Workhorse Group - SEC Enforcement Division Investigation Confirmed

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549
OFFICE OF THE
GENERAL COUNSEL
Stop 9613 June 30, 2021
Via electronic mail
Re: Appeal, Freedom of Information Act Request No. 21-01534-FOIA, designated on

appeal as No. 21-00451-APPS
Dear
This responds to your Freedom of Information Act (FOIA) appeal of the FOIA Officer’s
denial of your April 13, 2021 FOIA request for “all documents in possession of SEC that pertain
to investigations regarding Workhorse Group (WKHS) for the time period June 1 2020 through
April 12 2021.” By letter dated May 12, 2021, the FOIA Officer denied your request pursuant to
FOIA Exemption 7(A). On June 15, 2021, you filed this appeal challenging the FOIA Officer’s
invocation of Exemption 7(A). I have considered your appeal, and it is denied.
I have determined that the FOIA Officer correctly asserted Exemption 7(A). 1 There is a
two-step test to determine whether information is protected under Exemption 7(A), whether:
(1) a law enforcement proceeding is pending or prospective, and (2) release of information about
it could reasonably be expected to cause some articulable harm. 2 We have confirmed with
Division of Enforcement staff that the investigation from which you seek records is still active
and ongoing. 3
1
Exemption 7(A) authorizes the withholding of “records or information compiled for law enforcement purposes, but
only to the extent that production of such law enforcement records or information … could reasonably be expected
to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A).
2
See, e.g., NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978) (holding that the government must show
how records “would interfere with a pending enforcement proceeding”); Juarez v. Dep’t of Justice, 518 F.3d 54, 58-
59 (D.C. Cir. 2008) (explaining that government must show that its ongoing law enforcement proceeding could be
harmed by premature release of evidence or information).
3
See OKC Corp. v. Williams, 489 F. Supp. 576 (N.D. Tex. 1980) (SEC is not required to disclose requested
materials directly tied to a pending investigation); Nat’l Pub. Radio v. Bell, 431 F. Supp. 509, 514-15 (D.D.C. 1977)
(Congress intended that Exemption 7(A) would apply where disclosure may impede any necessary investigation
prior to court proceedings); Robbins Tire, 437 U.S. at 232 (Congress intended that Exemption 7(A) would apply
“whenever the Government’s case in court … would be harmed by the premature release of evidence or
information.”); Accuracy in Media, Inc. v. U.S. Secret Service, C.A. No. 97-2108, 1998 U.S. Dist. Lexis 5798 at 11
Further, under Exemption 7(A), an agency may withhold records if they come within
categories of records whose disclosure would generally interfere with enforcement proceedings. 4
We have confirmed with Division of Enforcement staff that the documents you seek come within
categories whose disclosure could be reasonably expected to cause harm to the ongoing and
active enforcement proceedings because, among other things, individuals and entities of interest
in the underlying investigation could fabricate evidence, influence witness testimony and/or
destroy or alter certain documents. 5 Public release of the records sought could also hinder the
ongoing investigation by revealing cooperating witnesses and exposing the scope of the
underlying investigation. 6
I have also considered whether partial disclosure of the withheld information is possible,
but have determined that it is not because such a disclosure would not be consistent with the
purposes of Exemption 7(A). 7
You request that the SEC “disclose the specific nature of the documents that are being
with-held from [y]our FOIA Request.” The Commission’s FOIA regulations only require a brief
(D.D.C. April 16, 1998) (affirmation that there is an active and on-going investigation is enough); Marzen v. HHS,
632 F. Supp. 785, 805 (N.D. Ill. 1985) (concluding that Exemption 7(A) prohibits disclosure of law enforcement
records when their release “would interfere with enforcement proceedings, pending, contemplated, or in the future”),
aff'd, 825 F.2d 1148 (7th Cir. 1987).
4
Robbins Tire, 437 U.S. at 236; see also Solar Sources, Inc. v. United States, 142 F.3d 1033, 1038 (7th Cir. 1998)
(“the Government may justify its withholdings by reference to generic categories of documents”).
5
See Robbins Tire, at 232 (Congress intended that Exemption 7(A) would apply “whenever the Government’s case
in court … would be harmed by the premature release of evidence or information.”).
6
See, e.g., Shannahan v. IRS, 672 F.3d 1142, 1150 (9th Cir. 2012) (the use of Exemption 7(A) was proper where
agency explained harm to ongoing investigation by showing that release could reveal identity of confidential
informants and thus hinder other individuals from cooperating, violate terms of an international agreement, and
expose scope of investigation); Citizens for Responsibility & Ethics in Wash. v. Nat'l Indian Gaming Comm'n, 467
F. Supp. 2d 40, 52 (D.D.C. 2006) (release of records regarding alleged misuse of tribal gaming revenues during
investigation could allow targets to ascertain direction of investigations, to identify potential charges to be brought,
and to expose state and nature of current investigations, thereby undermining federal investigations); Suzhou Yuanda
Enter. Co. v. Customs and Border Prot., 404 F. Supp. 2d 9, 14 (D.D.C. 2005) (release of information “would
interfere with an agency investigation [by] informing the public of the evidence sought and scrutinized by this type
of investigation”); Elec. Privacy Info. Ctr. v. DHS, 384 F. Supp. 2d 100, 119 (D.D.C. 2005) (“release of this
information could undermine the effectiveness” of agency’s investigation); Judicial Watch v. Dep’t of Justice, 306
F. Supp. 2d 58, 75-76 (D.D.C. 2004) (release of documents during course of investigation could damage agency’s
ability to obtain information); Lynch v. Dep’t of the Treasury, 210 F.3d 384, at *2 (9th Cir. 2000) (unpublished table
decision) (agency declarations “made clear” that release of records could harm “efforts at corroborating witness
statements . . . alert potential suspects . . . [and] interfere with surveillance”); Solar Sources, 142 F.3d at 1039
(disclosure could interfere by revealing “scope and nature” of investigation); Amnesty Int'l v. CIA, 728 F. Supp. 2d
479, 526-27 (S.D.N.Y. 2010) (disclosure of information in open investigations would reveal what individuals and
activities were under investigation, what evidence had been collected, and compromise confidentiality of
investigation; such disclosures were “‘precisely the kind of interference that Congress . . . want[ed] to protect
against’” (quoting Robbins Tire, at 247)).
7
I further find that it is reasonably foreseeable that disclosure of the withheld records would harm interests protected
by Exemption 7(A) because such a disclosure could compromise ongoing enforcement proceedings.
2
statement of the reasons for the denial, including the applicable FOIA exemptions. 8 Further,
there is no requirement for a detailed index of withheld records (a Vaughn index) at the
administrative level. The requirement imposed by Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.
1973), cert. denied, 415 U.S. 977 (1974), pertains only in litigation. Agencies need not create a
Vaughn index until ordered to do so by a court, after the FOIA plaintiff has exhausted all
administrative remedies. 9
Please be aware that my decision to affirm the FOIA Officer’s assertion of Exemption
7(A) should not be construed as an indication by the Commission or its staff that any violations
of law have occurred with respect to any person, entity, or security. As Exemption 7(A)
precludes the release of the information at this time, no determination has been made concerning
the applicability of any other FOIA exemptions. The Commission reserves the right to review
the information to assert any other exemption when Exemption 7(A) is no longer applicable. 10
You have the right to seek judicial review of my determination by filing a complaint in
the United States District Court for the District of Columbia or in the district where you reside or
have your principal place of business. 11 Voluntary mediation services as a non-exclusive
alternative to litigation are also available through the National Archives and Records
Administration’s Office of Government Information Services (OGIS). For more information,
please visit www.archives.gov/ogis or contact OGIS at [email protected] or 1-877-684-6448. If
you have any questions concerning my determination, please contact Mark Tallarico, Senior
Counsel, at 202-551-5132.
For the Commission

by delegated authority,
Melinda Hardy
Assistant General Counsel for
Litigation and Administrative Practice
8
See 17 C.F. R. § 200.80(e)(2)(iv) (“An adverse determination letter shall be signed and include … (B) A
brief statement of the reasons for the adverse determination, including any FOIA exemption applied by
the official denying the request . . .”).
9
See Judicial Watch v. Clinton, 880 F. Supp. 1, 19 (D.D.C. 1995).
10
See LeForce & McCombs, P.C. v. Dep’t of Health and Human Services, Case No. Civ-04-176-SH (E.D. Okla.
Feb. 3, 2005) (an agency does not waive the right to invoke exemptions by not invoking such exemption during the
administrative processing of a FOIA request).
11
See 5 U.S.C. § 552(a)(4)(B).

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Stop 9613 June 30, 2021

Via electronic mail

Re: Appeal, Freedom of Information Act Request No. 21-01534-FOIA, designated on

For the Commission

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