Securities Regulation Daily Wrap Up, ENFORCEMENT—D.D.C.: SEC can’t hold back Elon Musk’s likeness and voice as revealed in video of agency interview, (Mar 23, 2026)
Law Firms Mentioned:Reporters Committee For Freedom of the Press
Organizations Mentioned:Jigsaw Productions, Inc.
The court said the SEC failed to show any concrete or focused harm that would result from releasing video of Musk being interviewed by agency civil enforcement officials.
A judge in Washington, D.C. has ordered the SEC to produce to a documentary film company a video interview the agency recorded that depicts the agency’s civil enforcement investigators interviewing Elon Musk. The SEC had sought to invoke several exemptions under the Freedom of Information Act (FOIA) to keep the video from public view, but the court noted that Musk is a well-publicized celebrity and that the agency had already released the interview transcript, thus lessening the SEC’s interest in protecting the video from publication. The SEC was ordered to release the video to the extent it depicts Musk within 60 days (Jigsaw Productions, Inc. v. SEC, No. 24-cv-2358 (D.D.C. Mar. 23, 2026)).
The court explained that FOIA contains nine exemptions under which federal agencies can deny the release of public records at least for limited periods of time. For purposes of the Musk interview, a somewhat recent amendment to FOIA came into play. That amendment added a foreseeable harm element to the calculus of whether government records must be released such that an agency now must, in a case such as this one, show that one of the FOIA exemptions applies and that disclosure would foreseeably harm an interest protected by the exemption. The court also noted that, while the legal analysis must address each element separately, the two inquiries often overlap.
The SEC asserted FOIA exemptions 6 and 7(C) as the bases to protect the Musk video. Exemption 6 addresses personal information of a particular individual which would constitute a clearly unwarranted invasion of personal privacy. The court emphasized the word “clearly” in explaining that exemption 6 has a high threshold. By comparison, exemption 7(C) has a lower threshold and addresses information gathered for law enforcement purposes which would result in an unwarranted invasion of personal privacy. The court noted that when this combination of exemption is at issue, courts often focus on exemption 7(C).
The court’s analysis began by observing that Jigsaw did not dispute that the information about Musk that was contained in the SEC video pertained to personal information covered by exemption 6 and law enforcement information covered by exemption 7(C). Jigsaw instead argued that the SEC failed to show any substantial privacy interest or foreseeable harm to Musk from disclosure of the video.
The court agreed with that conclusion and restated the standard thus: “Because the SEC has previously disclosed the fact and substance of Musk’s interview by releasing the transcript and bringing a highly public civil enforcement action against him, the typical reasons for withholding law enforcement records—such as the stigma associated with law enforcement investigations—do not hold weight,” said the court. “The cat is out of the bag.”
The court added: “The SEC must provide a focused and concrete demonstration of why the particular type of material at issue—the video and audio of an interview whose contents are already public—will foreseeably harm a substantial privacy interest” (emphasis in original; internal quotations and citations omitted).
Applying this standard, the court distinguished many of the authorities cited by the SEC for protecting the video from publication. The court also addressed multiple assertions by the SEC about how Musk, and other individuals (including another Tesla executive) had privacy interests in their “voices and images.” The court conceded that, in the abstract that was true, but that the specific facts of the case did not warrant further protection.
More specifically, the court explained that Musk is a highly public person and did not appear to have been promised confidentiality by the SEC. The court noted there were no assertions that Musk was distressed by questions asked about “intimate or sensitive” topics during the interview or that the video otherwise captured embarrassing behavior by Musk. The court also rejected the argument that a person such as Musk, who has given numerous video interviews and who previously has been the subject of deep fakes, could experience a more than de minimis risk of new deep fakes that might be created based on one additional video depicting Musk’s interview with SEC officials.
As a result, the SEC was ordered to, within 60 days, release the video to the extent it matched the unredacted portions of the written transcript. The court said the SEC may redact from the video and the audio component of the video any individuals other than Musk.
The case is No. 24-cv-2358.
Judge: Chutkan, T.
Attorneys: Adam Alexander Marshall (Reporters Committee For Freedom of the Press) for Jigsaw Productions LLC. Kevin Dean Solonsky for the SEC.
Companies: Jigsaw Productions, Inc.
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