Edelman v. Securities & Exchange Commission (172 F. Supp. 3d 133, 2016)

MEMORANDUM OPINION

RANDOLPH D. MOSS, United States District Judge

Between 2011 and 2013, the limited liability corporation that owned the Empire State Building was merged with other entities in a contentious process that led to the creation of'a real estate investment trust called Empire State Realty Trust, Inc. One of the shareholders who opposed the transaction is a California resident named Richard Edelman, Between January and April 2014, Edelman filed six requests under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, with the Securities and Exchange Commission (“SEC”) for documents that related to the formation of Empire State Realty Trust. By July 2014, Edelman had received responses from the SEC to some of his requests, but not to others, and the SEC had produced no responsive documents. In an effort to compel the SEC to produce documents responsive to his requests, Edelman filed this FOIA action.

The SEC has now responded to all six of Edelman’s requests and has produced over 2,000 pages of responsive records. Having done so, the Commission moves for summary judgment, arguing that it conducted an adequate search for responsive records and withheld only information it is authorized to withhold under FOIA. Edelman has cross-moved for summary judgment, arguing that the SEC has not shown that it conducted an adequate search and that it has improperly withheld records not protected by the Act. For the reasons set out below, the Court wül grant in part and deny in part each party’s motion.

I. BACKGROUND

A. Factual Background

Richard Edelman is á former investor in the Empire State Building. Compl. ¶ 3. For several years, he has operated a website that provides information to investors and the public regarding the contentious process of converting the ownership of- the Empire State Building into a real estate investment trust. Compl. ¶¶3, 5-11; see www.empirestatebuildinginvestors.com (last updated Mar. 18, 2016). Among other things, he has posted documents filed with and issued by the SEC, which was required to approve the creation of the trust, known as the Empire State Realty Trust, Inc., or ESRT for short. Compl. ¶¶ 7-li. This action arises out of six FOIA requests that Edelman submitted to the SEC in order to obtain documents about its review of the proposed transaction. Because the procedural history of these requests differs, the Court will describe them request-by-request.

1. Request No, 14-0304-3 (ESRT/SEC Communications)

Edelman sent the first 'of these FOIA requests to the SEC on January 6, 2014. Dkt. 15-3 at 2 (Livornese Dec!,, Ex. 1). In that request, he described several filings submitted by ESRT to the SEC and sought “all comment letters from SEC staff not currently displayed on [the] SEC public website”; “all submissions from [ESRT] in response to SEC comment letters”; “all submissions from [ESRT] submitted under” 17 C.F.R. § 200.83, which permits persons to request that filings be shielded from FOIA; “all emails to and from SEC attomeyfs] David Orlick, Tom Kluck, and Angela McHale”; and “all notes from meetings” attended by those attorneys. Id. Although the SEC' acknowledged the receipt of Edelman’s request, and assigned it a processing number (No. 14-0343), it did not provide a substantive response within the 20-day period in which the statute requires an agency to respond to a FOIA request. Dkt. 16-2 at 15 (Edel-mari Aff., Ex. A); id. at 6 (Edelman Aff. ¶ 19); see 5 U.S.C. § 552(a)(6)(A)®.

Edelman appealed the constructive denial of his FOIA request on March 26, 2014. . Dkt, 16-2 at 40 (Edelman Aff., Ex. H); see 17 C.F.R. § 200.80(d)(6). On April 16, 2014, the associate general counsel of the SEC, Richard Humes, acknowledged that the statutory timeframe had not been met and remanded the request to the agency’s FOIA office for processing. Id. at 57 (Edelman Aff., Ex. J). The FOIA office did not provide a substantive response, and on July 3, 2014,- Edelman brought this action. Dkt. 1. Finally, on September 30, 2014, the SEC responded to this request (and to Edelman’s third FOIA request, discussed below). See Dkt. 15-3 at 12 (Livornese Deck, Ex. 5). It produced 2,034 pages of records responsive to the two requests. Id. at-13. The SEC withheld nine responsive pages in full under FOIA Exemptions 5 and 6 and redacted other material on the basis of those exemptions. Dkt. 15-1 at 5-6 (Livornese Decl, ¶ 16). The SEC informed Edelman that it had also located “notes ... from SEC meetings” attended by Or-lick, Kluck, and McHale, but had determined that “the majority of these notes ... are for [the attorneys’] personal use and convenience,” and were not subject to FOIA. Dkt. 15-3 at 14 (Livornese Decl., Ex. 5).

2. Bequest No. U.-03257 (Sublease Documents)

Edelman sent a second FOIA request to the SEC on January 8, 2014. See Dkt. 15-3 at 17 (Livornese Decl., Ex. 6). He requested any exhibits filed by ESRT or the predecessor LLC “that reference the Sublease of the Empire State Building”; all submissions filed by either entity under 17 C.F.R. § 200.83 that referenced the Sublease; “any and all emails” to or from any SEC employee referencing the Sublease; “any notes from SEC meetings” in which the Sublease was mentioned; and “any notes from phone conversations or correspondence of any nature between the SEC” and both entities, or their representatives, in which the Sublease was mentioned. Id. at 17-18; The SEC acknowledged the request and assigned it a processing number (No. 14-03257), but again did not provide a substantive response within 20 days. Dkt. 16-2 at 19 (Edelman Aff., Ex. B); id. at 6 (Edelman Aff. ¶ 19).

Edelman appealed the constructive denial of his FOIA request on March 26, 2014. Dkt. 16-2 at 41 (Edelman Aff., Ex. H). On April 16, 2014, Humes acknowledged that the statutory timeframe had not been met and remanded the request to the agency’s FOIA office. Id. at 57 (Edelman Aff., Ex. J). The FOIA office once again did not provide a substantive response, and on July 3, 2014, Edelman brought this action. Dkt. 1. The SEC ultimately responded to this request on September 3, 2014. Dkt. 15-3 at 20 (Livornese Decl., Ex. 7). It produced 215 pages of records that it viewed as potentially responsive to the portion of Edelman’s request referring to e-mails. Id. at 21. The SEC withheld portions of these records under Exemptions 5 and 6. Id. It also explained that, with respect to the rest of Edelman’s request, it had either found no'records or found no records not available on the SEC’s public website. Id. at 21-22.

3. Request No. U-03398 (Confidential ■ Documents)

Edelman sent his third FOIA request to the SEC on January 10, 2014.. Dkt. 15-3 at 25 (Livornese. Decl., Ex. 8). This request sought “any and all documents submitted by [ESRT] and granted confidential treatment” under any of. three SEC rules permitting confidential filings. Id. Edelman also requested each document’s submission date and subject, and the name of the SEC official who granted ESRT leave to file the document -confidentially. Id. The SEC assigned the request a processing-number (No. 14-03398) but did not provide a substantive response within 20 days. Dkt. 16-2 at 22 (Edelman Aff.,' Ex. C); id. at 6 (Edel-man Aff. ¶ 19).

Edelman appealed the constructive denial of his FOIA request on March 26, 2014. Dkt. 16-2 at 42 (Edelman Aff., Ex. H). On April 16, 2014, Humes acknowledged that the statutory timeframe had not been met and remanded the request to the agency’s FOIA office. Id. at 57 (Edelman Aff., Ex. J). On April 29, 2014, seemingly unaware of the appeal or the remand, the SE.C responded to Edelman’s request by informing him that it had “conducted a thorough search,” but had not identified any responsive records. Id. at 63 (Edelman Aff., Ex. L). The subsequent day, April 30, it sent him a letter acknowledging the remand. Id. at 65. Finally, on May 6,- 2014, the SEC sent Edelman a third letter that more fully described his original request and reiterated the agency’s original conclusion that no responsive records existed. See Dkt, 15-3 at 27 (Livornese Decl.,' Ex. 9). Edelman did not appeal, and instead filed this action. Dkt. 1.

4. •Request No. 14-08452 (“Consumer Complaints”)

Edelman sent a fourth FOIA request to the SEC on January 15, 2014. See Dkt. 15-3 at 5 (Livornese Decl., Ex. 2). Using the SEC’s online FOIA form, Edelman selected “Consumer complaints” as the “[t]ype of document” he sought in this request. Id.; see Request for Copies of Documents, U.S. Sec. & Exch. Comm’n, https://www. sec.gov/forms/request_public_docs (last visited Mar. 23, 2016). He described a set of complaints submitted by Empire State Building investors to the SEC during its review of the proposed transaction, and alleged that the same SEC lawyers whom he named in his first request — Orlick, Kluck, and McHale — had interviewed the investors who had submitted the complaints. See Dkt.. 15-3 at 5 (Livornese Decl., Ex. 2). He requested “all notes, reports, emails or any other accounts from these interviews” and “all emails, to and from the ... SEC lawyers where those complaints and interviews are discussed.” Id. The SEC assigned Edelman’s request a processing number (No. 14-03452) but did not provide a substantive response within 20 days. Dkt.. 16-2 at 25 (Edelman Aff., Ex. D); id. at 6 (Edelman Aff. ¶ 19).

Edelman appealed the constructive denial of his FOIA request on March 26, 2014. Dkt. 16-2 at 42 (Edelman Aff., Ex. H). On April 16, 2014, Humes acknowledged that the statutory timeframe had not been met and remanded the request to the agency’s FOIA office. Id. at 57 (Edelman Aff., Ex. J). On April 30, 2014, the SEC issued a Glomar response to Edelman’s request, asserting that it could “neither confirm nor deny the existence of any records responsive to [his] request.” Dkt. 15-3 at 7 (Livornese Decl.,- Ex. 3). On May 19, 2014, Edelman filed an appeal of the Commission’s Glomar response, and on July 2, 2014, Humes remanded the request to the agency’s FOIA office. Id. at 10 (Livornese Deck, Ex. 4). Having not yet received Humes’s response, Edelman brought this action the next day. Dkt. 1. On September 30, 2014, the SEC issued a combined response to this request and Edelman’s first FOIA request. See Dkt. 15-3 at 12 (Livornese Decl., Ex. 5); As described more fully above, it produced 2,034 pages of records responsive to the two requests, but withheld some material on the basis of FOIA Exemptions 5 and 6. Id. at 13.

5. Requests No. 14-06866 to 14-06369 (ESRT E-mails and FOIA Records)

Edelman sent his fifth FOIA request to the SEC on March 27, 2014. See Dkt. 15-3 at 30 (Livornese Decl., Ex. 10). He requested e-mails and letters between the SEC and ESRT, as well as e-mails and letters between the SEC and Malkin Holdings, the company advocating the conversion of the Empire State Building’s ownership structure into a real estate investment trust. Id. He also requested e-mails, letters, and notes from meetings and phone conversations between the SEC’s FOIA office and other SEC departments about FOIA requests regarding ESRT and/or Malkin Holdings. Id. He finally requested the same materials regarding the SEC’s Division of Corporate Finance. Id. The SEC informed Edelman that it would treat his request as four FOIA requests (one for e-mails and letters between ESRT and the SEC, a second for e-mails- and letters between Malkin and the SEC, a third for communications about FOIA requests regarding ESRT, and a fourth for communications about FOIA requests regarding Malkin). Id. at 32 (Livornese Deck, Ex. 11). It assigned his requests four processing numbers (No. 14-06366 through No. 14-06369), but did not provide a substantive response within 20 days. Id.-, Dkt. 16-2 at 6 (Edelman Aff. ¶ 19).

Edelman appealed the constructive denial of his FOIA request on May 20, 2014. Dkt. 16-2 at 44 (Edelman Aff., Ex. H). The SEC acknowledged his appeal, id. at 52 (Edelman Aff., Ex. I), but did not provide a substantive response, and on July 3, 2014, Edelman filed this suit, Dkt. 1. The SEC responded to Edelman’s requests in September 2014. On September 3, 2014, it informed him that it had identified no records responsive to Request No. 14-06367; identified and released 36 pages in response to Request No. 14-06368; and identified no records responsive to Request No. 14-06369. Dkt. 15-3 at 36 (Livornese Deck, Ex. 12), 42 (Ex. 14), 45 (Ex. 15). The SEC withheld portions of several pages under Exemptions 5 and 6. Id. at 42-43. On September 18, 2014, the SEC informed Edelman that it had identified and was releasing two pages in response to Request No. 14-06366, but that it had withheld portions of these pages under Exemption 6. Id. at 39 (Ex. 13).

6. Request No. H-06652 (Intragovem-mental Communications Regarding ESRT)

Edelman submitted his final FOIA request to the SEC on April 4, 2014. Dkt. 15-3 at 48 (Livornese Deck, Ex. 16). There, he requested “letters [and] e-mails to the SEC” and “notes from meetings or phone calls with the SEC from any government official” not employed by the SEC regarding ESRT. Id. The SEC assigned the request a processing number (No. 14-06652) but, as with the preceding requests, did not provide a substantive response within 20 days. Dkt. 16-2 at 34 (Edelman Aff., Ex. F); id. at 6 (Edelman Aff. ¶ 19).

Edelman appealed the constructive denial of his FOIA request on May 9, 2014. Dkt. 16-2 at 45 (Edelman Aff., Ex. H). On June 3, 2014, Humes acknowledged that the 20-day statutory timeframe had not been met and remanded the request to the agency’s FOIA office. Id. at 55 (Edelman Aff., Ex. I). The FOIA office did not provide a substantive response, and on July 3, 2014, Edelman brought this action. Dkt. 1. The SEC responded to this request on July 17, 2014. Dkt. 15-3 at 50 (Livornese Deck, Ex. 17). It told Edelman that it had not found any responsive records. Id.

B. Procedural Background

Edelman- brought this suit on July 3, 2014, to compel the SEC to respond to his FOIA requests. Dkt. 1. He seeks injunc-tive and declaratory relief, as well as an award of costs and fees. Id. at 9-10. As noted above, after Edelman brought suit, the SEC responded to the five FOIA requests that were still outstanding. The Commission then moved for summary judgment, arguing that it had conducted adequate searches in response to all of Edelman’s requests and that all of its with-holdings were permitted by FOIA. Dkt. 15. The SEC supports its motion with the declarations of two SEC officials — John Livornese, the SEC’s FOIA officer, and Patti Dennis, the official responsible for FOIA requests at the SEC’s Division of Corporate Finance — and a 26-page Vaughn index. See Dkts. 15-1, 15-2, 15-5. Edelman cross-moved for summary judgment, arguing that the SEC’s search was inadequate and that its withholdings are not permitted under FOIA. Dkt. 16. The motions are now fully briefed. Dkts. 18, 20.

II. LEGAL FRAMEWORK

The Freedom of Information Act is premised on the notion that an informed citizenry is “vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). The Act embodies a “general philosophy of full agency disclosure.” U.S. Dep’t of Defense v. FLRA, 510 U.S. 487, 494, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)). It thus mandates that an agency disclose “agency records” on request, unless they fall within one of nine exemptions. “These exemptions are ‘explicitly made exclusive’ and must be ‘narrowly construed.’ ” Milner v. Dep’t of Navy, 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (quoting EPA v. Mink, 410 U.S. 73, 79, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), and FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982)). As explained further below, the present dispute turns in part on the meaning and application of Exemption 5. Exemption 5 protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” See 5 U.S.C. § 552(b)(5). It exempts “those documents, and only those documents, normally privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (emphasis added). The dispute also turns on the meaning of the phrase “agency records,’’ which the statute does not define.

FOIA cases are typically resolved on motions for summary judgment under Federal Rule of Civil Procedure 56. See, e.g., Beltranena v. U.S. Dep’t of State, 821 F.Supp.2d 167, 175 (D.D.C.2011), To prevail on a summary judgment motion, the moving party must demonstrate that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed. R. Civ. P. 56. In a FOIA action, the agency may meet its burden by submitting “relatively detailed and non-conclusory” affidavits or declarations, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991), and an index of the information withheld, Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.Cir.1973); Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C.Cir.1998). An agency “is entitled to summary judgment if - no material facts are in dispute and if it demonstrates -‘that each document that falls within the class requested either has been produced ... or is wholly exempt from the [FOIA’s] inspection requirements.” Students Against Genocide v. U.S. Dep’t of State, 257 F.3d 828, 833 (D.C.Cir.2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978)). The Court reviews the agency’s decision de novo, and the agency bears the burden of sustaining its action. 5 U.S.C. § 552(a)(4)(B).

III. DISCUSSION

A. Exhaustion

The SEC first argues that its response to Edelman’s third request (No. 14-03398), which sought confidential documents submitted by ESRT, is not properly before the Court because Edelman failed to exhaust any challenge to that action. See Dkt. 15 at 5. “A FOIA requester is generally required to exhaust administrative appeal remedies before seeking judicial redress.” Citizens for Responsibility & Ethics in Washington v. FEC (CREW), 711 F.3d 180, 184 (D.C.Cir.2013). FOIA requires agencies to respond to a request for records within 20 business days. See 5 U.S.C. § 552(a)(6)(A)(i). If an agency faiis to respond within this period, the requester is. “deemed to have exhausted his administrative remedies” with respect to that request and may bring a FOIA action. Id. § 552(a)(6)(C)(i). But if the agency does respond, the requester is obligated to appeal any adverse response “to the head of the agency” before bringing suit. Id. § 552(a)(6)(A)(i); CREW, 711 F.3d at 184. The purpose of this rule is to provide the agency “an opportunity to exercise its discretion and expertise on the matter and to make a factual, record to support its decision.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 61 (D.C.Cir.1990). But the requirement is not jurisdictional. Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C.Cir.2003).

The procedural history of Edelman’s third request is more complicated than the history of Edelman’s other requests. As explained above, Edelman sent this request to the SEC on January 10, 2014. Dkt. 15-3 at 25 (Livornese Deck, Ex. 8). When the SEC failed to respond to it within 20 days, he filed an appeal with the Commission rather than bringing suit immediately. Dkt. 16-2 at 42 (Edelman Aff., Ex. H). On April 16, the. SEC’s associate general Counsel remanded the request to the FOIA office. Id. at 57 (Edelman Aff., Ex. J). Then, without mentioning the remand, the Commission responded' to Edelman’s request on April 29 by telling him that it had located no responsive records. Id. at 63 (Edelman Aff., Ex. L). It told him that he had “the right to appeal the adequacy of [its] search or finding of no responsive information.” Id. The following day, April 30, the SEC sent Edelman a second letter. Id. at 65. This letter-acknowledged the remand, stated that an SEC employee had been assigned to process it, and explained that Edelman would be “notified of the findings as soon as possible.” Id. Finally, on May 6, the SEC sent Edelman a third letter that more fully described his original réquest, reiterated the agency’s conclusion that no responsive records existed, and told Edelman that he had the right to appeal the response. See Dkt. 15-3 at 27 (Livornese Deck, Ex. 9). Edelman. did not appeal the agency’s response.

The SEC argues that Edelman failed to exhaust his challenge to the adequacy of its search for responsive records by not appealing its May 6, 2014 response. Dkt. 15 at 5. The Court agrees. The SEC remanded Edelman’s request to the FOIA office on April 16, 2014. See Dkt. 16-2 at 57 (Edelman Aff., Ex.' J). The Commission then provided a substantive response to the request nine business days later, on April 29, and an additional substantive response five business days after that, on May 6. See id. at 63 (Edelman Aff., Ex. L); Dkt. 15-3 at 27 (Livornese Deck, Ex. 9). Edelman concedes that he did not file an appeal from either response. Under the ordinary rule, Edelman should have appealed the office’s response in order to permit the SEC to “exercise its discretion and expertise” regarding the adequacy of the office’s search. See Oglesby, 920 F.2d at 61.

Edelman advances two arguments as to why his failure to appeal the agency’s decision on remand should be excused. First, he argues that because he could have proceeded directly to court before filing his initial appeal — because he would .have been “deemed to have exhausted his administrative remedies,” .5. U,S.C, § 552(a)(6)(C)(i) — he should be permitted to file suit at any point thereafter. But the D.C. Circuit has considered and rejected a form of this argument. In Oglesby, the plaintiff submitted FOIA requests for records to six agencies, only one of which met the statutory deadline..920 F.2d at 65. The other five nonetheless “completed their review and made their initial determinations on [Oglesby’s] requésts long before [Ogles-by] brought suit.” Id. Oglesby argued that he was not required to appeal the determinations in such a circumstance, because he could have taken advantage óf FOIA’s constructive exhaustion rule to sue before the agencies had made their determinations. Id, at 62. But the D.C. Circuit rejected his claim, interpreting the statute to “requir[e] the completion of the administrative appeal process before courts become involved, if the agency has responded to the request before suit is filed.” Id. at -65. That rule applies here as well. If “an administrative appeal is mandatory if the agency cures its failure to respond within the statutory period by responding to the FOIA request before suit is filed,” id., it stands to reason that the appeal is mandatory even if the agency’s failure to respond initially is “cured” only after a remand. Even accepting the view of the facts most favorable to Edelman, the SEC cured its initial failure to respond to his FOIA request in a timely manner by responding no later than May 6, ,2014, and arguably as early as April 29, 2014. Because it did so, Edelman cannot now rely on the SEC’s initial failure to timely respond to the request to excuse his failure to file an appeal from the Commission’s subsequent decision.

Edelman also argues that the purposes of the exhaustion requirement are not implicated when a FOIA requester takes an initial appeal and an agency remands in response. In essence, he argues that a FOIA requester should be deemed to have exhausted his administrative remedies if he exhausts them once, and to be permitted to proceed to court at any reasonable point thereafter. There may be 'circumstances under which requiring an appeal after an agency remands a case to the processing officer would not further the purposes of the exhaustion requirement. For instance, where an agency' initially responds to a FOIA request on the merits, the requester appeals, and the agency issues the same response on remand, the requester might argue that the purposes of the exhaustion requirement would not be furthered by an additional — and arguably futile — appeal. But this is not such a case. Here, the Commission initially failed to respond at all, and Edelman elected to appeal rather than file Suit in order to permit it an opportunity to do so. He then received a response on the merits on re,mand, just as the statute contemplates— and, indeed, that his appeal contemplated. If he believed that the SEC’s response was inadequate, his obligation was to file an appeal, j,ust as he had done earlier. His failure to do so deprived the SEC’s “top managers” of the opportunity to exercise their discretion to expand the search or to determine that there were in fact responsive records — that is, “to . correct mistakes,” if any, “made at lower levels and thereby obviate[ ] unnecessary judicial review.” Oglesby, 920 F.2d at 61. Because he did not appeal, the Court will not consider his challenge, to the search here.

B. Searches

With respect to the five remaining requests, Edelman argues that the SEC conducted inadequate searches. An agency has an obligation under FOIA to conduct an adequate search for responsive records. “An agency fulfills [this] obligation[ ] ... if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’ ” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325-26 (D.C.Cir.1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C.Cir.1990)). “In order to obtain summary judgment the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby, 920 F.2d at 68. Although the agency “cannot limit its search to only one record system if there are others that are likely to turn up the information requested,” it need not “search every record system.” Id. The agency can show that it conducted an adequate search by relying on “[a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to obtain responsive records (if such records. exist) were searched.” Valencia-Lucena, 180 F.3d at 326 (internal quotation marks omitted).

Edelman’s arguments focus on the SEC’s searches in response to his second request (for documents relating to the Empire State Building sublease) and his fourth request (for documents related to consumer complaints). Accordingly, the Court will address these searches individually before considering the overall adequacy of the SEC’s effort.

1. Edelman’s Second Request (Sublease)

Edelman’s second FOIA request (No. 14-03257) sought “all information” transmitted between SEC employees and ESRT (and its predecessor .entity) between January 12, 2012, and April 11, 2012, regarding the Empire State Building Sublease, including e-mails sent to or from SEC employees about the Sublease; “any notes from SEC meetings” in which the Sublease was mentioned; “any notes from phone conversations or correspondence of any nature between the SEC” and both entities, or their representatives, in which the Sublease was mentioned; any filings by ESRT or its predecessor referencing the Sublease; and any confidential filings by either entity referencing the Sublease. Dkt. 15-3 at 17-18 (Livornese Decl., Ex; 6). The SEC broke the request into five sub-components and performed searches for documents falling into each subcomponent. Dkt. 15-1 at 6 (Livornese Decl. ¶¶ 17, 20-21); Dkt. 15-2 at 3-5 (Dennis Deck ¶¶ 8-13). It ultimately found 215 pages of e-mail correspondence responsive to the first component of Edelman’s request. Dkt. 15-2 at 4 (Dennis Deck ¶ 9). It found no other responsive documents that the SEC had not already posted to its website. Id. at 4-5 (Dennis Deck ¶¶ 10-13).

Edelman argues that the SEC’s search was “inadequately narrow.” Dkt. 16-1 at 16. But he fails to support this conelusory allegation. His chief complaint is that the agency “furnished no records” responsive to four of five subcomponents of his request. Id. But “the adequacy of a FOIA search is generally determined not by the fruits of' the search, but by the appropriateness of the methods used to carry out the search.” See Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C.Cir.2003). And the declarations submitted by the SEC demonstrate that its efforts were adequate and its methods Well-tailored to Edelman’s bequest. Patti Dennis,- who ovérsees FOIA requests in the SEC’s Division of Corporate Finance, conducted the search for records responsive to this request. Dkt. 15-2 at 4 (Dennis Deck ¶9). She attests that she searched for notes from meetings, phone conversations, and correspondence relating to the sublease (the second and third subcomponents of Edelman’s request) by reaching out to. the “staff responsible for ESRT review” and, asking them to search for documents. See id. (Dennis Deck ¶ 10). These employees provided a log that they used to “track and share information” relating to ESRT, including “notes from meetings and phone conversations.” Id. Dennis examined the log for “the term[s] ‘lease’ and ‘sublease’ and found no responsive entries.” Id.

In addition, to locate ESRT’s confidential submissions to the SEC — the fifth sub-component of the request — -Dennis searched “non-public EDGAR,” an internal database of letters and responses submitted confidentially to the SEC that is not available to the public. Id. at 5 (Dennis Decl. ¶ 12); see also Dkt. 15-1 at 3-4. (Li-vorhese Decl. ¶ 11-12) (defining “non-public EDGAR” and attesting that the SEC’s “routine practice is to scan and Upload all submissions with Rule 83 confidentiality requests to non-public EDGAR”). She did not find any responsive records. Dkt. 15-2 at 5 (Dennis Decl. ¶ 12). With respect to exhibits filed by ESRT or its predecessor regarding the Sublease, Dennis attests that she “determined that any exhibits referencing the Sublease were public documents available dn the SEC’s website.” Id. at 4 (Dennis Decl. ¶ 11). Finally, Dennis attests that she searched for records that might be responsive to the first subcompo-nent of Edelman’s request by searching for the words “Empire State” and “sublease” in the e-mail archives of all SEC staff “who were directly and tangentially involved in the filing review.” Id. (Dennis Decl. ¶ 9). Dennis’s declaration thus makes clear that the SEC engaged in a good-faith search using methods reasonably calculated to. locate the information Edelman requested.

. Edelman nonetheless faults the SEC for failing to “consider[] the possibility ,of[] other sources of ‘information or communications’ between SEC employees and” ESRT and its predecessor entity. Dkt, 16-1 at 16. As a general matter, Edelman fails to identify what “other sources” might harbor communications between SEC employees and ESRT, and he therefore fails to offer support for his broad attack on the Commission’s search methodology. With respect, to one subcomponent of the search, however, he raises a more specific concern. As described by the- SEC, that subcompo-nent sought “all information or communications between SEC employees and Empire State Building Associates LLC or [ESRT] and their representatives” during a designated period “in which the Sublease for the Empire State Building ... is mentioned, including any and all emails from or to” certain SEC employees. Dkt. 15-2 at 3 (Dennis Decl. ¶ 8). Dennis explains that, in response, she collected and reviewed emails sent to various SEC employees. Id. at 4 (Dennis Decl. ¶ 9). But, as Edelman notes, that only captures a portion of the relevant request, which also sought “notes from phone conversations or correspondence” between ESRT and the SEC, “exhibits” filed by ESRT with the SEC,” and “submissions” from ESRT to the SEC. Dkt. 15-3 at 17-18 (Livornese Decl., Ex. 6).

Although Edelman is correct that Dennis’s description of her search for records responsive to the first - subcomponent of the request is narrower than the corresponding portion of the request, that error is immaterial in light of the overlap between the first subcomponent of the request and its other subcomponents. Dennis describes the second, third and fourth sub-components, for example, as seeking “notes from SEC meetings where the sublease” was mentioned, “notes from phone conversations or correspondence of any nature between the SEC and Empire State Building Associates LLC, [ESRT], or their representatives where the Sublease for the Empire State Building was mentioned,” and “exhibits filed by Empire State Building Associates LLC or [ESRT] that' reference the Sublease.” Dkt. 15-2 at 3 (Dennis Decl. ¶ 8). Dennis did not limit her searches with respect to these subcompo-nents to e-mails, and, in light of the overlap between the subcomponents, there is no reason to believe that the SEC’s overall search for responsive material would not have identified any material responsive to the first subcomponent of the request.

The Court, accordingly, concludes that the SEC conducted an adequate search in response to Edelman’s second request.

2. Edelman’s Fourth Request (“Consumer Complaints”)

The bulk of Edelman’s arguments concern the SEC’s searches in response to his fourth request (No. 14-03452) — his request for documents related to “consumer complaints.” Edelman argues that (1) the SEC erred in concluding that notes taken by SEC attorneys were not records subject to FOIA; (2) the SEC construed his request too narrowly by searching only for documents about consumer complaints, rather than for the complaints themselves; and (3) even presuming- that the SEC interpreted his request accurately, it conducted an inadequate search for documents about consumer complaints. Dkt. 16-1 at 14-16; Dkt. 20 at 5-16. The Court' agrees with Edel-man’s first two arguments, and accordingly orders the SEC to conduct additional searches in response to this request. The Court agrees with the SEC, however, that the searches it did ■ conduct were reasonable and adequate, for the reasons set out below. ■

a. Attorney Notes

Edelman’s first argument is that, the SEC erred in failing.to treat notes taken by several SEC attorneys as “agency records” subject to FOIA. See Dkt. 16-1 at 15-16; Dkt. 20 at 11 — 16. In its .search for records responsive to Edelman’s first and fourth FOIA requests, the SEC found 113 pages of notes taken by three SEC attorneys, but declined to produce them on the ground that they “were not agency records.” Dkt. 15-2 at 2 (Dennis Decl. ¶7). Although the record is not entirely clear, it appears that the attorneys took -these notes during agency meetings regarding ESRT and while participating in calls- between the SEC and investors regarding ESRT. Dkt. 18-1 at 2 (Second Dennis Decl. ¶¶3-4). Patti Dennis, who oversaw portions of the SEC’s -searches, attests -that the notes were made “during [the attorneys’] review of the ESRT transaction ... to keep track of what [they] had done and what [they] needed to do.” Id. at 3- (Second Dennis Decl. ¶ 7). She explains that “[n]o one instructed [the attorneys] to keep .the notes, or provided any guidance, on what notes to take”; that they “were not required to make or keep the notes”; and that they “kept their notes in their individual SEC offices,” “did not share them with each other or any other SEC employee,” and “did not place or incorporate [them] into the SEC’s file on the ESRT transaction.” Id. Accordingly, the SEC argues, the notes are not “agency records” subject to FOIA.

Surprisingly, -it is an open question within this circuit whether notes taken by individual agency employees in the course of performing their official duties are “agency records” subject to FOIA. See Bureau of Nat’l Affairs, Inc. v. U.S. Dep’t of Justice (BNA), 742 F.2d 1484, 1492-93 (D.C.Cir.1984) (noting, but not resolving, the issue). The district judges who have considered the question have held, by and large, that they are not. See Fortson v. Harvey, 407 F.Supp.2d 13, 15-16 (D.D.C.2005); Bloomberg, L.P. v. SEC, 357 F.Supp.2d 156, 166-67 (D.D.C.2004); Judicial Watch, Inc. v. Clinton, 880 F.Supp. 1, 11 (D.D.C.1995); AFGE Local 2782 v. U.S. Dep’t of Commerce, 632 F.Supp. 1272, 1277 (D.D.C.1986); British Airports Auth. v. Civil Aeronautics Bd., 531 F.Supp. 408, 415 (D.D.C.1982); see also Families for Free dom v. U.S. Customs & Border Protection, No. 10-2705, 2011 WL 4599592, at *6-7 (S.D.N.Y. Sept. 30, 2011) (finding employee notes.constituted “agency records,” but only on the ground that they were likely “producfed] for. use. by other agency personnel”). For the reasons discussed below, however, the Court disagrees and concludes that FOIA and the relevant caselaw do not support the categorical exclusion of notes taken and used solely by individual agency employees from the statute’s reach.

FOIA grants the district courts -“jurisdiction to enjoin [an] agency from withholding agency records and to order the production of any agency records improperly withheld” from the plaintiff. 5 U.S.C. § 552(a)(4)(B); see also Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). As the Supreme Court and the D.C. Circuit have repeatedly noted, however, the statute does not define the term “agency records,” and its legislative history provides little relevant guidance. See Forsham v. Harris, 445 U.S. 169, 178, 100 S.Ct. 977, 63 L.Ed.2d 293 (1980); Judicial Watch, Inc. v. U.S. Secret Service, 726 F.3d 208, 216 (D.C.Cir.2013); Consumer Fed. of America v. Dep’t of Agriculture (CFA), 455 F.3d 283, 287 (D.C.Cir.2006); BNA, 742 F.2d at 1488. Moreover, neither the Supreme Court nor the D.C. Circuit has adopted a hard-edged definition of “agency records” — at least as the phrase applies to documents created by federal employees in the course of their employment. Because these courts’ treatment of that term has differed based on the nature of the documents at issue, the Court will briefly outline the key cases on the issue.

The Supreme Court first addressed the definition of “agency records” in a pair of cases in 1980. The first case, Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, established the centrality of the concept of control to the analysis. In Kissinger, several reporters and news organizations sought a set of notes, summaries, and transcripts that documented phone conversations between Secretary of State Henry Kissinger and his-contacts, both personal and official. See id. at 140, 100 S.Ct. 960. Kissinger and the government argued that the notes were not “agency records,” but rather were personal in nature. Id. at 141-42, 100 S.Ct. 960. The lower courts granted summary judgment to the FOIA requesters with respect to those notes' taken while Kissinger was Secretary of State, but ruled for the government with respect to notes taken while Kissinger was a White House advisor, reasoning that the Office of the President was not an “agency” under FOIA, and that the simple fact that Kissinger had taken the notes with him to the State Department did not make them the Department’s records. Id. at 145-46, 100 S.Ct. 960. The Supreme Court affirmed that judgment with respect to the records Kissinger. had taken while serving as a White House advisor, but it reversed with respect to those records he had. taken while serving as Secretary of State, holding that, even if those records were “agency records,” the State Department could not have withheld them because they were no longer under the Department’s control. Id. at 154-56, 100 S.Ct. 960. The Court thus left unresolved the question whether notes and transcripts of calls in which some agency business was conducted could be considered “agency records” under. FOIA.

The second. 1980 case, Forsham v. Harris, 445 U.S. 169, 100 S.Ct. 977, emphasized the importance of possession to the analysis. In Forsham, the plaintiffs filed a number of FOIA requests with the Department of Health, Education, and Welfare (“HEW”), seeking the raw data generated and used by a federal grantee in the process - of studying diabetes treatments. See id. at 171, 100 S.Ct. 977. The Supreme Court held that the raw data did not count as an agency record, stating “an agency must ... either create or obtain a record as a prerequisite to its becoming an ‘agency record’ within the meaning of the FOIA.” Id. at 182, 100 S.Ct. 977. Because HEW never obtained the data, it was not an “agency record,” and FOIA did not apply. Id. at 186, 100 S.Ct. 977.

These two strands of the caselaw were brought together a decade later in the Tax Analysts litigation. Tax Analysts v. U.S. Dep’t of Justice, 845 F.2d 1060 (D.C.Cir.1988), aff'd sub nom. U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989). In that case, the publisher of the Tax-Notes magazine filed a FOIA request with the U.S. Department of Justice, seeking copies ‘of all district court tax opinions and final orders identified in the Tax Division’s weekly logs. 845 F.2d at 1063. The Department denied the request on the ground that the opinions and orders were not “agency records,” and the district court sustained the withholding. Id. The D.C. Circuit reversed. See id. at 1067-69. Adopting a test borrowed from the Eleventh Circuit, it held that the question of whether records were “agency records” turned on four factors:

[1] the intent of the document’s creator to retain or relinquish control over the records; [2] the ability of the agency to use .and dispose of the record as it sees fit; [3] the extent to which agency personnel have read or relied upon the document; and [4] the degree to which the document was integrated into the agency’s record system or files.

Id. at 1069 (quoting Lindsey v. Bureau of Prisons, 736 F.2d 1462, 1465 (11th Cir.), vacated on other grounds, 469 U.S. 1082, 105 S.Ct. 584, 83 L.Ed.2d 695 (1984) (per curiam)). Applying that test, the D.C. Circuit held that the tax opinions and orders were “agency records.” Id. at 1067.

■The Supreme Court granted certiorari and affirmed. 492 U.S. at 138, 109 S.Ct. 2841. But it declined either to embrace or reject the four-factor test. It stated instead that “[t]wo requirements emerge from Kissinger and Forsham” — “[fjirst, an agency must ‘either create or obtain’ the requested materials,” and “[s]econd, the agency must be in control of the requested materials at the time the FOIA request is made.” Id. at 144-45, 109 S.Ct. 2841. Applying those two factors, the Court held that there was no doubt that the Department of Justice had both obtained and controlled the tax opinions — and so there was no doubt that they were “agency records.” Id. at 146-47, 109 S.Ct. 2841. This was so,' the Court held, even though the Department had no authority to alter or amend the content of the opinions, and even though the opinions were not created for the purpose of assisting the Department. Id. at 147, 109 S.Ct. 2841. As the Court explained, the “intent of the creator of a document relied upon by an agency” does not matter, id.-, what matters is that the document came “into the agency’s possession in the legitimate conduct of its official duties,” id. at 145, 109 S.Ct. 2841.

The continuing vitality of the four-factor test established by the D.C. Circuit in the Tax Analysts litigation is not entirely clear. On the one hand, the D.C. Circuit has continued to apply that test in many subsequent cases, explaining that it fleshes out the requirement that records be in the agency’s control. See United We Stand America, Inc. v. IRS, 359 F.3d 595, 599 (D.C.Cir.2004); see also Burka v. HHS, 87 F.3d 508, 515 (D.C.Cir.1996). And many of the district courts to have considered whether employees’ notes are ‘agency records’ under FOIA have relied upon the four-factor test, see, e.g., Fortson, 407 F.Supp.2d at 15; Bloomberg, 357 F.Supp.2d at 162-63, much as the parties urge the Court to do here, see Dkt. 18 at 7; Dkt. 20 at 12. On the other hand, the D.C. Circuit has just as often eschewed the four-factor test in analyzing whether a document is an “agency record,” instead employing one of several other approaches more sensitive to the facts and circumstances of each case. See, e.g., Judicial Watch, Inc. v. U.S. Secret Service, 726 F.3d 208, 220-21 (D.C.Cir.2013) (noting the “considerable indeterminacy” of the framework and instead applying an alternate test used -to address whether records created by Congress are “agency records”); United We Stand America, 359 F.3d at 600 (same); see also Cause of Action v. Nat'l Archives & Records Admin., 753 F.3d 210, 214-15 (D.C.Cir.2014) (calling the framework “problematic” and “declining] to use” it); Gallant v. NLRB, 26 F.3d 168, 171-72 (D.C.Cir.1994) (citing but not applying the framework).

In two cases somewhat analogous to the present one, the D.C. Circuit has considered the question of when a record — in those cases, an employee’s calendar — is an agency record rather than a personal one. See CFA, 455 F.3d at 285-86; BNA, 742 F.2d at 1486-87. The first of these cases, BNA, was decided before the D.C. Circuit and the Supreme Court decided the Tax Analysts case. The BNA Court, eschewing the categories adopted by some other circuits in the wake of Kissinger and Fotsham, rejected any effort to “compartmentalize” the issue “rigidly into either a ‘control’ or a ‘use’ analysis.” 742 F.2d at 1490. Instead, the D.C.' Circuit stressed that the inquiry “must focus on a variety of factors surrounding the creation, possession, control, and use of the document by an agency.” Id. The second case, CFA, was decided after both Tax Analysts decisions, but it also looked to the “totality of the .circumstances .... to distinguish ‘agency records’ from personal records.” CFA, 455 F.3d at 287 (citing BNA, 742 F.2d at 1490). In doing so, the CFA Court quoted the Tax Analysts four-factor test in a footnote, id. at 287 n. 7, but — over the objection of the concurring judge, see id. at 293-94 (Henderson, J., concurring) — relied primarily on BNA as the “template” for resolving the appeal, id. at 288 (majority opinion). In both cases, because the calendars at issue were “created by agency employees and were located within the agency,” CFA, 455 F.3d at 289, the question whether the calendars were agency records or personal records turned on fhe “control” and the “use” of the calendars — that is, (1) whether the agency or the employee controlled the calendars and (2) the manner in which the calendars were used within the agency, id. at 289-93; BNA, 742 F.2d at 1494. In each case, the analysis ultimately came down to the use of the calendars, and in particular the question whether -the calendars were used to “facilitate[ ] the day-to-day operations of the”, agency or were used only “ ‘for the convenience of the individual official ]’ in organizing .his. ‘personal and business appointments;’” See CFA, 455 F.3d at 288 (quoting BNA, 742 F.2d at 1495-96).

The “totality of the circumstances” test applied in CFA and BNA — rather than the four-factor framework used in Tax Analysts — best fits this case. As in CFA and BNA, the present dispute is not over who controls records created by another entity (as it was in Tax Analysts) but rather over whether records created by an employee should be attributed to the employee or to the agency. Cf. BNA, 742 F.2d at 1492 (“[T]he question presented by these cases is whether, - when an employee creates a document, that creation can be attributed to the agency under FOIA.”). As a threshold matter, however, it is plain that even CFA and BNA do not precisely fit the question presented, since the notes at issue here are unlike the calendars in those cases in one important way: there is no assertion that the notes contain any per sonal content at all. It was difficult- to assess whether the calendars in CFA and BNA (as well as, for that matter, the records in Kissinger) were agency records or personal records because they contained references to “personal appointments wholly unrelated to the business of the” agency as well as official appointments. See CFA, 455 F.3d at 288, 292; BNA, 742 F.2d at 1496. By contrast, the notes in this case contain no personal content whatsoever, or at least the SEC has not suggested that they do. According to Dennis, who oversaw the search for responsive records, the notes were taken “during [the attorneys’] review of the ESRT transaction” — that is, in the course of the attorneys’ official duties. Dkt. 18-1 at 3 (Second Dennis Deck ¶7). Dennis does not suggest that the notes contain any content that is not related to the attorneys’ work at the SEC. The SEC merely argues that' the notes are not agency records because, although the attorneys created them in furtherance of their official duties, they did so- individually, not at the agency’s behest. This differs from the concern that animated the D.C. Circuit’s opinions in CFA and BNA — or at least it was not the primary concern manifested in those opinions.

There is thus an argument that the attorney notes in this case do not even implicate the issue that gave the D.C. Circuit pause in CFA and BNA because there is no showing that the notes contain any personal content. Based on this distinction, it might be possible to short-circuit the analysis and simply conclude that the records at issue are not “personal” in nature and thus can only be “agency records,” But to the extent that CFA and BNA stand for the proposition that the Court must consider the “totality of the circumstances,” including “the creation, possession, control, and use of the document by the agency,” BNA, 742 F.2d at 1490, 1492; CFA, 455 F.3d at 287, there is no reason to doubt that the test is sufficiently- flexible and capacious to apply to the present case. The Court will therefore proceed to apply the-principles identified-in those cases.

The Court begins with two premises that guided the D.C. Circuit in CFA and ÉNA. First, as a threshold matter, the Court must ensure “that ‘[t]he term.‘agency records! ... [is .not] manipulated to avoid the basic structure of the FOIA: records are presumptively disclosable unless the government can show that one of the enumerated -exemptions applies.’” CFA, 455 F.3d at 287 (quoting BNA, 742 F.2d at 1494). This means,- among other things, that the Court must avoid eoiiflating the question whether records are “agency records” with the distinct question whether those records can appropriately be withheld under a FOIA exemption. See BNA, 742 F.2d at 1494. Second, as in BNA and CFA, two important facts are not in disputé — the parties agree that'the employee notes at issue here, like the calendars in those' cases, “were created by agency employees and were located within the agency.” See CFA, 455 F.3d at 289. As a result, of the four “principal factors identified in [BNA ] — creation, location/possession, control and use” — the dispositive factors here are control and use. Id. at 288. The Court will address those two factors in turn.

i. Control. The SEC argues that it does not control the notes because the employees were not required to keep them, the SEC did not provide “any guidance on what notes to take or how to use them,” and they were not incorporated into the SEC’s files (or, alternatively and more specifically, into its file on the ESRT transaction). See Dkt. 18 at 7-8; Dkt, 18-1 at 3 (Second Dennis Decl. ¶7). But the Commission’s. assertions .-rest -on misunderstandings of the law and facts. As a matter of law, it is not at all clear whether the Federal Records Act (“FRA”) or the SEC’s regulations would have obligated the. attorneys to maintain the notes that were the .topic of Edelman’s two requests. See CFA, 455 F.3d at 289 (“Determining ... whether the USDA employees are in fact free to' dispose of their calendars ... is a complicated endeavor, one that both parties largely avoid.”); cf. Forsham, 445 U.S. at 183 & n. 14, 100 S.Ct. 977 (defining “records” under the FRA as, inter alia, documents that serve as “evidence of the ... activities of the Government”). Indeed, Edelman has provided the Court with a memorandum that appears to require that SEC employees preserve “[s]taff notes, including notes of meetings or phone calls” and “interview notes” for ten years after the close of an investigation, Dkt. 20-1 at 25, and it is difficult to imagine that the SEC does not at least require that its staff maintain some record of witness interviews. But the Court need not conclusively decide this issue. As the D.C. Circuit explained in CFA, there is no need to decide “whether retention . of the [notes] was wholly within the officials’ discretion,” because it is clear that documents can be “agency records” under FOIA even if they need not have been preserved (or created) under federal law or agency practice. CFA, 455 F.3d at 289.

The SEC also argues that the notes were not integrated into its “files” — a factor discussed in both BN A and in Kissinger. But the question whether the notes were integrated into the SEC’s “files” is a complicated one, driven as much by labels as by substance. As the D.C. Circuit noted in CFA, see id. at 290, the Supreme Court’s reference to agency “files” in Kissinger is difficult to interpret. The Court stated’ in that ease that the transcripts of calls made by Kissinger during his White House tenure did not become agency records under FOIA when he brought them to the State Department, because, among other things, they “never entered the ... Department’s files.” 445 U.S. at 157, 100 S.Ct. 960. But, as the CFA panel observed, it is not clear from Kissinger in what way the transcripts did not enter the State Department’s files. See CFA, 455 F.3d at 290 (observing that there is no “indication that the Kissinger Court used the term ‘files’ in a technical sense”). Here, there is little basis to believe that the notes did not enter the SEC’s files under the commonsense meaning of that term. The attorneys stored the “notes in their individual SEC offices,” although it is unclear' from the record whether those notes were kept exclusively in “paper files” or also on their “computer drives.” Dkt. 18-1 at 3 (Second Dennis Decl. ¶¶ 5, 7). To the extent the notes were on the SEC’s computer system, they were “necessarily subject[ed] ... to the control of that system’s administrators.” See CFA, 455 F.3d at 290. And it is hard to understand why it would matter, for the purposes of FOIA, whether a document is kept on an attorney’s agency computer or in her agency desk — at least to the extent the document concerns agency business rather than personal matters. Indeed, it is safe to assume that some of the most consequential records in the government have at times resided in individual offices rather than in agencies’ centralized filing systems. Treating those records as beyond FOIA’s reach cannot be squared with the statutory goal of “openfing] agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (internal quotation marks omitted); see Dep’t of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 772, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989); Tax Analysts, 492 U.S. at 142, 109 S.Ct. 2841.

ii. Use. The SEC responds that the distinction between keeping records in one’s desk and keeping them on an agency shared drive is relevant to the final part of the BNA analysis: how the record was used within the agency. The SEC argues that this factor is dispositive in this case, because-the attorneys.“did not share [the notes] with each other or any other SEC employee” and did not “incorporate any of these notes into the SEC’s file on the ESRT transaction.” Dkt. 18-1 at 3 (Second Dennis Decl. ¶ 7). Accordingly, the SEC contends, the notes are distinct from the employee calendars found to be agency records in CFA and BNA, which were “ ‘distributed to other employees’ rather than ‘retained solely for the convenience of the individual officials.’ ” CFA, 455 F.3d at 291 (quoting BNA, 742 F.2d at 1496)". But the SEC places too much weight on isolated language from these cases. The reason the D.C. Circuit focused on the distribution of the calendars in those cases was that their distribution served as evidence that they “were created for the purpose of conducting agency business” BNA, 742 F.2d at 1496 (emphasis added). By contrast, those calendars not distributed to other agency employees were likely “created for the personal convenience of individual officials so that they could organize both their personal and business appointments.” Id. (emphasis added). The distinction observed by these courts makes sense: it is the distinction between records that may contain personal information (like doctor appointments, school plays, and planned vacations) that an employee uses to organize her days and-those records that relate primarily to the business of the agency.

The SEC argues that the notes here were created “for the personal convenience” of the SEC attorneys, too, in that the employees were not required to take notes during the calls and meetings" but instead simply found it convenient to do so. But this argument also misunderstands the-nature of the exception for" personal records. The fact that the attorneys were not required to take notes does not mean that, when they did so, they were doing so for personal reasons rather than professional ones.- Nothing in the record here suggests that the attorneys’ notes were akin to “a personal diary containing an individual’s privaté reflections on his or her work- — but which the individual does not rely upon to perform his -or her duties.” Id. at 1493. Instead, what little evidence the SEC has submitted shows that the notes “facilitated the day-to-day operations of the” SEC’s review of the ESRT transaction, whether or not they were incorporated into the official file that was created to accompany that review. Id. at 1495. It is thus incorréct to assért that the notes were created for the “personal convenience” of the attorneys; it is more accurate to say that they were created for attorneys’ “professional convenience.” Such records are not categorically shielded from FOIA’s reach, whether or not they were distributed within the agency. To make distribution the centerpiece of the “agency records” analysis cannot be squared with the purposes of FOIA. "Under the SEC’s view, the notes that Kissinger took while Secretary of State would have been protected from FOIA if hé had kept them in his desk but would have been subject to the Act had he shared them with Department staff. Such a rule would permit agency officials to evade FOIA simply by locking away the notes they use to conduct agency business, regardless of their content or their importance. That is inconsistent with the spirit and the letter of the law.

Many of the district courts to have addressed this question in the past have acted out of a concern for the chilling effect that a contrary conclusion could have on agency business. See, e.g., British Airports Auth., 531 F.Supp. at 416 (reasoning that the disclosure of such documents would have an “adverse effect ... on the day-today work routines of agency officials”). But see BNA, 742 F.2d at 1494 (disapproving of this reasoning and stating that “[t]he policy concerns underlying the court’s opinion are addressed more appropriately to the applicability of particular [FOIA] exemptions”). The Court is sensitive to that. concern. ■ In particular, the Court is cognizant of the impact that the disclosure of empl