[Federal Register Volume 68, Number 243 (Thursday, December 18, 2003)]
[Rules and Regulations]
[Pages 70426-70428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-31241]


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FEDERAL ELECTION COMMISSION

11 CFR Parts 4 and 111

[Notice 2003-25]


Statement of Policy Regarding Disclosure of Closed Enforcement 
and Related Files

AGENCY: Federal Election Commission.

ACTION: Statement of policy.

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SUMMARY: The Commission is adopting an interim policy with respect to 
placing closed files on the public record in enforcement, 
administrative fines, and alternative dispute resolution cases. The 
categories of records that will be included in the public record are 
described below. This is an interim policy only; the Commission will 
conduct a rulemaking in this respect, with full opportunity for public 
comment, in 2004.

EFFECTIVE DATE: January 1, 2004.

FOR FURTHER INFORMATION CONTACT: Vincent J. Convery, Jr., Assistant 
General Counsel, 999 E Street, NW., Washington, DC 20463, 202-694-1650 
or 1-800-424-9530.

SUPPLEMENTARY INFORMATION: The ``confidentiality provision'' of the 
Federal Election Campaign Act, 2 U.S.C. 431 et seq., (FECA), provides 
that: ``Any notification or investigation under [Section 437g] shall 
not be made public by the Commission * * * without the written consent 
of the person receiving such notification or the person with respect to 
whom such investigation is made.'' 2 U.S.C. 437g(a)(12)(A). For 
approximately the first twenty-five years of its existence, the 
Commission viewed the confidentiality requirement as ending with the 
termination of a case. The Commission placed on its public record the 
documents that had been considered by the Commissioners in their 
determination of a case, minus those materials exempt from disclosure 
under the FECA or under the Freedom of Information Act, 5 U.S.C. 552, 
(FOIA). See 11 CFR 5.4(a)(4). In AFL-CIO v. FEC, 177 F.Supp.2d 48 
(D.D.C. 2001), the district court disagreed with the Commission's 
interpretation of the confidentiality provision and found that the 
protection of section 437g(a)(12)(A) does not lapse at the time the 
Commission terminates an investigation. 177 F.Supp.2d at 56.
    Following that district court decision, the Commission placed on 
the public record only those documents that reflected the agency's 
``final determination'' with respect to enforcement matters. Such 
disclosure is required under section 437g(a)(4)(B)(ii) of the FECA and 
section (a)(2)(A) of the FOIA. In all cases, the final determination is 
evidenced by a certification of Commission vote. The Commission also 
continued to disclose documents that explained the basis for the final 
determination. Depending upon the nature of the case, those documents 
consisted of General Counsel's Reports (frequently in redacted form); 
Probable Cause to Believe Briefs; conciliation agreements;

[[Page 70427]]

Statements of Reasons issued by one or more of the Commissioners; or, a 
combination of the foregoing. The district court indicated that the 
Commission was free to release these categories of documents. See 177 
F.Supp.2d at 54 n.11. In administrative fines cases, the Commission 
began placing on the public record only the Final Determination 
Recommendation and certification of vote on final determination. In 
alternative dispute resolution cases, the public record consisted of 
the certification of vote and the negotiated agreement.
    Although it affirmed the judgment of the district court in AFL-CIO, 
the Court of Appeals for the District of Columbia Circuit differed with 
the lower court's restrictive interpretation of the confidentiality 
provision of 2 U.S.C. 437g(a)(12)(A). The Court of Appeals stated that: 
``the Commission may well be correct that * * * Congress merely 
intended to prevent disclosure of the fact that an investigation is 
pending,'' and that: ``deterring future violations and promoting 
Commission accountability may well justify releasing more information 
than the minimum disclosures required by section 437g(a).'' See AFL-CIO 
v. FEC, 333 F.3d 168 (D.C. Cir. 2003) at 174, 179. However, the Court 
of Appeals warned that, in releasing enforcement information to the 
public, the Commission must ``attempt to avoid unnecessarily infringing 
on First Amendment interests where it regularly subpoenas materials of 
a `delicate nature * * * represent[ing] the very heart of the organism 
which the first amendment was intended to nurture and protect.' '' Id. 
at 179. (Citation omitted). The decision suggested that, with respect 
to materials of this nature, a ``balancing'' of competing interests is 
required--on one hand, consideration of the Commission's interest in 
promoting its own accountability and in deterring future violations 
and, on the other, consideration of the respondent's interest in the 
privacy of association and belief guaranteed by the First Amendment. 
Noting that the Commission had failed to tailor its disclosure policy 
to avoid unnecessarily burdening the First Amendment rights of the 
political organizations it investigates, id. at 178, the Court found 
the agency's disclosure regulation at 11 CFR 5.4(a)(4) to be 
impermissible. Id. at 179.
    The Commission is issuing this interim policy statement to identify 
several categories of documents integral to its decisionmaking process 
that will be disclosed upon termination of an enforcement matter. The 
categories of documents that the Commission intends to disclose either 
do not implicate the Court's concerns, e.g., categories 8, 9 and 10, 
or, because they play a critical role in the resolution of a matter, 
the balance tilts decidedly in favor of public disclosure, even if the 
documents reveal some confidential information.
    With respect to enforcement matters, the Commission will place the 
following categories of documents on the public record:
    1. Complaint or internal agency referral;
    2. Response to complaint;
    3. General Counsel's Reports that recommend dismissal, reason to 
believe, no reason to believe, no action at this time, probable cause 
to believe, no probable cause to believe, no further action, or 
acceptance of a conciliation agreement;
    4. Notification of reason to believe findings (including Factual 
and Legal Analysis);
    5. Respondent's response to reason to believe findings;
    6. Briefs (General Counsel's Brief and Respondent's Brief);
    7. Statements of Reasons;
    8. Conciliation Agreements;
    9. Evidence of payment of civil penalty or of disgorgement; and
    10. Certifications of Commission votes.
    In addition, the Commission will make certain other documents 
available which will assist the public in understanding the record 
without intruding upon the associational interests of the respondents. 
These are:
    1. Designations of counsel;
    2. Requests for extensions of time;
    3. Responses to requests for extensions of time; and
    4. Closeout letters.
    The Commission is placing the foregoing categories of documents on 
the public record in all matters it closes on or after January 1, 2004.
    The Commission is not placing on the public record certain other 
materials from its investigative files, such as subpoenaed records, 
deposition transcripts, and other records produced in discovery, even 
if those evidentiary documents are referenced in, or attached to, 
documents specifically subject to release under this interim practice. 
Release of these underlying evidentiary documents may require a closer 
balancing of the competing interests cited by the D.C. Circuit. 
Accordingly, the Commission will consider the appropriateness of 
disclosing these materials only after a full rulemaking with the 
opportunity for public comment. However, if a document or record is 
referenced in, or attached to, a document specifically subject to 
release under this interim practice, that document or record will be 
disclosed if it is, or was, otherwise publicly available.
    The Commission will place documents on the public record in all 
cases that are closed, regardless of the outcome. By doing so, the 
Commission complies with the requirements of 2 U.S.C. 437g(a)(4)(B)(ii) 
and 5 U.S.C. 552(a)(2)(A). Conciliation Agreements are placed on the 
public record pursuant to 2 U.S.C. 437g(a)(4)(B)(ii).
    The Commission will place these documents on the public record as 
soon as practicable, and will endeavor to do so within thirty days of 
the date on which notifications are sent to complainant and respondent. 
See 11 CFR 111.20(a). In the event a Statement of Reasons is required, 
but has not been issued before the date proposed for the release the 
remainder of the documents in a matter, those documents will be placed 
on the public record and the Statement of Reasons will be added to the 
file when issued.
    With respect to administrative fines cases, the Commission will 
place the entire administrative file on the public record, which 
includes the following:
    1. Reason to Believe recommendation;
    2. Respondent's response;
    3. Reviewing Officer's memoranda to the Commission;
    4. Final Determination recommendation;
    5. Certifications of Commission votes;
    6. Statements of Reasons;
    7. Evidence of payment of fine; and
    8. Referral to Department of the Treasury.
    With respect to alternative dispute resolution (ADR) cases, the 
Commission will place the following categories of documents on the 
public record:
    1. Complaint or internal agency referral;
    2. Response to complaint;
    3. ADR Office's case analysis report to the Commission;
    4. Notification to respondent that case has been assigned to ADR;
    5. Letter or Commitment Form from respondent participating in the 
ADR program;
    6. ADR Office recommendation as to settlement;
    7. Certifications of Commission votes;
    8. Negotiated settlement agreement; and
    9. Evidence of compliance with terms of settlement.
    When disclosing documents in administrative fines and alternative 
dispute resolution cases, the Commission will release publicly 
available records that are referenced in,

[[Page 70428]]

or attached to, documents specifically subject to release under this 
interim practice.
    With this interim policy, the Commission intends to provide 
guidance to outside counsel, the news media, and others seeking to 
understand the Commission's disposition of enforcement, administrative 
fines, and alternative dispute resolution cases and, thus, to enhance 
their ability to assess particular matters in light of past decisions. 
In all matters, the Commission will continue to redact information that 
is exempt from disclosure under the FECA and the FOIA.
    As discussed above, the Commission hereby is announcing an interim 
policy. A rulemaking, with full opportunity for public comment, will be 
initiated in 2004.

    Dated: December 12, 2003.
Ellen L. Weintraub,
Chair, Federal Election Commission.
[FR Doc. 03-31241 Filed 12-17-03; 8:45 am]
BILLING CODE 6715-01-P