[Federal Register Volume 68, Number 163 (Friday, August 22, 2003)]
[Rules and Regulations]
[Pages 50688-50689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-21543]


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FEDERAL ELECTION COMMISSION

11 CFR Part 111

[Notice 2003-15]


Statement of Policy Regarding Deposition Transcriptions in 
Nonpublic Investigations

AGENCY: Federal Election Commission.

ACTION: Statement of policy.

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SUMMARY: The Federal Election Commission announces an alteration to its 
historic practice with regard to transcripts of depositions in 
enforcement matters to permit deponents to obtain a copy of the 
transcript of their own deposition so long as there is no good cause to 
limit the deponent to an opportunity to review and sign the transcript.

EFFECTIVE DATE: August 22, 2003.

FOR FURTHER INFORMATION CONTACT: Lawrence L. Calvert, Deputy Associate 
General Counsel for Enforcement, Federal Election Commission, 999 E 
Street NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: When Federal Election Commission attorneys 
take a deponent's sworn testimony at an enforcement deposition 
authorized by 2 U.S.C. 437d(a)(4), only the deponent and his or her 
counsel may attend. Under historic practice, the deponent has the right 
to review and sign the transcript. 11 CFR 111.12(c) (applying Fed. R. 
Civ. P. 30(e) to Commission enforcement depositions). However, a 
deponent who is also a respondent is not currently allowed to obtain a 
copy of, or take notes when reviewing, his or her own transcript unless 
and until the General Counsel has transmitted, pursuant to 2 U.S.C. 
437g(a)(3), a brief

[[Page 50689]]

recommending that the Commission find probable cause to believe that 
the respondent has violated or is about to violate the Federal Election 
Campaign Act of 1971, as amended (``the Act''), or Chapters 95 or 96 of 
Title 26, U.S. Code. The Office of General Counsel does not currently 
offer other deponents an opportunity to obtain their transcripts; once 
the entire matter has been closed, other deponents can copy the 
transcript at their own expense if the transcript is made part of the 
public record.
    The Commission recently invited the public to comment on various 
aspects of the agency's enforcement practices, including whether and 
when transcripts of depositions should be released and to whom. See 
``Enforcement Procedures,'' Notice 2003-9, 68 FR 23311 (May 1, 2003). 
One possible change in practice included in the notice was for the 
Office of General Counsel to routinely allow deponents who are also 
respondents to procure immediately a copy of their own transcripts 
unless, on a case-by-case basis, the General Counsel concluded (or the 
Commission concluded, on the recommendation of the General Counsel) 
that it was necessary to the successful completion of the investigation 
to withhold the transcript until completion of the investigation.
    On June 11, 2003, the Commission held a public hearing on its 
enforcement practices. At the hearing, counsel for the regulated 
community suggested changes to the agency's enforcement procedures, 
including its deposition policy. Some of those testifying suggested 
that deponents be allowed to obtain copies of their own depositions 
immediately after the deposition, contrary to the historic practice. 
Several of these commenters also noted that the Commission's practice 
regarding depositions contrasts with that of some other civil law 
enforcement agencies during the investigative stage of their 
proceedings.
    The Commission is governed, in part, by the Administrative 
Procedure Act (APA). Under the APA, ``[a] person compelled to submit 
data or evidence is entitled to retain or, on payment of lawfully 
proscribed costs, procure a copy or transcript thereof, except that in 
a nonpublic investigatory proceeding the witness may for good cause be 
limited to inspection of the official transcript of his testimony.'' 5 
U.S.C. 555(c). One example of ``good cause'' recognized by courts is a 
concern that witnesses still to be examined might be coached. See 
Commercial Capital Corp. v. SEC, 360 F.2d 856, 858 (7th Cir. 1966). In 
the past, all open investigations have been considered as falling 
within the APA's good-cause exception based on the potential for 
deponents to share their testimony with third parties. The Commission 
and its Office of General Counsel have also been mindful of the Federal 
Election Campaign Act's requirement that ongoing investigations be kept 
confidential.\1\
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    \1\ Under 2 U.S.C. 437g(a)(12): ``Any notification or 
investigation made under this section shall not be made public by 
the Commission or by any person without the written consent of the 
person receiving such notification or the person with respect to 
whom such investigation is made. Any member or employee of the 
Commission, or any other person, who violates the provisions * * * 
shall be fined not more than $2,000. Any such member, employee, or 
other person who knowingly and willfully violates the provisions * * 
* shall be fined not more than $5,000.''
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    Other federal agencies that conduct nonpublic investigations have 
adopted policies that interpret the APA's good-cause exception more 
narrowly. For example, in 1964 the Federal Communications Commission 
adopted a policy whereby: ``In any matter pending before the 
Commission, any person submitting data or evidence, whether acting 
under compulsion or voluntarily, shall have the right to retain a copy 
thereof, or to procure a copy * * * of any transcript made of his 
testimony, upon payment of the charges therefor to the person 
furnishing the same, which person may be designated by the Commission. 
The Commission itself shall not be responsible for furnishing the 
copies.'' 47 CFR 1.10. In 1972, the Securities and Exchange Commission 
adopted its current rule on this subject, which is similar to the 
FCC's. See 17 CFR 203.6. Likewise, the practice of the Commodity 
Futures Trading Commission is governed by 17 CFR 11.7(b), which states: 
``A person compelled to submit data or evidence in the course of an 
investigatory proceeding shall be entitled to retain or, upon payment 
of appropriate fees * * * procure a copy or transcript thereof, except 
that the witness may for good cause be limited to inspection of the 
official transcript of his testimony.''
    After carefully reviewing the comments submitted to it on this 
matter and considering the experience of other federal agencies 
regarding deposition transcripts in nonpublic investigations, the 
Commission hereby announces that, from the date of publication of this 
notice, it will permit deponents in enforcement matters to obtain, upon 
request to the Office of General Counsel, a copy of the transcript of 
their own deposition. The Commission has determined that it can 
maintain the integrity of its investigations even if current practice 
is altered, so long as access to transcripts may still be denied upon 
determination that good cause exists for doing so, and so long as 
third-party witnesses (or deponents who are also respondents in matters 
with multiple respondents) are granted access to their transcripts 
subject to the confidentiality requirements of the Act.
    Accordingly, in all matters open and pending before the Commission 
on or after the date of publication of this notice, a deponent may, in 
writing, request a copy of his or her own deposition transcript. The 
request may be made at any time after the deposition concludes. The 
Office of General Counsel will review the request and, absent good 
cause to the contrary, it will notify the deponent and the court 
reporter in writing that the deponent may obtain a copy of the 
transcript, at his or her own cost, from the court reporter. If the 
Associate General Counsel or her deputy determined that there was 
reason to invoke the good-cause exception, this Office would notify the 
deponent and the Commission. This change would not in any way affect 11 
CFR 111.12(c).

    Dated: August 18, 2003.
Michael E. Toner,
Commissioner, Federal Election Commission.
[FR Doc. 03-21543 Filed 8-21-03; 8:45 am]
BILLING CODE 6715-01-P