Press Release
September 9, 2022

Empower Oversight seeks time to conduct page-by-page comparison of the SEC’s last-minute disclosures after agency refuses to specify new info.

WASHINGTON — Empower Oversight filed a motion in the Eastern District of Virginia in its lawsuit against the Securities and Exchange Commission (SEC) seeking time to conduct a detailed review of about 1,500 pages of documents that the SEC dropped just one day before filing for summary judgment in Freedom of Information Act (FOIA) litigation over cryptocurrency conflicts of interest at the agency.

According to the SEC, the documents consist of new versions of all the previously produced documents, but with some redactions lifted to publicly reveal new information. However, the SEC failed to indicate where exactly it had lifted redactions. When Empower Oversight sought clarification about how and whether the SEC had marked the newly revealed information, the agency advised that Empower Oversight would have to conduct a page-by-page comparison to the original document productions to hunt for the new information.

“This is another example of the SEC playing silly games with serious litigation,” said Empower Oversight Founder and President Jason Foster. “Americans deserve better treatment than this, and these tactics are further evidence of bad faith and lack of professionalism.”

Empower Oversight sought to confirm in an email exchange with SEC FOIA officials and DOJ attorneys whether and how the new information may have been marked. However, according to the SEC, it failed to indicate specifically what new information it had decided to produce at the last minute or why, “Please note, not all unredacted material are marked with these red outlines. The newly unredacted information consists of certain email addresses and Simpson Thacher client names. A page to page comparison should be performed for an accurate analysis of these records.”

In order to try to understand why the SEC failed to mark the new information in the versions of the documents provided under FOIA, Empower Oversight wrote:

“Thank you for that clarification.  However, it raises other questions: (1) Are you saying that you failed to mark the new information in any way as you lifted the redactions? (2) How did you internally track which redactions were being lifted? (3) Do you have versions of these documents internally that have the new information marked so that SEC staff and DOJ attorneys are not required to do a page-by-page comparison to review which redactions were lifted? (4) If the answer to #3 is yes, then why did you not produce those versions of the documents rather than versions that do not have [the] new information clearly marked? (5) If the answer to #3 is no, then how were SEC and/or DOJ staff possibly able to make rational and consistent decisions about which redactions were going to be removed and why if they could not readily ascertain which new information was being proposed for release?”

The SEC refused to answer these questions.

Below are the new versions, received on August 31, 2022, of previously produced documents:

·  8/31 version of the SEC’s 2/16 release.

·  8/31 version of the SEC’s 2/22 release.

·  8/31 version of the SEC’s 3/25 release.

·  8/31 version of the SEC’s 6/15 release on request #21-02531.

·  8/31 version of the SEC’s 6/15 release on request #21-02533.

If the extension of time is granted, Empower Oversight will have until  October 3, 2022 to complete its comparison of the documents to identify the new information and file its reply to the SEC’s motion for summary judgment.

Empower Oversight initially filed its lawsuit against the SEC in December of last year after the agency failed to respond to a detailed FOIA request in August 2021. Just last month, Empower Oversight filed an amended complaint alleging that the SEC unreasonably refused to conduct searches using the names of individuals associated with entities named in the initial FOIA request, even after Empower Oversight provided those names to the SEC.

If you have first-hand information you’d like to disclose to assist Empower Oversight with these inquiries, please contact us confidentially here.