UPDATE (February 7): In connection with its January 19th administrative appeal, Empower Oversight filed a letter with the SEC that provides pertinent supplemental information about the inadequacies of SEC’s initial searches.
UPDATE (February 1): Empower Oversight filed a *new* request with the SEC seeking documents that would show how it searched for records related to alleged crypto conflicts of interest before claiming that “no responsive records” existed.
To: Office of FOIA Services, Securities and Exchange Commission
Full Request: Securities and Exchange Commission FOIA Appeal (PDF)
RE: Freedom of Information Act Appeal
SUMMARY
Empower Oversight filed an administrative appeal challenging the Securities and Exchange Commission’s (SEC) claim that “no responsive records exist” in several categories of Empower Oversight’s Freedom of Information Act (FOIA) request. The SEC’s claim that it “conducted a thorough search of the SEC’s various system of records” regarding conflicts of interest with cryptocurrencies is unsupported.
In its response to Empower Oversight, the SEC failed to describe the scope of its searches. Thus, neither Empower Oversight nor the public can be assured that the SEC took reasonable steps to locate and produce responsive documents. In its administrative appeal, Empower Oversight is requesting the SEC to review the SEC FOIA Research Specialists’ searches, report if any deficiencies are found, and provide sworn affidavits describing the searches in detail if the SEC still claims that no records exist.
In August 2021, Empower Oversight filed a FOIA request regarding any conflicts of interest with cryptocurrencies at the SEC, where some cryptocurrencies may have been promoted over others. This led to a denial of a fee waiver, which was quickly appealed and overturned.
After months of lack of responses from the SEC, Empower Oversight filed a lawsuit to compel the SEC to comply with its FOIA requests. That litigation remains pending in the Federal District Court for the Eastern District of Virginia. The SEC’s response to Empower Oversight’s lawsuit is due February 11, 2022.
If you have first-hand information you’d like to disclose to assist Empower Oversight with these inquiries, please contact us confidentially here.