Transmitted: September 17, 2021
To: Security & Exchanges Commission, General Counsel
Re: Empower Oversight’s Appeal of SEC’s Denial of its Right to a Waiver of FOIA Fees
FULL TEXT OF THE APPEAL: [SEC FOIA Fee Waiver PDF]
Empower Oversight recently sought documents from the SEC on potential conflicts of interest involving cryptocurrencies and former high-level SEC officials. The SEC denied Empower Oversight’s request for the standard fee waiver that is generally available to publishers and nonprofits seeking information in the public interest rather than for a commercial purpose. If not overturned, this denial will thwart transparency by enabling the SEC to impose expensive search and document duplication fees that would be an undue burden on a nonprofit public interest group.
As explained in Empower Oversight’s appeal, the precedent is clear that the SEC should not treat Empower Oversight as an “other use” requester subject to SEC’s expensive search and duplication fees. Empower Oversight meets the criteria outlined in the FOIA statute to be treated as a news media requester, consistent with Cause of Action v. FTC.
Empower Oversight’s request also satisfies the FOIA standard for a fee waiver. It would further the public interest by probing the appearance that high-level SEC officials may have been picking cryptocurrency winners and losers based on the financial interests of their once or future employers. The request seeks SEC records that would either confirm, or dispel, the appearance of potential conflicts of interest, which would: “(1) shed light on ‘the operations or activities of the government’; [and] (2) be ‘likely to contribute significantly to public understanding’ of those operations or activities.” See Cause of Action v. FTC, 799 F.3d at 1115.