[Federal Register Volume 74, Number 238 (Monday, December 14, 2009)]
[Notices]
[Pages 66132-66133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29609]


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FEDERAL ELECTION COMMISSION

 [Notice 2009-28]


Statement of Policy Regarding Placing First General Counsel's 
Reports on the Public Record

AGENCY: Federal Election Commission.

ACTION: Statement of Policy.

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SUMMARY: The Federal Election Commission will resume the practice of 
placing all First General Counsel's Reports on the public record, 
subject to appropriate redaction or withholding.

DATES: December 14, 2009.

FOR FURTHER INFORMATION CONTACT: Lawrence Calvert, Deputy General 
Counsel, or Nicole St. Louis Matthis, Assistant General Counsel, 999 E 
Street, NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: The Federal Election Commission is returning 
to its prior practice of placing First General Counsel's Reports on the 
public record to promote transparency.

I. Background

    For approximately the first 25 years of its existence, the Federal 
Election Commission (``Commission'') placed on the public record, at 
the close of an enforcement matter, all materials considered by the 
Commissioners in their disposition of a case, except for those 
materials prohibited from disclosure by the Federal Election Campaign 
Act (``FECA'' or ``the Act'') or, in most instances, those exempt from 
disclosure under the Freedom of Information Act (``FOIA'').
    In 2001, following the decision of the district court in AFL-CIO v. 
FEC, 177 F. Supp. 2d 48 (D.D.C. 2001) (``AFL-CIO''), the Commission 
placed on the public record only those documents that reflected the 
very final action in an enforcement matter and the reasons for that 
action. Then, after the court of appeals decision in the AFL-CIO case, 
333 F.3d 168 (DC Cir. 2003), the Commission adopted an interim policy, 
in which it said it would place on the public record, among other 
things, ``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[.]'' See Statement of Policy 
Regarding Disclosure of Closed Enforcement or Related Files, 68 FR 
70423 (Dec. 20, 2003) (``Interim Disclosure Policy'').
    In 2006, the Commission reconsidered its practice of placing First 
General Counsel's Reports on the public record after a case arose in 
which the Commission adopted a recommendation offered by the Office of 
General Counsel (``OGC'') in a General Counsel's Report, but rejected 
one of several underlying rationales for the recommendation. 
Thereafter, OGC began recommending the approval of a Factual & Legal 
Analysis (``F&LA'') in all cases, not just those with reason to believe 
recommendations. From January 2007 forward, F&LAs providing an 
explanation for the Commission's decisions were placed on the public 
record in new enforcement matters, but First General Counsel's Reports 
were not.

II. Return to Prior Practice

    In the interest of promoting transparency, the Commission is 
resuming the practice of placing all First General Counsel's Reports on 
the public record, whether or not the recommendations in these First 
General Counsel's Reports are adopted by the Commission.
    The Commission will place all First General Counsel's Reports on 
the public record in closed enforcement matters, prospectively and 
retroactively, while

[[Page 66133]]

reserving the right to redact portions of such documents consistent 
with the Act, the principles articulated by the court of appeals in 
AFL-CIO, and subject to the Commission's authority to withhold material 
under an exemption set forth in the FOIA.
    Until such time as all previously undisclosed First General 
Counsel's Reports have been placed on the public record, the Commission 
intends to approve any FOIA request seeking a First General Counsel's 
Report or accompanying F&LA that has not yet been placed on the public 
record, but reserves the right to redact portions of such documents 
consistent with the Act, the principles articulated by the court of 
appeals in AFL-CIO, and subject to the Commission's authority to 
withhold material under an exemption set forth in the FOIA.
    This document amends an agency practice or procedure. This document 
does not constitute an agency regulation requiring notice of proposed 
rulemaking, opportunities for public comment, prior publication, and 
delay effective under 5 U.S.C. 553 of the Administrative Procedure Act 
(``APA''). The provisions of the Regulatory Flexibility Act, 5 U.S.C. 
605(b), which apply when notice and comment are required by the APA or 
another statute, are not applicable.

    On behalf of the Commission.

     Dated: December 4, 2009.
Steven T. Walther,
Chairman, Federal Election Commission.
[FR Doc. E9-29609 Filed 12-11-09; 8:45 am]
BILLING CODE 6715-01-P