VIA CERTIFIED MAIL

Mr. Barry Walters Chief FOINP A Officer Office of FOIA Services

C) cAUSE - , ofACTION

Advocates for Government Accountability

A 501(c)(3) Nonprofit Corporation

June 18, 2014

Securities and Exchange Commission 100 F Street, NE, Mail Stop 2736 Washington, DC 20549

Re: Freedom of Information Act Appeal, FOIA Case No. 14-07202-FOIA

Dear Mr. Walters:

This letter constitutes an administrative appeal under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the U.S. Securities and Exchange Commission (SEC) FOIA regulations, 17 C.P.R.§ 200.80(d)(6). As detailed below, Cause of Action (CoA) disputes the adequacy of SEC's search in response to CoA's FOIA request dated May 6, 2014.

Procedural Background

On May 6, 2014, CoA submitted a FOIA request to SEC seeking records reflecting communications from January 1, 2010 to January 1, 2013 between (1) the Office of White House Cow1sel and the SEC FOIA Public Service Center, and (2) the Office of White Counsel and the SEC Office of General Counsel, concerning the Office of White House Counsel's review of agency records. 1 SEC provided its final response by letter dated June 3, 2014, stating that its "thorough search ... did not locate or identify any information response to [CoA's] request."2

Argument

The FOIA requires agencies to undertake a search that is "reasonably calculated to uncover all relevant documents.''3 It does not appear, however, that SEC conducted an adequate search in response to Co A's request.

1 Letter from Cause of Action to Barry Walters, ChiefFOIA/PA Officer, Securities & Exch. Comm'n (May 6, 2014) (enclosed as Exhibit I). 2 Letter from Sonja Osborn, FOIA Specialist, Securities & Exch. Comm'n, to Cause of Action (June 4, 2014) (enclosed as Exhibit 2). 3 Weisberg v. Dep 't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983).

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Mr. Barry Walters June 18, 2014 Page2

CoA's FOIA request seeks records that would reflect any consultation between SEC and the White House whenever SEC locates records containing "White House equities" in response to a document request.4 This consultation process is reflected in an April15, 2009 memorandum from Gregory Craig, Counsel to the President, to all executive department and agency general counsels. 5 The Craig Memo reminded agencies that they should "consult with the White House Counsel's office on all document requests that may involve documents with White House equities."6 The memorandum explains that "document requests" includes Congressional committee requests, GAO requests, judicial subpoenas, and FOIA requests.7

Given the three-year time period ofCoA's request, it seems unlikely that SEC received zero requests implicating the Craig Memo. SEC's FOIA logs for the period suggest as much. For example, on April21, 2010, the Financial Times submitted a FOIA request for all SEC communications with the White House.8 To the extent that any responsive records exist, they almost certainly would have contained "White House equities." Similarly, on May 13, 2010, Judicial Watch, Inc. submitted two FOIA requests for White-House related records: the first for SEC communications with the Executive Office of the President (EOP) about Goldman Sachs, and the second for any and all communications by two named SEC officials with EOP.9 Finally, on October 8, 2010, the National Security Archive submitted a request for all FOIA guidance and resources implementing a White House memorandum authored by Rahm Emanuel. 10 In sum, unless SEC's initial search revealed the foregoing request files, CoA respectfully suggests that the agency's search was inadequate under controlling case law. 11

Conclusion

The broad scope of the Craig Memo, in conjunction with SEC's FOIA logs, call into question SEC's claim that it possesses no records responsive to CoA's request. Accordingly, CoA respectfully requests that SEC remand CoA's FOIA request for a supplemental search that is reasonably calculated to locate all responsive records.

4 Memorandum from Gregory Craig, Counsel to the President, to All Executive Department & Agency General Counsels (Apr. 15, 2009), available at http://causeofaction.org/assets/uploads/20 13/06/White-House-memo­equities.pdf?92f52c [hereinafter Craig Memo]; see also Memorandum from Webster L. Hubbell, Associate Att'y Gen., to the principal FOlA Administrative & Legal Contacts at All Fed. Agencies (Nov. 3, 1993), available at http://www .justice.gov/oip/foia _ updates/V o1_ XIV_ 3/page4.htm [hereinafter Hubbell Memo]. 5 Craig Memo, supra note 4; see also Hubbell Memo, supra note 4. 6 Craig Memo, supra note 4. 7 !d. 8 FOIA Request I 0-06426-FO/A, SECURITIES & EXCH. COMM'N, FOIA LOGS 2008-2011 FOR REQUEST 11-05889-FOIA 686 (May 11, 2011) [hereinafter FOIA LOGS], available at http://www.govemmentattic.org/4docs/SEC­FOIA-Logs_2008-2011.pdf. 9 FOIA Request /0-06826-FO/A, FOIA LOGS, supra note 8, at 698. 1° FOIA Request /l-00168-FO/A, FOlA LOGS, supra note 8, at 815. 11 See Oglesby v. Dep 't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (agency must make "a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested").

Mr. Barry Walters June 18,2014 Page 3

Thank you for your attention to this matter. If you have any questions, please contact Allan Blutstein or me at (202) 499-4232, or via e-mail at allan.blutstein@causeofaction.org or ryan.mulvey@causeofaction.org.

Sincerely,

Encls.

cc: Office of the General Counsel Securities and Exchange Commission 1 00 F Street, NE Mail Stop 9612 Washington, DC 20549