UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NOVA OCULUS PARTNERS, LLC, et al.,

Plaintiffs,

v. No. 19-cv-666 (DLF) U.S. SECURITIES AND EXCHANGE COMMISSION,

Defendant.

MEMORANDUM OPINION

Nova Oculus Partners, LLC, Peter Pocklington, Lantson E. Eldred, and AMC Holdings

Co., LLC (collectively, Nova Oculus) bring this suit alleging that the Securities and Exchange

Commission (SEC) unlawfully withheld various records under the Freedom of Information Act,

et seq. (FOIA). Before the Court is the SEC’s Motion for Summary Judgment,

Dkt. 12, and Nova Oculus’s Cross-Motion for Summary Judgment, Dkt. 14. For the reasons that

follow, the Court will grant the SEC’s motion and deny Nova Oculus’s cross-motion.

I. BACKGROUND

Nova Oculus is a medical device company operating in California. See Compl., Dkt. 1,

¶ 4; O’Rourke Decl., Dkt. 14-2, ¶ 3. When Nova Oculus’s predecessor, Acuity Medical, Inc.

(Acuity), went bankrupt in 2015, Peter Pocklington and Lantson E. Eldred purchased the

company’s assets and founded Nova Oculus. O’Rourke Decl. ¶¶ 5, 7; see SEC v. Pocklington,

No. 18-cv-701,

at *2 (C.D. Cal. 2018). Meanwhile, Acuity’s former CEO,

Blair Mowery, and its former Chief Marketing Officer, Marshall Masko, formed a competing

company called Amerivision International, Inc. (Amerivision). O’Rourke Decl. ¶¶ 5–6. Amerivision has since engaged in years of litigation with Nova Oculus and the two companies

remain competitors to date.

.

On April 5, 2018, the SEC initiated an enforcement action against Nova Oculus in the

United States District Court for the Central District of California. James Decl., Dkt. 14-1, ¶ 2;

Ex. C. The SEC alleged, among other things, that Nova Oculus and its founders had raised

millions of dollars “while concealing the true identity of [the company’s] controlling leader,

misappropriating investor funds, and funneling undisclosed and excessive commissions to sales

agents.” Pocklington,

at *2. Publicly disclosed documents connected with

the enforcement action subsequently revealed communications between Mowery and Masko and

Kathryn Wanner, the SEC’s lead counsel in the matter. James Decl. ¶ 3;

Ex. B.

On April 30, 2018, Nova Oculus submitted a FOIA request to the SEC. See Compl. Ex.

1, Dkt. 1-5. The plaintiffs’ initial FOIA request sought “correspondence pertaining to

investigative records relating to Nova Oculus Partners, LLC,” Compl. Ex. 4, Dkt. 1-8, and a

search of the SEC’s email server for the following criteria:

1. January 1, 2013 through the present, for the e-mail address of [email protected]. 2. January 1, 2013 through the present, for the e-mail address of [email protected]. 3. January 1, 2013 through the present, for the e-mail address for [email protected]. 4. January 1, 2013 through the present, for the e-mail address for [email protected]. 5. June 2011 through June 2012, “David and Casselman” 6. January 1, 2008 through the present, “Wasserman, Comden, Casselman & Esensten” 7. January 1, 2013 through the present, “Amerivision and International”

Cozza Decl., Dkt. 13-2, ¶ 4.

2 This search turned up thousands of responsive documents.

¶¶ 8–9. On October 10,

2018, the SEC notified Nova Oculus that they were withholding all documents produced by the

search pursuant to FOIA Exemption 7(A), see Compl. Ex. 15, Dkt. 1-19, which protects records

compiled for law enforcement purposes where disclosure “could reasonably be expected to

interfere with enforcement proceedings,” 5 U.S.C. 552(b)(7)(A). The plaintiffs appealed this

withholding to the SEC, see Compl. Ex. 16, Dkt. 1-20, and the SEC’s Office of General Counsel

upheld the decision, see Compl. Ex. 17, Dkt. 1-21.

On March 8, 2019, the plaintiffs filed their complaint in the instant action challenging the

SEC’s decision. See Compl. The next month, while this litigation was still pending, “the SEC

determined it was no longer necessary to withhold the requested documents under Exemption

7(A).” Cozza Decl. ¶ 7. The SEC’s Office of General Counsel then worked with the plaintiffs’

counsel to further narrow the search criteria since the initial search produced many documents

unrelated to the Nova Oculus investigation.

. The parties agreed to narrow the search to

the following search terms:

1. [email protected]; 2. [email protected]; 3. [email protected]; 4. [email protected]; 5. “Wasserman, Comden, Casselman & Esensten” and (“Nova Oculus” or “Eye Machine” or Pocklington or Eldred or “AMC Holdings”); 6. Amerivision and (“Nova Oculus” or “Eye Machine” or Pocklington or Eldred or “AMC Holdings”); and 7. Casselman and (“Nova Oculus” or “Eye Machine” or Pocklington or Eldred or “AMC Holdings”).

After receiving Nova Oculus’s consent to remove any documents that did not pertain to

the SEC’s investigation of Nova Oculus, the SEC produced 3,883 pages of documents in

3 response to Nova Oculus’s amended search, many of them redacted in full or in part.

¶¶ 11–

12. The SEC withheld various documents under FOIA Exemption 5, which protects “documents

that would normally be privileged in the civil discovery context.” Lewis v. U.S. Dep’t of the

Treasury, No. 17-cv-943,

at *6 (D.D.C. 2020). Under the attorney work-

product privilege, the SEC withheld: (1) “[e]mails, or portions of emails, about drafting and

filing a complaint in the Nova Oculus enforcement case, along with many versions of a draft

complaint”; (2) “[e]mails about litigation in SEC enforcement cases other than Nova Oculus”;

and (3) “[e]mails about steps being taken in the Nova Oculus investigation.” Cozza Decl. ¶ 16.

Under the attorney-client privilege, the SEC withheld part of one “email from the Office of

FOIA Services to an [Office of General Counsel] attorney . . . seeking legal advice.” Def.’s

Vaughn Index, Dkt. 13-3, No. 29; Cozza Decl. ¶ 26. Under the deliberative process privilege,

the SEC withheld: (1) “[e]mails, or portions of emails, about drafting and filing a complaint in

the Nova Oculus enforcement case, along with many versions of a draft complaint”; (2)

“[e]mails about litigation in SEC enforcement cases other than Nova Oculus”; (3) “[e]mails

about steps being taken in the Nova Oculus investigation”; and (4) “[e]mails about the

processing of and proposed responses to the Plaintiffs’ FOIA request.” Cozza Decl. ¶ 20.

The SEC partially withheld various documents under FOIA Exemption 7(C), which

“protects information compiled for law enforcement purposes that could reasonably be expected

to constitute an unwarranted invasion of personal privacy,” Elec. Frontier Found. v. DOJ,

(D.D.C. 2019) (internal quotation marks omitted), and FOIA Exemption 6, which

“protects personnel and medical files and similar files the disclosure of which would constitute a

clearly unwarranted invasion of personal privacy,”

(internal quotation marks omitted). Citing

both exemptions, the SEC withheld portions of responsive documents containing:

4 (1) “[i]dentifying information relating to persons, other than defendants in the SEC’s

enforcement action, who were being investigated or providing information in connection with

the investigation”; (2) “[i]dentifying information relating to SEC employees and staff who

worked on matters relating to an SEC investigation or litigation, except to the extent the

information was provided on filings in the SEC’s enforcement action”; (3) “[i]dentifying

information regarding a staff member in a foreign securities agency”; and (4) “[t]he email

address of a defendant.” Cozza Decl. ¶ 28. Citing Exemption 6 alone, the SEC additionally

withheld: (1) “[i]dentifying information for SEC staff involved in processing Plaintiffs’ FOIA

request”; and (2) “[i]nformation regarding an employee’s unavailability.” Id. ¶ 31.

In addition to the above partially-withheld documents, the SEC also withheld 672 pages

of documents in full pursuant to Exemptions 6 and 7(C) where “the documents referred to

individuals named in the FOIA request, and withholding the documents in full was the only way

to protect information about individuals’ potential involvement in a law enforcement

investigation.” Id. ¶ 35. SEC staff reviewed these 672 pages of documents and determined that

there was no way to segregate non-exempt information without revealing the nature of the

individuals’ involvement in the SEC’s enforcement matter. Id. ¶ 40.

On September 13, 2019, the SEC filed its Motion for Summary Judgment. Dkt. 12. On

October 4, 2019, Nova Oculus filed its Cross-Motion for Summary Judgment. Dkt 14. Both

motions are now ripe for decision.

II. LEGAL STANDARDS

Rule 56 of the Federal Rules of Civil Procedure mandates that “[t]he court shall grant

summary judgment 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). When a

5 federal agency moves for summary judgment in a FOIA case, the court views all facts and

inferences in the light most favorable to the requester, and the agency bears the burden of

showing that it complied with FOIA. Chambers v. U.S. Dep’t of Interior,

(D.C. Cir. 2009).

To prevail under Rule 56, a federal agency “must prove that each document that falls

within the class requested either has been produced, is unidentifiable, or is wholly exempt from

the [FOIA’s] inspection requirements.” Perry v. Block,

(D.C. Cir. 1982) (per

curiam) (internal quotation marks omitted). The agency “must show beyond material doubt . . .

that it has conducted a search reasonably calculated to uncover all relevant documents,”

Weisberg v. DOJ,

(D.C. Cir. 1983) (internal quotation marks omitted), and

must also explain why any of the nine enumerated exemptions listed in

(b) apply

to withheld information, Judicial Watch, Inc. v. Food & Drug Admin,

(D.C.

Cir. 2006); see also Mobley v. CIA,

(D.C. Cir. 2015) (agency bears burden of

justifying application of exemptions, “which are exclusive and must be narrowly construed”).

“The peculiarities inherent in FOIA litigation, with the responding agencies often in sole

possession of requested records and with information searches conducted only by agency

personnel, have led federal courts to rely on government affidavits to determine whether the

statutory obligations of the FOIA have been met.” Perry,

. Agency affidavits are

entitled to a presumption of good faith, see SafeCard Servs. v. SEC,

(D.C.

Cir. 1991), and a court may grant summary judgment based on an affidavit if it contains

reasonably specific detail and neither contradictory record evidence nor evidence of bad faith

calls it into question, see Judicial Watch, Inc. v. U.S. Secret Serv.,

(D.C. Cir.

6 2013). The “vast majority of FOIA cases can be resolved on summary judgment.” Brayton v.

Office of the U.S. Trade Representative,

(D.C. Cir. 2011).

III. ANALYSIS

Nova Oculus does not challenge the adequacy of the SEC’s search. The parties dispute

only whether the SEC properly withheld and redacted records pursuant to FOIA Exemptions 5,

6, and 7(C). As explained below, the SEC properly invoked these Exemptions to withhold and

redact records responsive to Nova Oculus’s FOIA request.

A. Exemptions 6 and 7(C)

“FOIA Exemptions 6 and 7(C) seek to protect the privacy of individuals identified in

certain agency records.” ACLU v. DOJ,

(D.C. Cir. 2011). Exemption 6 protects

“personnel and medical files and similar files the disclosure of which would constitute a clearly

unwarranted invasion of personal privacy,”

(b)(6), and Exemption 7(C) protects

“records or information compiled for law enforcement purposes” that “could reasonably be

expected to constitute an unwarranted invasion of personal privacy,”

§ 552(b)(7)(C). When

an agency invokes both exemptions, courts “focus” on Exemption 7(C) because it “establishes a

lower bar for withholding material.” Citizens for Responsibility & Ethics in Washington v. DOJ ,

, 1091 n.2 (D.C. Cir. 2014) (CREW I) (internal quotation marks omitted). The

SEC withheld the following records under both Exemption 6 and Exemption 7(C):

(1) identifying information relating to persons, other than defendants in the SEC’s enforcement

action, who were being investigated or providing information in connection with the

investigation; (2) identifying information relating to SEC employees and staff who worked on

matters relating to an SEC investigation or litigation, except to the extent that the information

7 was provided in public filings; (3) identifying information regarding an employee of a foreign

securities agency; and (4) a defendant’s email address. Cozza Decl. ¶ 28.

Under Exemption 7(C), courts balance the privacy interests implicated by the records

being sought against the public’s interest in their disclosure. Citizens for Responsibility & Ethics

in Washington v. DOJ,

(D.C. Cir. 2017) (CREW II). The government “must

account for the privacy interests at stake, recognizing that previous disclosures or admissions

may have diminished those interests.”

. But if the withheld information implicates a

substantial privacy interest, the FOIA requester “bears the burden of showing (1) 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) that the information [it] seeks ‘is likely to advance that

interest.’” Roth v. DOJ,

(D.C. Cir. 2011) (quoting Nat’l Archives &

Records Admin. v. Favish,

(2004)). It is well established that “the only public

interest relevant for purposes of Exemption 7(C) is one that focuses on the citizens’ right to be

informed about what their government is up to.” Sussman v. U.S. Marshals Serv.,

(D.C. Cir. 2007) (internal quotation marks omitted).

The individuals involved in the SEC’s investigation of Nova Oculus have substantial

privacy interests in the documents withheld under Exemption 7(C). See, e.g., Amuso v. Dep’t of

Justice,

(D.D.C. 2009) (“individuals involved in law enforcement

investigations” have a “substantial interest” in “the nondisclosure of their identities and

connection to a particular investigation”). Names of private individuals in law enforcement files

are ordinarily exempt from disclosure absent “compelling evidence that the agency is engaged in

illegal activity.” SafeCard Servs. v. SEC,

(D.C. Cir. 1991). But individuals

who have already been “implicated in connection with [an] investigation . . . have a diminished

8 privacy interest” in the information contained in investigative documents. CREW II,

.

Nova Oculus argues that Mowery and Masko have only minimal privacy interests against

disclosure of the records at issue because their names have already been publicly linked to the

SEC’s investigation of Nova Oculus. See James Decl., Exs. A, B. But the fact that the

individuals’ identities have been disclosed does not destroy their privacy interests in the nature

of their involvement in the SEC enforcement matter, as opposed to the mere fact of that

involvement. See CREW I,

(recognizing a “second, distinct privacy interest in

the contents of the investigative files” (emphasis in original)). In other words, the fact that the

individuals’ identities have been publicly connected with a law enforcement matter does not

“waive all [] interest in keeping the contents of the [investigative] file[s] confidential” because

those individuals still have a “privacy interest . . . in avoiding disclosure of the details of the

investigation.” Kimberlin v. DOJ,

(D.C. Cir. 1998). Courts must therefore

consider whether, for example, “a responsive document could reveal new information about a

person’s conduct, going beyond the facts in the public record” regarding that person’s

involvement with law enforcement. CREW II,

. If disclosure of the records

sought could in fact reveal additional, not-yet-public information, the relevant privacy interests

are more likely to outweigh the public interest.

And that is precisely the case here. While

Mowery and Masko no longer have any privacy interest in the fact of their involvement in the

SEC enforcement matter against Nova Oculus, the identifying emails that have already been

publicly disclosed do not reveal anything about the nature of their involvement in the matter.

See James Decl., Exs. A, B. Therefore, they maintain substantial privacy interests in the contents

of the investigative files on that basis. See Kimberlin,

.

9 Moreover, Nova Oculus fails to articulate a compelling public interest in favor of

disclosure of the withheld documents. Nova Oculus alleges government impropriety in the form

of “an apparent illegal quid pro quo” based on an email sent from Mowery to Kathryn Wanner,

the SEC’s lead investigator in the Nova Oculus matter. But where “the public interest being

asserted is to show that responsible officials acted negligently or otherwise improperly in the

performance of their duties, the requester must establish more than a bare suspicion in order to

obtain disclosure.” Favish,

. In this case, Nova Oculus’s allegation of a quid pro

quo is based entirely on Mowery’s courtesy email to Wanner. See James Decl., Ex. A (“Thank

you so much for your phone call. I sent a lot of information . . . and am attaching some of the

same. . . . Thanks for your help.”). This email does not “establish more than a bare suspicion” of

impropriety, Favish,

, and it in no way suggests that the SEC accepted an

improper benefit or otherwise acted improperly in pursuing an enforcement action against Nova

Oculus. Even if Mowery himself acted in self-interest by offering information to the government

about a competitor, nothing in the record supports the inference that the SEC did anything other

than enforce the law. In short, Nova Oculus’s unsupported allegation of a putative quid pro quo

is not a public interest that outweighs the privacy interests of Mowery and Masko.

The SEC’s decision to withhold documents under Exemption 6 is also supported by the

record. The SEC relied on Exemption 6 to withhold identifying information for SEC staff

involved in processing Nova Oculus’s FOIA request, as well as information regarding one

employee’s unavailability. Cozza Decl. ¶ 31. As the SEC explained, SEC employees “have a

privacy interest in their identifying information and information about their personal lives so that

it is not available to individuals who might be dissatisfied with the employees’ work and thus

could seek to contact and/or criticize them.” Id. ¶ 33. No public interest is served by disclosure

10 of the “names, email and/or mailing addresses, titles, phone numbers, and other personal

information” of the employees working on the plaintiffs’ FOIA request. Id. ¶ 32. The public

does not learn anything about “what [its] government is up to” by gaining access to “information

about private citizens that is accumulated in various governmental files but that reveals little or

nothing about an agency’s own conduct.” DOJ v. Reporters Comm. For Freedom of Press,

(1989) (internal quotation marks omitted). Therefore, the SEC properly invoked

Exemption 6 to protect the privacy interests of the staff who processed Nova Oculus’s request.

Finally, the SEC has satisfied its segregability obligations. FOIA requires that “[a]ny

reasonably segregable portion of a record shall be provided to any person requesting such record

after deletion of the portions which are exempt.”

(b). An agency may satisfy its

segregability obligations by “(1) providing a Vaughn index that adequately describes each

withheld document and the exemption under which it was withheld; and (2) submitting a

declaration attesting that the agency released all segregable material.” Nat’l Sec. Counselors v.

CIA,

(D.D.C. 2013). The segregability requirement does not apply to

non-exempt material that is “inextricably intertwined” with exempt material, Mead Data Cent.,

Inc. v. Dep’t of the Air Force,

(D.C. Cir. 1977), and agencies are entitled to a

presumption that they disclosed all reasonably segregable material, Sussman,

.

The SEC submitted a Vaughn index outlining which documents were withheld under which

exemptions, as well as the basis for withholding each. See Def.’s Vaughn Index. The SEC also

submitted the declaration of Carin Cozza, a senior attorney in the SEC’s Office of General

Counsel, Cozza Decl. ¶ 1, representing that SEC staff reviewed all responsive documents and

“disclosed all portions of the documents that it reasonably foresees could be disclosed without

11 causing harm,” id. ¶¶ 12, 27. Together, these documents satisfied the SEC’s segregability

obligations. See Nat’l Sec. Counselors,

.

In the declaration, Cozza explained that 672 pages of documents were withheld in full

under Exemptions 6 and 7(C) because “withholding the documents in full was the only way to

protect information about individuals’ potential involvement in a law enforcement

investigation.” Id. ¶ 35. Cozza further explained that the documents withheld in full “refer to

individuals [Mowery and Masko] whose email addresses were provided as search terms” in the

plaintiffs’ FOIA request. Id. ¶ 37. Because of that fact, redacting information that could

personally identify Mowery and Masko “would not protect the individuals because the nature of

the FOIA request and the nature of the documents would make it clear that the redacted names

were the names of the individuals listed in the FOIA request.” Id. ¶ 37. In other words, “[i]f

Plaintiffs had even portions of the documents they would know the connection between those

individuals and the SEC’s investigation.” Id. These representations in the SEC’s declaration

adequately explain the SEC’s basis for withholding the documents in question in full. Only by

withholding the documents in full could the SEC protect Mowery and Masko’s “privacy interest

. . . in avoiding disclosure of the details of [their involvement in] the [SEC’s] investigation.”

Kimberlin,

. Accordingly, the SEC complied with its obligation to disclose all

reasonably segregable material, notwithstanding its withholding of these documents in full. See

Sussman,

.

B. Exemption 5

FOIA Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums

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

agency.”

(b)(5). This exemption “incorporates the traditional privileges that the

12 Government could assert in civil litigation against a private litigant,” including the attorney

work-product, attorney-client, and deliberative process privileges. Loving v. Dep’t of Def.,

(D.C. Cir. 2008) (internal quotation marks omitted).

The attorney work-product privilege incorporated into FOIA Exemption 5 “extends to

documents and tangible things that are prepared in anticipation of litigation or for trial by an

attorney.” Ellis v. DOJ,

(D.D.C. 2015) (internal quotation marks

omitted), aff’d,

(D.C. Cir. June 13, 2016). Courts apply a “because of test,

asking whether, in light of the nature of the document and the factual situation in the particular

case, the document can fairly be said to have been prepared or obtained because of the prospect

of litigation.” Nat’l Ass’n of Criminal Def. Lawyers v. Exec. Office for U.S. Attorneys,

(D.C. Cir. 2016) (internal quotation marks omitted). The SEC withheld three

categories of documents under FOIA Exemption 5 and the attorney work-product privilege: (1)

emails or portions of emails about drafting and filing a complaint in the Nova Oculus

enforcement case; (2) emails about steps being taken in the Nova Oculus investigation; and (3)

emails about litigation in other SEC enforcement cases. Cozza Decl. ¶ 16. The SEC properly

withheld these documents under FOIA Exemption 5 and the attorney work-product privilege

because all the documents were prepared by or under the direction of attorneys in anticipation of

litigation.

¶¶ 17–19. The plaintiffs do not challenge the SEC’s withholdings under this

privilege. See Pl.’s Cross-Mot. at 15–16.

The attorney-client privilege incorporated into FOIA Exemption 5 “protects confidential

communications from clients to their attorneys made for the purpose of securing legal advice or

services.” Touarsi v. DOJ,

(D.D.C. 2015) (citing In re Sealed Case,

, 98–99 (D.C. Cir. 1984)). In a governmental setting, the “client” may be the agency and

13 its “attorney” the agency lawyer. Tax Analysts v. IRS,

(D.C. Cir. 1997). The

SEC invoked the attorney-client privilege to withhold part of an email from the SEC’s FOIA

Office seeking legal counsel from the SEC’s Office of General Counsel. Because this email

sought legal advice for the agency from an agency lawyer, the SEC properly withheld it under

Exemption 5 and the attorney-client privilege. See Cozza Decl. ¶ 26. The plaintiffs also do not

challenge the SEC’s withholding under this privilege. See Pl.’s Cross Mot. at 15–16.

The deliberative process privilege incorporated into FOIA Exemption 5 allows agencies

to withhold “documents reflecting advisory opinions, recommendations and deliberations

comprising part of a process by which governmental decisions and policies are

formulated.” Petroleum Info. Corp. v. U.S. Dep’t of Interior,

(D.C. Cir.

1992) (internal quotation and citation omitted). To invoke the deliberative process privilege, an

agency must show that the information withheld is both “predecisional” and “deliberative.”

. A document is “predecisional if ‘it was generated before the adoption of an agency

policy’ and deliberative if ‘it reflects the give-and-take of the consultative process.’” Judicial

Watch, Inc. v. Food & Drug Admin.,

(D.C. Cir. 2006) (quoting Coastal States

Gas Corp. v. Dep’t of Energy,

(D.C. Cir. 1980)).

The SEC invoked the deliberative process privilege to withhold four categories of

documents: (1) emails or portions of emails about drafting and filing the complaint in the Nova

Oculus enforcement case; (2) emails about other steps being taken in the Nova Oculus

investigation; (3) emails about litigation in other SEC enforcement actions; and (4) emails

related to the processing of Nova Oculus’s FOIA request. Cozza Decl. ¶ 20. The agency’s

declaration makes clear that all the materials withheld were both predecisional and deliberative.

Id. ¶ 21 (documents “reflect analyses of what to include in the final complaint and other related

14 documents”); ¶ 23 (documents “reflect deliberations about future actions in those cases”); ¶ 24

(documents “reflect deliberations about what to include in a response to a FOIA request”). The

agency has also attested that it reviewed all documents withheld under this privilege and

“segregated and provided any portions that are not deliberative.” Id. ¶ 25. The SEC has

therefore fully justified its withholdings under the deliberative process privilege.

Nova Oculus argues that the deliberative process privilege does not apply under the

circumstances of this case because of the government misconduct exception. See In re Sealed

Case,

(D.C. Cir. 1997) (“[W]here there is reason to believe the documents

sought may shed light on government misconduct, the [deliberative process] privilege is

routinely denied, on the grounds that shielding internal government deliberations in this context

does not serve the public’s interest in honest, effective government.” (internal quotation marks

omitted)). It is an open question whether the deliberative process privilege is subject to a

government misconduct exception in the FOIA context. Compare Wright v. Admin. for Children

and Families, No. 15-cv-218,

at *11 (D.D.C. 2016) (“Exemption 5’s

protection of privileged materials is not subject to the same [government misconduct]

exception[] to which the common law privilege is susceptible.”), with Judicial Watch of Fla.,

Inc. v. U.S. DOJ,

(D.D.C. 2000) (“It is true that where there is reason to

believe the documents sought may shed light on government misconduct, the deliberative

process privilege is routinely denied.” (alterations adopted and internal quotation marks

omitted)). But the Court need not answer that question here. Assuming the government

misconduct exception does apply in the FOIA context, the exception does not apply in this case

for largely the same reasons discussed above: namely, the plaintiffs have offered no “reason to

believe the documents sought may shed light on government misconduct.” See In re Sealed

15 Case,

. As noted, the plaintiffs offer only their own speculation about a secret

quid pro quo, based on nothing more than a few words of common courtesy in an email

exchange. Therefore, even if the government misconduct exception does apply here, there is no

evidence of government misconduct. The SEC properly withheld the documents at issue under

Exemption 5 and the deliberative process privilege.

CONCLUSION

For the foregoing reasons, the Court grants the SEC’s motion for summary judgment and

denies Nova Oculus’s cross-motion for summary judgment. A separate order accompanies this

memorandum opinion.

________________________ DABNEY L. FRIEDRICH August 28, 2020 United States District Judge

16