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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION


WASHINGTON, D.C. 20549

OFFICE OF THE
GENERAL COUNSEL

Stop 9612 Mar ch 30, 2011

Adam J. Rappaport
Citizens for Responsibility and
Ethics in Washin gton
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005

Re: Appeal, Freedom ofInformation Act (FOIA) Request No. 2010-10344

Dear Mr. Rappaport:

I am responding to your December 23, 2010 appeal of the decision by the FOIA/Privacy
Act Officer, Securities and Exchange Commission, denying in part your request for records
related to the Commission' s FOIA operations. On November 29, 2010, the FOIA Offic er
released records responsive to Request items 1, 2, 4 and 5. However, the FOIA Officer withheld
portions of the FOIA Processing Guidance for Liaisons (item 1) under Exemption 2 and internal
staff materials related to the recusal policy (item 2) und er Exemption 5. On appeal, you question
these assertions and the suffi ciency of the search for records responsive to item 3 (restructur ing
of the FOIA Office or its operations). I have con sidered your appeal, and as discus sed below, it
is grant ed in part.

I have determined to exerci se my discretion and release the FOIA Pro cessing Guid ance
for Liai sons . A copy is enclosed.

With respect to item 2 of your request, the FOIA Offic er released the recusal poli cy, but
withheld internal materials reflecting the drafting and consideration of that policy und er
Exemption 5, 5 U.S .c. 552(b)(5), 17 CFR 200.80(b)(5).! This exemption protects docum ents
normally privileged in the context of civil discovery, including documents covered by the
deliberative process privi lege. See NLRB v. Sears, Roebu ck & Co., 421 U.S . 132, 148-51 (197 5).
The delib erative process privilege covers "deliberations comprising a part of a pro cess by whi ch
governmental decis ions and policies are formulated ." Dept. ofthe Interior v. Klamath Water
Users Prote ctive Assn. , 532 U.S. 1,8 (2001). It thus exempts from disclo sure documents that are
part of an agency' s delib erative process leading to a final decision. Vaughn v. Rosen, 523 F.2d

'Exemption 5 permits an agency to withhold "intra-agency memorandums or letters


which would not be available by law to a party . .. in litigation with the agency."
Adam J. Rappaport
March 30, 2011
Page 2

1136, 1143-44 (D.C. Cir. 1975). Such documents are protected from public release so that an
agency may freely engage in the candid, frank and open interchange of ideas critical to the
deliberative process. See, e.g., City a/Virginia Beach v. Dept. a/Commerce, 995 F.2d 1247,
1252-53 (4th Cir. 1993). I find that the internal staff materials, approximately 52 pages,
comprise several drafts of the memorandum on the recusal policy and emails among staff
discussing issues and their preliminary views, opinions and recommendations on that then
proposed policy. The very process by which a document evolves through drafts, internal
commentary and editing into a final document constitutes a deliberative process that warrants
protection. To seek to find distinctions or differences between a draft report and one as
published is an attempt "to probe the editorial and policy judgments of the decisionmakers."
National Wildltie Fed'n v. Us. Forest Service, 861 F.2d 1114,1122 (9th Cir. 1988). Nor are
such internal records routinely made available to any party in litigation with the Commission.
Release of these documents would likely inhibit the staff s candor in making recommendations,
presenting alternative views and discussing the implications of a matter under consideration.
Accordingly, these documents were properly withheld under Exemption 5.

Finally, I am remanding item 3 of your request to the FOIA Officer for further
consideration. While the FOIA Officer described some of the activities undertaken to restructure
the FOIA Office's processes, there was no indication whether records reflecting additional
training opportunities, acquisition of other technology or other aspects of the described activities
do or do not exist. However, there is no assurance that records in fact exist. Further, you should
be aware that even if responsive records are located, they may be exempt from disclosure, in
whole or part, pursuant to various exemptions. You may contact Ms. Celia Winter, FOIA
Officer, at 202-551-8307, regarding the status of the matter on remand.

You have the right to seek judicial review of this determination with respect to
Exemption 5 by instituting an action in the United States District Court for the District of
Columbia or in the district where you reside or have your principal place of business. See 5
U.S.C.552(a)(4)(B). Voluntary mediation services as a non-exclusive alternative to litigation are
also available through the Office of Government Information Services ("OGIS"). Please contact
OGIS at ogis@nara.gov, www.archives.gov/ogis, or 1-877-684-6448 for more information. If
you have any questions regarding this determination, please contact Celia Jacoby, Senior
Counsel, at 202-551-5158.

For the Commission


~egated authority,

Richard M. Humes
Associate General Counsel