CUBAN v. SECURITIES EXCHANGE COMMISSION

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f-energy-2#p866617 F.2d at 866). "However, in cases where there is no identifying information that would link an individual to a document, this potential is unlikely." Id. The defendant bears the burden of demonstrating, with respect to each its records, that it was candid or personal in nature, that individuals can be linked to the record, and that the information discussed in the record does more than just describe existing policy. The Court cannot discern in any regard whether records 1-3, 9, 11, 13-15, 17, 19, 21-22, 25-29, 32-35, 37-46, 48-57, 59-64, 69, 71, and 73-76 contain such candid and personal communications.

In addition, it is not disputed that the categories of records that might qualify as predecisional and deliberative is great.See Klamath Water Users Protective Ass'n, 532 U.S. at 8 ("deliberative process covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated" (citation and internal quotation marks omitted)). But just because numerous forms of records can qualify does not mean they do qualify in their entirety. Even if these records indexed by the defendant contain such deliberations, which the defendant has not established merely by its own conclusion, the Court cannot discern from the defendant's representations how these records could be completely withheld under Exemption 5. Indeed, "agencies must disclose those portions of predecisional and deliberative documents that contain factual information that does not `inevitably reveal the government's deliberations.'" Pub. Citizen, 598 F.3d at 876 (quoting In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997)). And the defendant has not met this burden because neither the defendant's declarations nor its descriptions in the Vaughn index state specifically why the wholesale redaction of these records is warranted. Without a more detailed description upon which the Court can rely, it can only conclude that any candid communications (if, in fact, any are within these records) can be selectively redacted in a manner that protects the confidentiality of the recommendations and individuals involved, but still allows any factual information to be produced. Because Exemption 5 is one of the exemptions that "covers only those portions of the documents that are both predecisional and deliberative,"id. at 876 (emphasis added), the defendant, based on the information currently before the Court, must redact and disclose these records in the manner indicated above.

b. Attorney-Client Privilege

In the context of Exemption 5, "the [attorney-client] privilege . . . functions to protect communications between government attorneys and client agencies or departments, as evidenced by its inclusion in the FOIA, much as it operates to protect attorney-client communications in the private sector." In re Lindsey, 158 F.3d 1263, 1269 (D.C. Cir. 1998). "Thus, when the Government is dealing with its attorneys as would any private party seeking advice to protect personal interests, and needs the same assurance of confidentiality so it will not be deterred from full and frank communications with its counselors, [Exemption 5] applies." Id. (quoting Coastal States, 617 F.2d at 863). Accordingly, "[t]o invoke the [attorney-client] privilege, an agency must demonstrate that the document it seeks to withhold (1) involves `confidential communications between an attorney and his [or her] client' and (2) relates to `a legal matter for which the client has sought professional advice.'" Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp. 2d 252, 267 (D.D.C. 2004) (quoting Mead Data Cent., Inc. v. Dep't of the Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977)). However, the attorney-client privilege does not give the agency the ability "to withhold a document merely because it is a communication between the agency and its lawyers." Id. (emphasis added) (citation omitted). The agency must show that the information provided to its lawyers was intended to be confidential and was not disclosed to a third party. Id. (citation omitted).

The defendant asserts that records 11, 13, 21, 25-26, 29, 32, 34-35, 37, 39, 41-44, 53, 55, 57, 59, and 61-63 may be withheld pursuant to the protection of attorney-client privilege under Exemption 5. Def.'s Mem. at 12. The defendant's declarant, again a Senior Special Counsel in the Office of the General Counsel, states that these records include "internal e[-]mail and other internal communications and meetings among OGC attorneys and either one or more [Office of Human Resources] staff members or SEC supervisors regarding [a] personnel matter," and "include legal advice and recommendations." Id., Ex. 4 (Declaration of David M. Pinansky) ("Pinansky Decl.") ¶ 8. Specifically, the defendant maintains that the

documents are either (1) attorney communications containing legal advice, primarily e[-]mails or memoranda, with [Human Resources] staff and/or SEC managers regarding the handling of an internal personnel matter, or (2) e[-]mails and handwritten notes reflecting those communications. To the extent a document is not to or from an attorney, it is a document that describes a communication with an attorney on that matter.

Id., Ex. 10 (Pinansky Suppl. Decl.) ¶ 4. The defendant also submitted two additional declarations, one from the Senior Special Counsel just referenced and the second from a non-attorney Employee and Labor Relations Specialist in the Office of Human Resources, wherein they represent that they "have no information that would lead [them] to believe that the documents withheld under Exemption 5 have been released outside of the Commission." Id., Ex. 10 (Pinansky Suppl. Decl.) ¶ 3; id., Ex. 11 (Supplemental Declaration of Nancy Ellen Tyler) ("Tyler Suppl. Decl.") ¶ 4.

In its opposition filing, the plaintiff maintain that the defendant's representations do not satisfy its burden of establishing that the records may be withheld pursuant to Exemption 5 because the defendant has failed to establish that the communications were confidential when created and have since retained their confidential status. Pl.'s Mem. at 16. Nor, the plaintiff maintains, has the defendant relied on anything more than "[n]aked assertions that documents are covered by the [attorney-client] privilege." Id. The plaintiff points out that "e[-]mails sent to an [Office of Human Resources] attorney are not privileged unless they convey confidential information for the purpose of obtaining legal advice," and therefore the defendant's assertion that the records are e-mail communications and thus shielded from disclosure is not determinative. Id. at 17; see also Pl.'s Reply at 14. Finally, the plaintiff points out that no single declarant can represent that the communications have not been disseminated outside of the agency because a declarant cannot speak for everyone at the agency and therefore cannot possibly know if such an assertion is true. Pl.'s Reply at 13.

The Court agrees with the plaintiff that the declarations submitted are too conclusory for the Court to render summary judgment for the defendant on the basis of the attorney-client privilege. "A blanket assertion of the privilege will not suffice." In re Lindsey, 148 F.3d 1100, 1106 (D.C. Cir. 1998). "Like all privileges . . . the attorney-client privilege is narrowly construed and is limited to those situations in which its purposes will be served." Coastal States, 617 F.2d at 862. Simply, the defendant cannot meet its burden without "`prov[ing] that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements.'" Founding Church of Scientology v. NSA, 610 F.2d 824, 836 (D.C. Cir. 1979) (emphasis added) (citation omitted); see also Senate of Puerto Rico v. U.S. Dep't of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987) ("We have simultaneously cautioned that `conclusory assertions of privilege will not suffice to carry' the agency's burden.") (citation omitted). The attorney-client privilege is not applicable just because the defendant states that it applies, and a review of the defendant's declaration reveals that the defendant offers nothing more than conclusory assertions and blanket affirmations. See Def.'s Mem., Ex. 4 (Pinansky Decl.) ¶ 8; see also Def.'s Reply, Ex. 10 (Pinansky Suppl. Decl.) ¶¶ 3-4; id., Ex. 11 (Tyler Suppl. Decl.) ¶¶ 3-4. Simply, the defendant must provide more information from which the Court can assess whether the attorney-client privilege was properly asserted.

In other words, "[t]he burden is on the agency to demonstrate that confidentiality was expected in the handling of these communications, and that it was reasonably careful to keep this confidential information protected from general disclosure," not just within the agency, but also among any other individuals outside the agency who needed access to the information. Coastal States, 617 F.2d at 863. The declarants' assertions that they lack any reason to believe that the records were "released outside of the Commission," Def.'s Reply, Ex. 10 (Pinansky Suppl. Decl.) ¶ 3 (emphasis added); see also id., Ex. 11 (Tyler Suppl. Decl.) ¶ 4, do not address the issue of whether those communications were "circulated no further than among those members `of the organization who are authorized to speak or act for the organization in relation to the subject matter of the communication.'" Coastal States, 617 F.2d at 863 (citation omitted); see Mead Data Cent., 566 F.2d at n. 24 ("Where the client is an organization, the privilege extends to those communications between attorneys and all agents or employees of the organization who are authorized to act or speak for the organization in relation to the subject matter of the communication."). To the extent that any information, including factual information contained within the records, was relayed to anyone outside the sphere of those who needed to know the information within the organization, that information cannot be withheld, and the records must

be produced completely or in a redacted form if another exemption justifies the withholding. See Mead Data Cent., 566 F.2d at 254-55 (stating that where "the background facts provided [in the records] could easily be information which is not restricted to the [agency] personnel directly responsible for the negotiations . . . [that information was] therefore not confidential for purposes of th[e attorney-client] privilege");see also Coastal States, 617 F.2d at 863 ("If facts have been made known to persons other than those who need to know them, there is nothing on which to base a conclusion that they are confidential."). Accordingly, the defendant must provide more proof that the privilege applies if it desires to shield these records from production based on an assertion of the attorney-client privilege.

c. Attorney Work Product

"The work-product doctrine shields materials `prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).'" Judicial Watch, Inc. v. Dep't of Justice ("Judicial Watch I"), 432 F.3d 366, 369 (D.C. Cir. 2005) (citation omitted). "The work product doctrine protects such deliberative materials but it also protects factual materials prepared in anticipation of litigation." Tax Analysts v. IRS, 117 F.3d 607, 620 (D.C. Cir. 1997). This means that "`[a]ny part of [a document] prepared in anticipation of litigation, not just the portions concerning opinions, legal theories, and the like, is protected by the work product doctrine and falls under exemption 5.'" Judicial Watch I, 432 F.3d at 371 (alterations in original) (quoting Tax Analysts, 117 F.3d at 620). Therefore, unlike the attorney-client privilege, "factual material is itself privileged when it appears within documents that are attorney work product," and if a record may be withheld under the attorney work-product protection of Exemption 5, "then segregability is not required." Id. Moreover, "Exemption 5, attorney work-product is exempt from mandatory disclosure without regard to the status of the litigation for which it was prepared." FTC v. Grolier Inc., 462 U.S. 19, 28 (1983). However, if the records were prepared by attorneys "in the ordinary course of business or for other nonlitigation purposes," the agency cannot rely upon the work product privilege under Exemption 5. In re Sealed Case, 146 F.3d 881, 887 (D.C. Cir. 1998) ("Of course, not all work undertaken by lawyers finds protection in the work-product privilege.").

The defendant asserts that records 10-11, 13-15, 18-29, 31-46, 48-64, and 77 may be withheld pursuant to the attorney work-product privilege conferred by Exemption 5. Def.'s Mem. at 14. The declarant for the defendant on this subject, a Senior Special Counsel in the Office of the General Counsel, states that "all of these documents for which the SEC asserts Freedom of Information (FOIA) Exemption 5 concern internal Commission legal and personnel matters, and I believe are privileged as attorney work product. . . . [because the documents] were prepared in anticipation of litigation by or at the direction of an attorney." Def.'s Mem., Ex. 2 (Pinansky Decl.) ¶¶ 3, 10; see also Def.'s Reply, Ex. 10 (Pinansky Suppl. Decl.) ¶ 5 (indicating that "[s]ome of the[] documents also include legal analysis and strategy"). The declarant also states: "Because serious discipline of this employee was a possibility at all times we were addressing the personnel problem, we recognized from the beginning of the process that litigation was possible and that we needed to prepare for that situation." Def.'s Mem., Ex. 2 (Pinansky Decl.) ¶ 10. The declarant further states that he, as an attorney, "addressed litigation issues with all of the [Office of Human Resources] staff and supervisors involved in that matter, and to address issues [he] raised, they raised issues, gathered information and prepared memoranda in light of these issues." Id.

The plaintiff counters that the defendant's assertion of the attorney work-product privilege lacks the necessary details to support it. Pl.'s Mem. at 16. The plaintiff asserts that it "defies logic and belief" that "every record withheld regarding this [personnel] matter was prepared by or at the direction of an attorney in anticipation of litigation." Id. And the defendant opines that because the defendant "has identified no litigation between it and the employee who was the subject of the disciplinary matter," the records "appear to have been created for some other purpose than to assist in reasonably foreseeable litigation." Id. at 17. The plaintiff notes that the defendant'sVaughn index "entries make no reference to being prepared by or at the direction of an attorney or that they were prepared in anticipation of litigation. . . . [and posit] they therefore do not reflect the mental impressions of an attorney prepared in anticipation of litigation." Pl.'s Reply at 18.

While the "[work-product] doctrine should be interpreted broadly and held largely inviolate," and often there is no necessity to segregate information within work-product records,Judicial Watch I, 432 F.3d at 369, 371 (indicating that "[a]ny part of [a document] prepared in anticipation of litigation, not just the portions concerning opinions, legal theories, and the like, is protected by the work product doctrine and falls under exemption 5" (citation omitted)), the Court again cannot award summary judgment to the defendant based on its current representations. The defendant's representations are simply too cursory for the Court to ensure that it is making an accurate assessment and not just giving the defendant more deference, beyond the good faith deference that it is due, in making withholding determinations under Exemption 5. The defendant must submit additional evidence that establishes that all of the communications were created with litigation in mind. The plaintiff's position that all personnel actions do not automatically trigger the attorney work-product privilege is correct, but this reality does not compel the defendant to demonstrate that litigation actually resulted from this personnel dispute. See In re Sealed Case, 146 F.3d at 887 ("[W]here . . . lawyers claim they advised clients regarding the risks of potential litigation, the absence of a specific claim [that the client potentially faced litigation] represents just one factor that courts should consider in determining whether the work-product privilege applies."). "For a document to meet this standard, the lawyer must at least have had a subjective belief that litigation was a real possibility, and that belief must have been objectively reasonable." Id. at 884. There are any number of tasks that an attorney could undertake on behalf of or communications that an attorney could have with the human-resources component of an agency — likely even in the contents of an employee's termination — that never trigger the attorney work-product protection because litigation was not objectively reasonable. And the converse is equally true. These determinations cannot be assessed on the existing record, and the defendant must supply greater detail to satisfy its burden to receive the protection of the attorney work-product privilege.

3. Exemption 6

Exemption 6 of the FOIA permits the government to withhold "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). The phrase "similar files" has been "broadly defined to include any `Government records on an individual which can be identified as applying to that individual.'" Judicial Watch of Fla. v. U.S. Dep't of Justice ("Judicial Watch II"), 102 F. Supp. 2d 6, 16 (D.D.C. 2000) (citing U.S. Dep't of State v. Wash. Post Co., 456 U.S. 595, 601-02 (1982)). As construed by the District of Columbia Circuit: "Exemption 6 permits the withholding of information only when two requirements have been met: first, the information must be contained in personnel, medical, or `similar' files, and second, the information must be of such a nature that its disclosure would constitute a clearly unwarranted invasion of personal privacy." Wash. Post, 456 U.S. at 598. This "exemption [was] intended to cover detailed Government records on an individual which can be identified as applying to that individual." Id. at 602 (alteration in original) (citation omitted). However, Exemption 6 should only be employed when the privacy interest at stake outweighs the public interest in disclosure. Therefore, the Court must "balance the `individual's right of privacy' against the basic policy of opening `agency action to the light of public scrutiny," U.S. Dep't of State v. Ray, 502 U.S. 164, 175 (1991) (quoting Dep't of the Air Force v. Rose, 425 U.S. 352, 372 (1976)), always "tilt[ing] the balance (of disclosure interests against privacy interests) in favor of disclosure," Wash. Post Co. v. U.S. Dep't of Health Human Servs., 690 F.2d 252, 261 (1982) (citation omitted). However, "[t]he weight of the public's interest in disclosure depends on the degree to which disclosure would shed light on an agency's performance of its statutory duties and its compliance with the law." Judicial Watch II, 102 F. Supp. 2d at 17 (citing Reed v. NLRB, 927 F.2d 1249, 1252 (D.C. Cir. 1991)). "Information that `reveals little or nothing about an agency's own conduct' does not further the statutory purpose; thus the public has no cognizable interest in the release of such information." Beck v. Dep't of Justice, 997 F.2d 1489, 1493 (D.C. Cir. 1993) (citation omitted).

Just as it did with Exemption 5, the defendant relies on Exemption 6 to withhold almost all of the 80 records included in the Vaughn index. Specifically, the defendant states that Exemption 6 justifies its withholding of records 1-22, 25-57, and 59-80, see Def.'s Reply, Ex. 9, because all but the excluded records "relate to an internal investigation of an employee and address issues related to the potential discipline of the employee," Def.'s Mem. at 18, and "contain names, phone numbers, and e[-]mail addresses of individuals" who "have at least some privacy interest in not making public their involvement in an SEC investigation," Def.'s Mem. at 19-20; id., Ex. 3 (Hall Decl.) ¶ 6. One of the defendant's declarants, again the Senior Special Counsel in the Office of the General Counsel, states that the records pertain to "personnel matters and address issues in which one or more SEC employees would have a privacy interest," and "[i]nformation pertaining to internal personnel matters is very sensitive; especially to the extent it concerns possible misconduct and potential discipline for that misconduct." Id., Ex. 4 (Pinansky Decl.) ¶¶ 3, 5. Another declarant, an Employee and Labor Relations Specialist, adds that the information in records 1-77 relates to a "personnel situation [that] involved numerous internal discussions, meetings and communications with SEC supervisors [and others within the SEC]." Id., Ex. 5 (Declaration of Nancy Ellen Tyler) ("Tyler Decl.") ¶ 4. The defendant also maintains that the employee's identity will not be protected by mere redactions of the employee's name and personally identifiable information "because other information in the documents, along with information that is publicly available, could be used to identify the employee" and thus the individual's privacy interests would be harmed.Id., at 18; see id., Ex. 5 (Tyler Decl.) ¶ 7; Def.'s Reply, Ex. 10 (Pinansky Suppl. Decl.) ¶ 7. The defendant also contends that the names and personally identifiable information of other persons involved in the investigation, not just the target of the investigation, is also subject to Exemption 6, Def.'s Mem. at 18, and that no amount of redaction will conceal the identity of the individuals involved, in part because the plaintiff's requests ask for records related to certain individuals, so the production of any information would necessarily identify those individuals, Def.'s Reply at 9. The defendant states that the plaintiff's interest in the production of these records arises from "a personal desire to conduct a fishing expedition for information," and that he does not have "a legitimate public interest in any information." Def.'s Reply at 11.

The plaintiff contends that the defendant's reliance on Exemption 6 is misplaced. He maintains that the records are not the type of "personnel, medical, or similar files" governed by Exemption 6, and there has been no showing that an "unwarranted invasion of personal privacy" will result under 5 U.S.C. § 552(b)(6) from their disclosure. Pl.'s Mem. at 23. The plaintiff opines that if the identifying information was redacted from these records, any privacy intrusion would be mitigated. Id. He adds that in weighing the importance of public disclosure, it should be remembered that only if the target of the investigation is identifiable in the records is Exemption 6 applicable, and even if the target becomes identifiable after appropriate redactions are made, the public interest in disclosure still outweighs those privacy concerns because the person most likely to be the subject of the investigation (an individual the plaintiff identifies by name) personally communicated with the plaintiff and accusing the plaintiff of being a "traitor" and "unpatriotic." Id. at 25.

There appears little question that the types of files the defendant seeks to protect under Exemption 6 fall within the scope of this exemption, as they are personnel-related and their content — the investigation of alleged wrongdoing by an SEC employee — implicates "substantial privacy concerns" of the subject of the investigation. Dep't of State v. Wash. Post Co., 456 U.S. 595, 602 (1982) ("[E]xemption [6] [was] intended to cover detailed Government records on an individual which can be identified as applying to that individual." (citation and internal quotation marks omitted)). The only question then is "whether release of the information would constitute a clearly unwarranted invasion of that person's privacy." Id. The plaintiff contends that the target of the investigation (an investigation which presumably relates to feisty e-mail communications sent to the plaintiff and the then-Chairman of the SEC by one of the defendant's trial counsel) is a public employee and his communications have been published in the press.

Pl.'s Mem. at 25. That being the case, posits the plaintiff, "the public has an interest in knowing whether [that employee's] actions were in any way connected to the SEC's investigation of [the plaintiff]," in part considering that the employee's official government e-mail address was used. Id. at 25-26. The defendant responds that trial counsel referenced by the plaintiff is a non-managerial employee of the defendant, Def.'s Reply, Ex. 10 (Pinansky Suppl. Decl.) ¶ 8, and the plaintiff has not "provide[d] any reason to believe that [the employee] made any such statements in the context of conducting Commission business or that [the employee] ever worked on any matter relating to [the p]laintiff," Def.'s Reply at 12.

Against this backdrop, the Court must conclude that the public has some interest in knowing whether the defendant will take action if one of its employees, whose work is funded from the public coffers and utilized government resources to communicate with the plaintiff and the SEC Chairman, is utilizing his position to purportedly further private interests or harass private citizens. This case is not a situation where a requester is merely trying to acquire information regarding another private individual. And an important factor to bear in mind is that the defendant appears to want to have things both ways — relying on the one hand on the extensive media attention this litigation and the underlying basis for it have received as support for its position that the privacy of the investigated employee warrants non-disclosure of the documents, Def.'s Mem. at 19, while ignoring on the other hand the clear indication that the extent of the media coverage demonstrates the public interest in these matters. There is a compelling public interest in knowing whether the defendant conducts investigations free of misconduct by its employees and how alleged transgressions by its employees are addressed; the disclosure sought by the plaintiff would assuredly "shed light on an agency's performance of its statutory duties and its compliance with the law." Judicial Watch II, 102 F. Supp. 2d at 17 (citation omitted). That said, the individuals involved do have privacy interests in keeping personal details out of the public eye, which is the impetus for Exemption 6, but that is also why redaction is used as a safeguard in such situations.

While these are the competing interests that are at play, the concern for the Court is not whether Exemption 6 applies to information contained within these records, because even on the scant representations of the defendant it would seem to apply to portions of the record, see Def.'s Mem., Ex. 3 (Hall Decl.) ¶ 12; id., Ex. 4 (Pinansky Decl.) ¶ 6; id., Ex. 5 (Tyler Decl.) ¶ 6, but whether the public interest favors disclosure of some parts of the records. And that balancing cannot be properly conducted based upon the vague assertions provided by the defendant, as greater detail concerning the content of each record is needed to determine whether that information is exempted from disclosure. This particularized examination is required because Exemption 6 is not one of the exemptions that inherently shields records in their entirety, see, e.g., Billington v. U.S. Dep't of Justice, 233 F.3d 581, 586 (D.C. Cir. 2000) (remanding for a segregability determination concerning records over which the agency claimed Exemption 6 protection), and information that does not pertain just to any individuals involved in an investigation, but rather to the logistics of an investigation (such as routing numbers, dates, stock types involved, and event dates), which the defendant acknowledges is included in these records,see Def.'s Mem., Ex. 3 (Hall Decl.) ¶¶ 7-12, is not protected from disclosure, see Billington, 233 F.3d at 586 (remanding for inquiry as to whether Exemption 6 applied to the records in their entirety because it was "uncertain that personal identifying information so permeates the document that no part of it can be released"). The defendant thus far only speculates that "[d]isclosure of such information [as is contained in records 1-77] could amount to an invasion of privacy of the individuals identified," id., Tyler Decl. ¶ 5 (emphasis added), but the defendant,

who carries the burden, must do more than that to demonstrate a "clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6).

Therefore, with respect to records 78-80, while the Court again does not dispute that the names of the individuals involved in the investigations, as well as their contact information may be withheld for privacy reasons, the defendant has failed to establish that the withheld records contain exclusively such information, or that no other information in the records can be segregated from the personally identifying information in order that redacted disclosures can be made. Upon the representations currently before the Court, the only conclusion the Court can reach in light of the presumption in favor of disclosure is that redacted versions of the records must be disclosed.

4. Exemption 7(A)

Under the FOIA, agencies are authorized to withhold "records of information compiled for law enforcement purposes, but only to the extent that production of such law enforcement records or information could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). In order to justify the withholding of records an agency must show that (1) a law enforcement proceeding for which the records were compiled is pending or reasonably prospective and (2) that the release of the information could reasonably be expected to cause some articulable harm. In crafting this Exemption, "Congress recognized that law enforcement agencies had legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigation or placed at a disadvantage when it came time to present their cases." Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309, 313 (D.C. Cir. 1988) (quoting NLRB v. Robbins Tire Rubber Co., 437 U.S. 214, 224 (1978)). Nonetheless, this exemption is not meant to be a "blanket exemption" for any files or records that are relevant to an investigation — their disclosure must be reasonably expected to interfere in a "palpable, particular way" with the investigation. North v. Walsh, 881 F.2d 1088, 1100 (D.C. Cir. 1989). And a document that is merely "useful" to a requester who is (or was) the subject of an investigation is insufficient to merit disclosure under the FOIA. Id. at 1099-1100.

The defendant maintains that documents 9 and 16-18 are exempt from disclosure pursuant to Exemption 7(A). See Def.'s Reply, Ex. 9. According to the Vaughn index, these records consist of e-mails between employees of the defendant related to employment leave requests, an internal investigation, and a recommendation for employee discipline.Id. The defendant contends that it is justified in withholding these records because they derive from "the Division of Enforcement's and the OIG's active and ongoing investigations." Def.'s Mem. at 21;see also id., Ex. 6 (Riewe Decl.) ¶¶ 5-11;id., Ex. 7 (Declaration of Noelle L. Frangipane) ("Frangipane Decl.") (Frangipane Decl.) ¶ 11. The defendant has categorized the records and describes generally how disclosure of each category could cause harm to the defendant's investigatory interests. Id., Ex. 7 (Frangipane Decl.) ¶ 9.

The plaintiff counters that the defendant has not carried its burden under Exemption 7(A) because an internal audit of the defendant's practices concluded that the defendant overuses Exemption 7(A) to withhold records from FOIA requesters. Pl.'s Mem. at 29. The plaintiff contends that the categories of the withheld documents designated by the defendant are arbitrary, overbroad, and lack the requisite specificity to warrant their non-production. Id. at 33. The plaintiff asserts that the defendant has not sufficiently articulated "any potential nexus between disclosure and any potential harm to an enforcement proceeding" sufficient to justify the withholding of records in their entirety. Id. at 34. Finally, the plaintiff contends that because the defendant produced documents related to him during the discovery process in ongoing litigation between the parties in Texas, see SEC v. Cuban, 634 F. Supp. 2d 713 (N.D. Tex. 2009), but those same documents have not been produced to him in this FOIA litigation based on the defendant's claim that all records related to the plaintiff are shielded from production by 7(A), the defendant's claims of accurate processing and its reliance on Exemption 7(A) "are, at a minimum, incorrect and unreliable" and therefore must be rejected. Pl.'s Reply at 20-23.

Exemption 7(A) only justifies withholding records compiled for law enforcement purposes for a limited time while an investigation is ongoing. 5 U.S.C. § 552(b)(7)(A). And it is with respect to Exemption 7(A) that the defendant makes its most detailed submission in support of its non-production of responsive records. Whatever the merits to the plaintiff's assertions that the defendant has in the past overused its reliance on Exemption 7(A), it cannot be assumed that such past practice casts doubt upon its reliance on Exemption 7(A) in this case. It also cannot be concluded, as the plaintiff urges, that because records produced in the Texas litigation might be the same records as those that were not produced here renders the defendant's reliance on Exemption 7(A) irrational. As the Court indicated in its earlier discussion regarding the adequacy of the defendant's search, the law is clear that an agency's search "need not be perfect, only adequate, and adequacy is measured by the reasonableness of the effort in light of the [plaintiff's] specific request," Meeropol, 790 F.2d at 956. The Court therefore declines to reject the defendant's reliance on Exemption 7(A) because it may be the case that records, which may or may not be part of the defendant's investigatory file, were not produced. To do otherwise would result in the Court acting on pure speculation, which obviously it cannot do.

Indeed, the Court finds that because the investigation is ongoing Exemption 7(A) may be properly relied upon by the defendant to withhold records 9 and 16-18; the defendant's showing is sufficient even though it has not specifically described the basis for the non-disclosure in each instance, because extensive specificity is not required for Exemption 7(A) where providing such detail would undermine the precise reason for the non-disclosure. Juarez v. Dep't of Justice, 518 F.3d 54, 59 (D.C. Cir. 2008) ("`the release of information in investigatory files prior to the completion of an actual, contemplated enforcement proceeding was precisely the kind of interference that Congress continued to want to protect against'" in approving Exemption 7(A) (quoting NLRB v. Robbins Tire Rubber Co., 437 U.S. 214, 236 (1978))). The defendant has therefore described in sufficient detail the nature of the records it has withheld and the harm that could befall the agency if these records are prematurely released. See Def.'s Mem., Ex. 6 (Riewe Decl.) ¶¶ 7-12; id. Ex. 7 (Frangipane Decl.) ¶ 9. The Court also accepts the defendant's representations that release of the records 9 and 16-18 might reveal its investigative strategy and findings concerning the investigation before they are finalized. However, this justification for withholding the records is only temporary and the defendant must be prepared to make a continuing showing to justify its continued withholding of the Exemption 7(A) records in full.

5. Exemption 7(C)

Exemption 7(C) is designed to protect the personal privacy interests of individuals named or identified in "records or information compiled for law enforcement purposes," to the extent that their disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C); see also U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 756 (1989). In order to determine whether a withholding by an agency is proper, an individual's right to privacy must be weighed against the public's right to disclosure.Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1115 (D.C. Cir. 2007); Davis v. Dep't of Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992). Where a legitimate privacy interest is implicated, the requester must "[(1)] show that the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake, and [(2)] show the information is likely to advance that interest." Nat'l Archives Records Admin. v. Favish, 541 U.S. 157, 158 (2004).

It bears noting that while similar, the reach of the privacy interest protected under Exemption 7(C) is much broader that the reach of Exemption 6. See Nat'l Archives Records Admin. v. Favish, 541 U.S. 157, 165-66 (2004) ("This provision [of Exemption 7(C)] is in marked contrast to the language in Exemption 6, pertaining to `personnel and medical files, where withholding is required only if disclosure would constitute a clearly unwarranted invasion of personal privacy.' The adverb `clearly,' found in Exemption 6, is not used in Exemption 7(C). In addition, `whereas Exemption 6 refers to disclosures that would constitute an invasion of privacy,' Exemption 7(C) encompasses any disclosure that `could reasonably be expected to constitute such an invasion.'" (citations and internal quotation marks omitted)).

Stated in alternative terms: "[W]hether disclosure of a private document under Exemption 7(C) is warranted must turn on the nature of the requested document and its relationship to `the basic purpose of the Freedom of Information Act to open agency action to the light of public scrutiny,' rather than on the particular purpose for which the document is being requested." Reporters Comm., 489 U.S. at 772 (citation and internal quotation marks omitted). And that purpose cannot have as its objective use of the FOIA as a means for a requester to spy on another private citizen; rather, the request must have the objective of obtaining a response that "sheds light on the conduct of [a] Government agency or official." Id. at 773. Thus, a request that seeks "information that would explain how the disciplinary procedures actually functioned" is permissible, id., but a request seeking information regarding "private citizens that happens to be in the warehouse of the Government," such as one's criminal history, is not the proper subject for a FOIA request. Id. at 774.

The defendant maintains that documents 9, 16-18, and 78-80 are exempt from disclosure pursuant to Exemption 7(C). See Def.'s Reply, Ex. 9. These records consist of e-mails authored by employees of the defendant concerning employment leave requests, an internal agency investigation, and a recommendation for employee discipline. Id. According to the defendant, it has properly withheld these records pursuant to Exemption 7(C) because the records are "law enforcement records, either from an OIG investigation or from a securities enforcement investigation," and the privacy interests of the persons involved outweigh any interest in public disclosure of the records. Def.'s Mem. at 21. According to the defendant's declarant, the Deputy Inspector General in the Office of Inspector General of the Securities and Exchange Commission, who is familiar with these records, the internal SEC e-mail communications were withheld because their disclosure could interfere with an ongoing investigation by informing someone external to the investigation of the identity of individuals who have been interviewed, what documents have been requested, what sources of information exist, and what information the agency considers relevant to the investigation. Def.'s Mem., Ex. 7 (Frangipane Decl.) ¶ 9(B). The declarant states that records 9 and 16-18 were withheld because they contain information related to an ongoing OIG investigation into internal misconduct by SEC employees. Id. ¶ 11.

Records 9 and 16-18 do not relate to an investigation conducted by the Office of Human Resources. Def.'s Reply, Ex. 11 (Tyler Suppl. Decl.) ¶ 4.

The plaintiff contends that the defendant's reliance on Exemption 7(C) to withhold these records in their entirety is improper because it has not shown that its investigation includes anything other than ordinary monitoring of its employees, Pl.'s Mem. at 28, nor has the defendant established that any resulting invasion of privacy is "clearly unwarranted" when balanced against the public interest as required by 5 U.S.C. § 552(b)(6), Pl.'s Reply at 18. The plaintiff further contends that the defendant has not made a showing that any information in the records exempt from disclosure under Exemption 7(C) cannot be segregated from the remainder of the records. Pl.'s Mem. at 28.

The first point to consider is that the request in this case involves one individual seeking records regarding another individual. But what distinguishes the facts in this case from those in Reporters Committee, where a requester sought the disclosure of the rap-sheet (the criminal record) of another private individual, 489 U.S. at 751, and the Supreme Court concluded the privacy interest under Exemption 7(C) in such circumstances "is in fact at its apex," 489 U.S. at 780, is that the subject of the plaintiff's request there was not a government official who allegedly committed improper acts while performing his official duties. Here, the subject of the plaintiff's FOIA request is a government employee who, if the plaintiff's allegations are correct, was utilizing the government e-mail system to harass the plaintiff. Pl.'s Mem. at 25. Accordingly, here, disclosing the information sought by the plaintiff could accord him and the public in general insight into how the defendant addresses allegations of employee misconduct and misuse of government resources, information of unquestionablex public interest. However, it is equally clear that the identities of the subject of the investigation and those involved in the investigative process is not nearly as significant as the actions (or lack thereof) taken by the defendant, and the disclosure of the identities of these individuals would likely compromise their privacy interests.Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1491 (D.C. Cir. 1984) (holding that the names of cooperators, investigators, and other "`third persons mentioned in the documents'" were properly withheld under Exemption 7(C) (citation omitted)). But even if the Court accepts the defendant's representations that the identify of persons connected with the investigation should not be disclosed for the reasons the defendant offers, Def.'s Mem., Ex. 7 (Frangipane Decl.) ¶ 9(B), including "the stigma of being associated with any law enforcement investigation," Amuso v. U.S. Dep't of Justice, 600 F. Supp. 2d 78, 97 (D.D.C. 2009) (citing Reporters Comm., 489 U.S. at 773-75), the issue of whether Exemption 7(C) has been properly relied upon can not yet be resolved on the existing record.

Simply, the defendant has not justified withholding the remainder of the information likely contained in the records. Nothing in the defendant's proffer assists the Court in assessing why redacting the names and any other identifying characteristics of the persons involved in the OIG investigations will not adequately protect the privacy interests at stake, a finding that the Court must be able to make to sanction a complete withholding. See Stolt-Nielsen Transp. Grp. Ltd., 534 F.3d at 734 (indicating that the district court must pass on the question of the segregability of the records withheld). The defendant's representation that its reliance on Exemption 7(C) is justified are not convincing, and how the Exemption applies to records 9 and 16-18 is addressed in only one short paragraph in the Deputy Inspector General's statement. The Court is essentially left to rely on the vague descriptions provided in the Vaughn index, which are nothing more than conclusory. On these submissions, the defendant has not met its burden of providing the Court with information from which it can confidently conclude that the privacy rights of the individuals referenced in the records can be protected only by the non-production of all of the records in their entirety, when weighed against the public's right to disclosure.

C. The Privacy Act

The Privacy Act authorizes individuals to bring suit to challenge an agency's refusal "to comply with an individual request" for the production of records concerning the requester. 5 U.S.C. § 552a(b), (g)(1). The defendant's Privacy Act regulations require an agency to either grant or deny access to the record(s) requested "within 30 days," and if a request is denied, to communicate that denial to the requester. 17 C.F.R. § 200.304(c)-(d) (2007).

The defendant contends that the plaintiff "has no right of access to the documents he seeks under the Privacy Act" because they are investigative records exempt from disclosure pursuant to 17 C.F.R. § 200.313, and therefore the defendant did not waive its right to withhold the records even if it failed to respond to the plaintiff's request.See Def.'s Mem. at 33; Def.'s Reply at 17. The plaintiff responds that because the defendant "never acknowledged [his] Privacy Act request, never responded to his Privacy Act request, never informed him that access to his records under the Privacy Act was denied or why access was denied, and never advised him of his right to appeal the SEC's denial of access," it cannot now for the first time and in the midst of litigation raise its objections to production of the records requested. Pl.'s Mem. at 37. Because the plaintiff contends that the defendant's objection to production was untimely and therefore waived, he asks the Court to compel the defendant's compliance.

While it does appear that the defendant's compliance with the Privacy Act was less than clear, the defendant did state that it was withholding records responsive to the categories that the plaintiff sought in his request letter pursuant to the FOIA and the Privacy Act, see, e.g., Def.'s Mem., Ex. 1 (Winter Decl.), Attach. D (Feb. 5, 2009 Letter from Mark P. Siford to David Ross) at 1 (indicating the defendant was withholding records responsive to categories 2 ("[r]ecords which mention or relate to Mr. Cuban") and 5 ("[r]ecords relating to Mr. Cuban's Wells Submission dated September 21, 2007") of the plaintiff's Request Letter II). Although the Court does not condone evolving positions seemingly formulated during the course of litigation that surprises the opponent, given the state of the record the defendant's position does not appear to vary materially from its original stance taken during the administrative process. Thus, even though it appears that the defendant did not explicitly rely upon 17 C.F.R. § 200.313, as it now does, the agency is nonetheless entitled to refine its position. See Barnard v. Dep't of Homeland Sec., 598 F. Supp. 2d 1, 25 n. 16 (D.D.C. 2009) ("there is no requirement that an agency administratively invoke [a Privacy Act] exemption in order to later rely on it in federal court");accord Young v. CIA, 972 F.2d 536, 538 (4th Cir. 1992) ("[A]n agency does not waive FOIA exemptions by not raising them during the administrative process."). The Court will therefore consider the merits of any future challenges raised by the plaintiff to the defendant's assertion that a withholding of records is sanctioned by the Privacy Act.

D. The Defendant's Request to Bifurcate and Stay the Plaintiff's Remaining Three Requests

Under the FOIA, an agency receiving a request must determine whether to comply with the request within 20 working days. See 5 U.S.C. § 552(a)(6)(A)(i). The Court may, however, "allow the agency additional time to complete its review of the records" upon a showing that "exceptional circumstances exist and that the agency is exercising due diligence in responding to the request." § 552(a)(6)(C)(i). The defendant here seeks three additional years to respond to the plaintiff's request, which involves the review of 107 boxes of documents. Def.'s Mot. to Stay at 2. The plaintiff, understandably, takes the position that the request for a three-year stay is unreasonable and unsupported by the record. Pl.'s Opp'n to Stay at 2.

The defendant has explained in great detail the extent of the demands it is experiencing responding to the plaintiff's requests and requests like it from other requesters. See generally Def.'s Mot. to Stay, Ex. 1 (Declaration of Margaret Celia Winter). Those demands include thousands of requests and the resultant review of large volumes of documents, a task divided among roughly only two dozen SEC employees and forty "FOIA Liaisons within the agency's various offices and divisions." Id. ¶¶ 6-11, 21. Requests are generally responded on a first-in, first-out track. Id. ¶¶ 14-15. Despite these representations, three years is an extraordinarily long period of time for the plaintiff to await the production of all records responsive to his FOIA request. Also, given the time that has elapsed since this case was initiated (over fifteen months ago) and when the defendant's motion to stay was filed (over seven months ago); the significant progress the defendant represents it has made over the past several years in improving its response time to FOIA requests; and the fact that the defendant's response time hinges, at least in part, on the duration of other litigation that may or may not remain active, id. ¶¶ 53-58, the Court will deny the defendant's motionwithout prejudice and conduct a status conference to assess the current status of the defendant's processing of the plaintiff's requests to determine whether granting the defendant additional time to fulfill its statutory obligation is appropriate. Also at that hearing, the defendant should be prepared to present witnesses associated with the ongoing investigation that provides the basis for its withholding of records under Exemption 7(A) of the FOIA. If the investigation is still active, then the defendant must submit proof that another exemption applies that justifies the complete withholding of records 9 and 16-18. The Court further anticipates setting a timeline for the production of the redacted records versions of these records at the hearing or entertaining alternative proposals from the parties for expeditiously advancing this case to its final resolution.

In the event the defendant seeks reconsideration of any ruling in this Opinion with respect to the records not yet produced, and proffers additional declarations or other evidence upon which its position is based, the following observations are noted. As the Court has indicated throughout this Opinion, most of the defendant's representations were extremely limited, vague, and conclusory as to its reliance on Exemptions 2, 5 (with respect to the attorney-client privilege, the deliberative process privilege, and the attorney work-product doctrine), 6, 7(A) and 7(C), and it was the defendant's failure to provide proper justification for its withholding of records that resulted in summary judgment being partially entered for the plaintiff. For example, while two declarations submitted with respect to the adequacy of the defendant's search (an issue on which theplaintiff bore the burden of proving unreasonable) contained 157 paragraphs and 18 paragraphs respectively, the defendant's declarations with respect to the applicability of the multiple exemptions to the 80 different records listed in its Vaughn index (issues on which the defendant bore the burden to prove) ranged from 4 to 13 paragraphs (paragraphs that were frequently only a sentence or two in length, inclusive of the necessary foundational information relating to the declarant's employment status and competency). It was upon these minimally supported declarations that the defendant relied to satisfy its burden. In no way is the Court indicating that the defendant must bury the Court and the plaintiff in paper and finite detail to justify its invocation of a FOIA exemption. At the same time, however, the defendant can hardly expect to meet its burden with abbreviated and uninformative information that precludes the Court from independently evaluating the merits of the defendant's positions. In many cases the defendant chose to merely group together multiple documents into general subject areas and universally asserted the applicability of exemptions to those records, rather than distinguishing the content of specific records, which is necessary to establish that redactions are unwarranted or impossible. The purpose for requiring a Vaughn index is to provide courts with more than just "conclusory and generalized allegations of exemptions," Campaign for Responsible Transplantation v. Food Drug Admin., 511 F.3d 187, 196 (D.C. Cir. 2007) (citation omitted), because "a withholding agency must supply 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." Krikorian v. Dep't of State, 984 F.2d 461, 467 (D.C. Cir. 1993) (emphasis in original) (citation and internal quotation marks omitted). The defendant must simply put more effort into its submission to convince the Court that it is entitled to the relief it seeks.
It is also worth noting that while the Court at this juncture is declining to conduct in camera review of disputed records, it may in the future decide that such review is necessary. In camera review is unnecessary at this point not because the Court can make a determination on whether the records can be released based on the descriptions provided, but because most of the defendant's descriptions are woefully inadequate. And the Court cannot permit an agency to transfer the burden of conducting the review of these records to the Court by providing inadequate descriptions of the records; that is the defendant's responsibility. It is only those situations where descriptions provided by the agency are as detailed as possible, but nonetheless fail to provide the Court with sufficient information upon which to base its determinations, when in camera review should be exercised. See id. ("We therefore leave it to the district court to determine on remand whether more detailed affidavits are appropriate or whether an alternative such as in camera review would better strike the balance between protecting sensitive foreign relations information and disclosing non-exempt information as required by the FOIA.")

IV. CONCLUSION

For the foregoing reasons, the Court finds that both parties' cross-motions for summary judgment must be granted in part and denied in part. Specifically, the Court finds that the defendant's search for records responsive to categories 7, 11, 12, and 13 of Request Letter I was inadequate. Also, the defendant's reliance on Exemptions 2 and 6 to withhold records 78-80, and Exemption 7(C) to withhold records 9, 16-18, and 78-80, is not sufficiently substantiated to meet its burden to withhold these records in their entity. The same is tr+ue in regard to the assertion of Exemption 5. The defendant has also failed to satisfy its burden of showing that records 11, 13, 21, 25-26, 29, 32, 34-35, 37, 39, 41-44, 53, 55, 57 59, and 61-63 may be withheld under the attorney-client privilege; records 1-3, 9, 11, 13-15, 17, 19, 21-22, 25-29, 32-35, 37-46, 48-57, 59-64, 69, 71, and 73-76 may be withheld under deliberative process protection; or records 10-11, 13-15, 18-29, 31-46, 48-64, and 77 may be withheld under the attorney work-product privilege. On the other hand, the Court finds that the defendant has established that records 9 and 16-18 may be withheld under Exemption 7(A) during the pendency of the ongoing investigation; however, given the passage of time since that exemption was first invoked, at the hearing the Court will conduct in this matter the defendant should be prepared to establish by the testimony of representatives involved in the investigation whether the investigation is still ongoing, as well as the anticipated duration of the investigation. Moreover, to the extent that the Court has found that the defendant cannot rely on an exemption to withhold a record in its entirety, the defendant is obligated by the FOIA to produce a complete or redacted version of the record to the plaintiff, and must do so forthwith. Finally, the Court finds that it must deny without prejudice the defendant's motion for a three-year stay of this litigation pending its production of responsive records, and that at the hearing the Court will conduct, it will determine how much additional time, if any, the defendant is entitled to receive to complete the processing of the plaintiff's FOIA requests.

The Court will issue an Order consistent with this Memorandum Opinion.