Energy Policy Advocates v. Securities & Exchange Commission

The federal district court for the District of Columbia upheld the Securities and Exchange Commission’s (SEC’s) determinations that certain information was exempt from disclosure in response to a Freedom of Information Act (FOIA) request seeking records related to the SEC’s conversations and correspondence with two outside parties in connection with its climate change disclosure rulemaking. The FOIA request sought communications between SEC Senior Counsel for Climate and ESG and a climate management and accounting platform company and a sustainability consultancy firm. The court found that the SEC showed that certain records were exempt under FOIA Exemption 4 for “trade secrets and commercial or financial information obtained from a person” that is “privileged or confidential.” The court also found that the SEC justified the withholding of other materials under Exemption 5 through the deliberative process privilege. The court concluded that the deliberations in the withheld materials were predecisional because they occurred before the SEC issued proposed rules in March and May 2022 and that it was clear that the withheld information was “part of the agency give-and-take by which the agency decisions regarding the proposed rules were made.” For both sets of withheld documents, the court found that the SEC sufficiently explained how disclosure would result in foreseeable harm.