023) (“The declarations pointed
to other information, including pricing data, existing customer information, and general
proprietary services, which both were included in the emails and can be reasonably foreseen to
cause economic harm to the company(s) if disclosed.”). The Court agrees, and disclosing such
information should continue to be protected by Exemption 4. The SEC adequately explains the
link between the withheld pricing and project information and the foreseeable harm that it would
cause – giving an advantage to competitors by allowing them the opportunity to use it in the
bidding process and to lure away ERM’s staff. Therefore, the Court finds that the SEC has
satisfied the foreseeable harm requirement, and its Exemption 4 withholdings are proper.
C. Exemption 5
1. Application of Exemption 5
The SEC withholds other materials under Exemption 5, including “certain information
from parent emails” and “certain attachments to the emails.” SMF ¶ 30. The SEC states that it
withheld these records under the deliberative process privilege and attorney-client privilege and
that the disclosure of these withheld documents would “jeopardize the candid and comprehensive
discussions that are essential for efficient and effective agency rulemaking and policy
development” (Id. ¶ 38) and confuse the public with discussions about the rulemaking decisions
that the SEC did not make. As mentioned, Plaintiff waives any arguments it might have under
the attorney-client privilege in this case, but it argues that Exemption 5 should otherwise not
apply because “the relevant correspondence was not deliberative within the meaning of the law”
and the harm with respect to these withholdings is not foreseeable. Pl.’s Opp’n at 1.
Exemption 5 protects “inter-agency or intra-agency memorandums or letters that would
not be available by law to a party . . . in litigation with the agency.” 5 U.S.C. § 552(b)(5). The
12 exemption covers documents “normally privileged in the civil discovery context,” Jud. Watch,
Inc. v. U.S. Dep’t of Just., 365 F.3d 1108, 1113 (D.C. Cir. 2004), such as materials protected by
the attorney-client privilege, the attorney work-product privilege, and “what is sometimes called
the ‘deliberative process’ privilege.” See U.S. Dep’t Interior v. Klamath Water Users Protective
Ass’n, 532 U.S. 1, 8 (2001).
2. Deliberative Process Privilege
To withhold documents under Exemption 5 through the deliberative process privilege, an
agency must show that releasing the specific records sought “‘would’ chill future internal
discussions.” Machado Amadis v. U.S. Dep’t of State, 971 F.3d 364, 371 (D.C. Cir. 2020).
Additionally, an intra-agency communication must be both predecisional and deliberative.
Abtew v. U.S. Dep’t of Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015). For the
predecisional requirement, the document must be “generated before the adoption of an agency
policy.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). For
the deliberative requirement, the document must be “part of the agency give-and-take of the
deliberative process by which the decision itself is made.” Vaughn v. Rosen, 523 F.2d 1136,
1144 (D.C. Cir. 1975).
Addressing Plaintiff’s challenge to the SEC’s Vaughn Index first, Plaintiff contends that
the SEC’s Vaughn Index fails to include explanations about how certain documents contributed
to “administrative decisionmaking” and “includes only the names of parties without explaining
the role of those parties in any relevant decisionmaking process.” Pl.’s Opp’n at 6. However,
the SEC argues that it includes “the author and recipients of the record and states whether the
record is intra- or inter-agency” and “each entry also contains a description of the withheld
information and explains the aspect of SEC climate policy and rulemaking development to which
13 the withheld information relates.” Reply to Pl.’s Opp’n (“Reply”) at 12. As the SEC articulates,
the Court has not established a blanket requirement that a Vaughn Index must contain the roles of
every individual mentioned in the withheld records. Skull Valley Band of Goshute Indians v.
Kempthorne, No. 04-cv-339, 2007 WL 915211, at *5 (D.D.C. Mar. 26, 2007) (“There is no set
formula for a Vaughn index; so long as the agency provides the Court with materials providing a
‘reasonable basis to evaluate the claim of privilege,’ the precise form of the agency’s submission
. . . is immaterial.”). After Plaintiff’s challenge, the SEC also provides a supplemental
declaration that includes the offices and titles of the SEC staff relevant to the withheld records.
See Supplemental Tallarico Decl., ECF No. 18-2. The Circuit has explained that considering
multiple documents, or using a “combination approach,” is sufficient because it provides the
Court with a “reasonable basis to evaluate the claim of [the deliberative process] privilege.”
Heffernan v. Azar, 317 F.Supp.3d 94, 117 (D.D.C 2018) (quoting Gallant v. NLRB, 26 F.3d 168,
172–73 (D.C. Cir. 1994); see also DiBacco v. U.S. Army, 795 F.3d 178, 186 n.2 (D.C. Cir.
2015) (“Although agencies frequently rely on Vaughn indices, [t]he materials provided by the
agency may take any form so long as they give the reviewing court a reasonable basis to evaluate
the claim of privilege.” (alteration in original) (citation and internal quotation marks omitted)).
Additionally, although Plaintiff objects that “specific phrases appear multiple times,”
withheld information was “lumped together,” and the SEC used “identical information,” see Pl.’s
Opp’n at 3–5, the fact that there are repeat phrases and similar explanations to characterize the
information is not sufficient to claim that there was a lack of specificity in the Vaughn Index, as
repetitive language is expected if the withheld records relate to the same subject matter. See
Chavis v. U.S. Dep’t Just., No. 1:20-cv-00638 , 2021 WL 1668069, at *10 (D.D.C. Apr. 28,
2021) (“FOIA does not prohibit the [agency] from recycling explanations if the same reasoning
14 applies to withhold information across multiple documents.”); Hall & Assocs. v. U.S. EPA, 633
F. Supp. 3d 35, 73 (D.D.C. 2022) (approving Vaughn index where “many [] entries contain the
same language . . . because many of the withheld documents are similar”). Courts have
previously held that there is good reason for similar language to be included in Vaughn indices if
they pertain to the same types of records. See Energy Pol’y Advocs. v. SEC, No. 1:22-cv-01497,
2023 WL 6976071, at *5 (“If the Commission’s descriptions here are repetitive, it is because the
withheld messages relate to the same climate-related rulemakings.”). Accordingly, after
assessing the entire record, the Court concludes that the SEC’s Vaughn Index includes the
sufficient detail necessary for withholding information under the deliberative process privilege.
The Court now turns to assessing whether the SEC meets the predecisional and
deliberative requirements under the deliberative process privilege. The SEC argues that the
withheld information includes deliberations about the climate-related policy proposals, including
information provided by third parties and discussions about how that information will be used.
Def.’s MSJ at 13. Additionally, it argues that the withheld information “pre-dates the SEC’s
release of the climate-related proposed rules and reflects internal deliberation about those draft
proposed rules.” Def.’s MSJ at 15. Plaintiff claims that the SEC did not satisfy its burden
because it did not provide a sufficient explanation for how the withheld information facilitated
agency deliberation; instead, it “provide[d] boilerplate justification for its many (b)(5) redactions
and includes only the names of the parties without explaining the role of those parties in any
relevant decisionmaking process.” Pl.’s Opp’n at 6.
The Court holds that the predecisional requirement was met by the SEC. The
deliberations included in the withheld documents occurred before the SEC announced its
proposed rules in March and May 2022, and the documents encompassing those discussions are
15 therefore predecisional. The Court also holds that the deliberative requirement has been met
because it is clear that the withheld information is “part of the agency give-and-take” of the
decision that was ultimately made with respect to the rulemaking. Vaughn, 523 F.2d at 1144.
“The withheld information includes opinions and questions about data and information provided
by a third party; discussion of the use of particular data and information in the development of
the proposed rule; discussion about SEC staff attending meetings with external parties; draft
language for the proposed rule and accompanying release, including the Paperwork Reduction
Act section; issues, analysis, and potential next steps relating to the climate rulemaking;
discussion about a draft meeting memorandum and the memorandum itself; discussion about
reporting, consulting, and assurance costs; and discussion about components of climate policy
development.” Reply at 6–7. All of these conversations were part of the agency give-and-take
by which the agency decisions regarding the proposed rules were made.
3. “Foreseeable Harm” Requirement
As the D.C. Circuit has explained, “[f]inding the deliberative process privilege applicable
. . . does not end the matter” because “the government may not withhold even those privileged
materials unless it also ‘reasonably foresees that disclosure would harm an interest protected by’
the FOIA exemption.” Reps. Comm., 3 F.4th at 369. To justify the withholding of records,
“[a]gencies cannot rely on “mere ‘speculative or abstract fears,’ or fear of embarrassment” but
“must concretely explain how disclosure ‘would’—not ‘could’—adversely impair internal
deliberations.” Id. at 369–70 (quotations omitted). Additionally, “[a] -perfunctory state[ment]
that disclosure of all the withheld information—regardless of category or substance—would
jeopardize the free exchange of information between senior leaders within and outside of the
[agency] will not suffice.” Id. at 370 (quotations omitted). “Instead, what is needed is a focused
16 and concrete demonstration of why disclosure of the particular type of material at issue will, in
the specific context of the agency action at issue, actually impede those same agency
deliberations going forward.” Id. Here, the Court finds that the SEC correctly understood the
governing legal requirement and reasonably explained how “chill[ing] future internal
discussions” would cause foreseeable harm.
The SEC argues that disclosing information that it withheld regarding the SEC’s climate-
related rulemaking and policy “would chill discussions in connection with the formulation of
policy proposals for the Commission’s consideration” and “could adversely affect rulemaking
because good solutions are often found as staff share all possible approaches, even those that are
ultimately dismissed.” SMF ¶¶ 32, 34. The SEC explains that such a chilling effect would have
a negative impact on the rulemaking process because it would “prevent robust discussions
among SEC staff and other federal government agencies’ staff in developing policies.” Def.’s
MSJ at 18. Plaintiff asserts, while citing to Reporters Committee v. FBI, that the SEC’s
arguments are “generalized and conclusory” and lack detail and specificity. Pl.’s Opp’n at 15.
As set forth above, Reps. Comm. explains that “what is needed [to satisfy the foreseeable
harm standard] is a focused and concrete demonstration of why disclosure of the particular type
of material at issue will, in the specific context of the agency action at issue, actually impede
those same agency deliberations going forward.” 3 F.4th at 370. This “reasonable foreseeability
of harm” standard requires the agency withholding records to explain any “context or insight into
the specific decisionmaking processes or deliberations at issue, and how they in particular would
be harmed by disclosure” of the contested records. Jud. Watch, Inc., 2019 WL 4644029, at *5 .
The SEC explains that ‘[w]hen deliberating about a rule, staff often determine that certain ideas
have no merit and must be dismissed,” “staff at all levels may change their views of what
17 approach is best during the process of drafting a rule,” and “disclosure of SEC staff’s candid
analysis and assessment of information provided from outside parties may make SEC staff
reluctant to openly discuss the strengthens and weaknesses of information from third parties,
which would hurt the rulemaking process.” Decl. of Elizabeth M. Murphy ¶ 7, ECF No. 15-3
(“Murphy Decl.”). The SEC asserts that if its staff knew that such discussions could be released,
“they would be reluctant to record their views and engage in open discussion during the rule
drafting process.” Murphy Decl. ¶ 8. This chilling effect “could adversely affect rulemaking
because good solutions are often found as staff share all possible approaches, even those that are
ultimately dismissed” and “[it] would also slow down the rulemaking process” because views
would be shared in meetings instead of emails that can be circulated. Id.
The SEC’s explanation of foreseeable harm is not “generalized” nor “conclusory”
because it contains focused and concrete explanations that have been found adequate in this
Circuit. In a similar case addressing the SEC’s withheld records about climate rulemaking, this
Court recently held that “it would be hard to imagine content more clearly exemplifying the
‘give-and-take of the consultative process’ than informal internal agency dialogue about the nuts
and bolts of a proposed rulemaking.” Energy Pol’y Advocs., 2023 WL 6976071 at *4. The D.C.
Circuit has also held that an agency’s affidavit adequately explained that disclosing its internal
work product would “discourage line attorneys from candidly discussing their ideas . . . thus
impairing the forthright internal discussions necessary for efficient and proper adjudication of
administrative appeals.” Machado Amadis, 971 F.3d at 371. Here, the SEC explains how the
disclosure of the withheld records including proposed changes and discussions about a proposed
rulemaking would lead its staff to be less candid in future internal discussions, adversely
affecting the agency’s rulemakings.
18 Additionally, the SEC explains that “releasing the withheld information could also
confuse the public by suggesting that views and approaches that were dismissed or changed
during the drafting process were still relevant options being considered.” Def.’s MSJ at 17
(quoting SMF ¶ 35). Plaintiff asserts that the public confusion argument lacks specificity, and
any confusion caused by the regulations that have been adopted can be “easily resolve[d] . . . by
assuring the public.” Pl.’s Opp’n at 2. In response, the SEC argues that Plaintiff does not
meaningfully address the harms that it explained, such as “chilling discussions about the
formulation of policy proposals and adversely affecting the development of rulemaking” (Reply
at 9) and “suggesting that views and approaches that were dismissed or changed during the
drafting process were still relevant options being considered” (Murphy Decl. at ¶ 9). Here, the
SEC has satisfied its burden. “[T]he D.C. Circuit has long recognized that the risk of public
confusion ‘has a special force with respect to disclosures of agency positions or reasoning
concerning proposed policies.’” Reps. Comm. for Freedom of the Press v. U.S. CBP, 567 F.
Supp. 3d 97, 122 (D.D.C. 2021) (quoting Petroleum Info. Corp. v. Dep’t of Interior, 976 F.2d
1429, 1436 n.10 (D.C. Cir. 1992)). Because the withheld records include candid discussions that
might contradict the final rulemaking, it would cause harmful confusion. Ultimately, the SEC
“has adequately explained the sensitive nature of the information contained in the withheld
[records], the important role these exchanges play in its decisional process, and the effect
disclosure would have on similar future exchanges.” Energy Pol’y Advocs., 2023 WL 6976071
at *67. The SEC provides specific explanations for how releasing this withheld information
would harm future open discussions; and therefore, the SEC met its burden to satisfy the
foreseeable harm requirement under FOIA Exemption 5.
19 D. Segregability
Finally, the Court considers whether the SEC has produced all segregable, nonexempt
information. See Elliott v. U.S. Dep’t of Agric., 596 F.3d 842, 851 (D.C. Cir. 2010). “To meet
its burden on segregability, a government agency must usually submit a sufficiently detailed
Vaughn Index for each document and an affidavit or declaration stating that it has released all
segregable material.” Bloche v. Dep’t of Def., 370 F. Supp. 3d 40, 55 (internal citations omitted).
Plaintiff argues that the withheld records “could be releasable and warrant disclosure” and that
“no effort was taken . . . to segregate confidential portions of information from nonconfidential
portions of information.” Pl.’s Opp’n at 4, 8–9. The SEC responds that it properly conducted a
segregability analysis, and “providing additional information contained in the records would
expose SEC staff’s deliberations about developing climate rulemaking and policy as well as
proprietary confidential information belonging to Persefoni and ERM” that is appropriately
subject to FOIA exemptions. Reply at 11.
The SEC’s position is correct. “FOIA requires that if a document contains information
that is exempt from disclosure, any ‘reasonably segregable’ information must be disclosed after
redaction of the exempt portions, unless the non-exempt portions are ‘inextricably intertwined’
with the exempt portions.” Moore, 601 F. Supp. 2d at 16 (quoting 5 U.S.C. § 552(b); Mead
Data Cent., 566 F.2d at 260 ). As the SEC articulates, it “conducted a line-by-line review” of
responsive records and “provided all non-exempt information that could be segregated from
exempt information.” SMF ¶ 41. The D.C. Circuit has previously held that an agency satisfied
its segregability burden when it attested that it had “conducted a page-by-page and line-by-line
review, and released all reasonably segregable, non-exempt information within responsive
records.” Porup v. Cent. Intel. Agency, 997 F.3d 1224, 1239 (D.C. Cir. 2021). Here, the Court
20 concludes that the SEC’s “sworn statements sufficiently establish that ‘no portions of the [fully]
withheld documents may be segregated and released.’” Id. Plaintiff has not raised any issues that
call that assertion into question. To the contrary, the fact that a large portion of the documents
the SEC disclosed were redacted, rather than withheld in full, see SMF ¶¶ 5, 8, 9, is indicative of
the SEC’s effort to carefully segregate exempt information from non-exempt information. See
Bigwood v. U.S. Dep’t of Def., 132 F.Supp.3d 124, 150 (D.D.C. 2015) (holding that the agency
releasing pages with “interspersed redactions” demonstrates that it “conducted a line-by-line
review to ensure that it provided all reasonably segregable information.”). As such, the Court
finds that the SEC has met its segregability obligations because it has segregated and released
what non-exempt information it could.
V. CONCLUSION
For the foregoing reasons, the Court grants Defendant’s motion for summary judgment.
An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: October 17, 2024 RUDOLPH CONTRERAS United States District Judge