81 FR 50702 - Disclosure of Certain Documents in Enforcement and Other Matters

FEDERAL ELECTION COMMISSION

Federal Register Volume 81, Issue 148 (August 2, 2016)

The Commission is adopting a policy with respect to placing certain documents on the public record in enforcement, administrative fines, and alternative dispute resolution cases, as well as administrative matters. The categories of records that will be included in the public record are described below.

[Federal Register Volume 81, Number 148 (Tuesday, August 2, 2016)]
[Notices]
[Pages 50702-50704]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-18190]


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FEDERAL ELECTION COMMISSION

[NOTICE 2016-06]


Disclosure of Certain Documents in Enforcement and Other Matters

AGENCY: Federal Election Commission.

ACTION: Statement of policy.

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SUMMARY: The Commission is adopting a policy with respect to placing 
certain documents on the public record in enforcement, administrative 
fines, and alternative dispute resolution cases, as well as 
administrative matters. The categories of records that will be included 
in the public record are described below.

DATES: Effective on September 1, 2016.

FOR FURTHER INFORMATION CONTACT: Adav Noti, Acting Associate 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, 52 U.S.C. 30101 et seq. (FECA), provides 
that: ``Any notification or investigation under [Section 30109] 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.'' 52 U.S.C. 30109(a)(12)(A). For 
approximately the first 25 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 
30109(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 52 U.S.C. 30109(a)(4)(B)(ii) 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; 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 52 U.S.C. 30109(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,''

[[Page 50703]]

and that: ``deterring future violations and promoting Commission 
accountability may well justify releasing more information than the 
minimum disclosures required by section [30109](a).'' See AFL-CIO v. 
FEC, 333 F.3d 168, 174, 179 (D.C. Cir. 2003). 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. In December 2003, the Commission issued an 
interim disclosure policy. See Statement of Policy Regarding Disclosure 
of Closed Enforcement or Related Files, 68 FR 70423 (Dec. 20, 2003) 
(``Interim Disclosure Policy'').
    The Commission is issuing this policy statement to identify several 
categories of documents integral to its decisionmaking process that 
will be disclosed upon termination of an enforcement matter, as well as 
documents integral to its administrative functions. This policy 
replaces the Interim Disclosure Policy as the Commission's permanent 
disclosure policy.
    The categories of documents that the Commission intends to disclose 
as a matter of regular practice either do not implicate the Court's 
concerns 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. In addition, the 
Commission will make certain other documents available on a case by 
case basis which will assist the public in understanding the record 
without intruding upon the associational interests of the respondents.

Enforcement

    With respect to enforcement matters, the Commission will place the 
following categories of documents on the public record:
    1. Complaint (including supplements and amendments thereto);
    2. Internal agency referral where the Commission opens a Matter 
Under Review;
    3. Response (including supplements and amendments thereto) to 
complaint;
    4. General Counsel's Reports \1\ (including supplements \2\ 
thereto) 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;
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    \1\ This category of documents does not include General 
Counsel's Reports that have been withdrawn by the Office of the 
General Counsel. The Commission may, upon the affirmative vote of 
four or more Commissioners, place such documents on the public 
record on a case by case basis.
    \2\ Supplements are documents that contain new or additional 
substantive analysis from the Office of the General Counsel prepared 
for the Commission in connection with a specific pending Matter 
Under Review circulated through the Office of the Secretary for the 
consideration and deliberation of the Commission. Supplements do not 
include documents that solely transmit replacement pages to correct 
errors in circulated reports or memoranda.
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    5. Notification of reason to believe findings;
    6. Factual and Legal Analyses identified as the subject of a vote 
in a Commission certification;
    7. Respondent's response to reason to believe findings;
    8. Briefs (General Counsel's Brief and Respondent's Brief);
    9. Statements of Reasons issued by one or more Commissioners;
    10. Conciliation Agreements;
    11. Evidence of payment of civil penalty or of disgorgement;
    12. Certifications of Commission votes;
    13. Attachments to complaints and attachments to responses to 
complaints;
    14. Memoranda and reports (including supplements \2\ thereto) from 
the Office of the General Counsel prepared for the Commission in 
connection with a specific pending Matter Under Review circulated 
through the Office of the Secretary for the consideration and 
deliberation of the Commission;
    15. Complaint notification letters, and correspondence from 
respondents submitted in response to them;
    16. Notifications to respondents that were previously identified as 
``Unknown Respondents,'' and correspondence from respondents submitted 
in response to them;
    17. Designations of counsel;
    18. Requests for extensions of time;
    19. Responses to requests for extensions of time;
    20. Tolling agreements; and
    21. Closeout letters.
    The Commission is placing the foregoing categories of documents on 
the public record in all matters it closes on or after September 1, 
2016, regardless of the outcome. By doing so, the Commission complies 
with the requirements of 52 U.S.C. 30109(a)(4)(B)(ii) and 5 U.S.C. 
552(a)(2)(A). Conciliation Agreements are placed on the public record 
pursuant to 52 U.S.C. 30109(a)(4)(B)(ii). On a case by case basis, the 
Commission may place on the public record other documents that edify 
public understanding of a closed matter.
    The Commission will place these documents on the public record as 
soon as practicable, and will endeavor to do so within 30 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 of 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.
    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 policy. The 
Commission also will not place the following categories of documents on 
the public record:
    1. Sua sponte submissions and accompanying attachments;
    2. External referrals from other agencies and law enforcement 
sources in which the Commission declines to open a Matter Under Review;
    3. Documents (other than notification letters) related to debt 
settlement plans and proposed administrative terminations in which the 
Commission does not approve the debt settlement plan or administrative 
termination.

Administrative Fines

    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;

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    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.

Alternative Dispute Resolution

    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 informational memorandum on assignment 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 or dismissal;
    7. Certifications of Commission votes;
    8. Settlement agreement executed by the respondent and Commission; 
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, or attached to, documents 
specifically subject to release under this policy.

Administrative Functions

    The Commission will also place on the public record the following 
non-exclusive list of documents integral to its administrative 
functions:
    1. Statistics related to number of EPS dismissals by fiscal year 
and current quarter;
    2. Statistics related to number of cases opened and closed by 
fiscal year and current quarter, average number of days to close a 
matter, and total civil penalties assessed;
    3. Case closing processing statistics;
    4. Monthly reports from the Department of the Treasury of the 
balance available in the Presidential Election Campaign Fund;
    5. Yearly Long Term Budget Estimates for the Presidential Election 
Campaign Fund;
    6. Memoranda from the Office of the General Counsel prepared for 
the Commission in connection with debt settlement plans and proposed 
administrative terminations circulated through the Office of the 
Secretary for the consideration and deliberation of the Commission in 
which the Commission ultimately approves the debt settlement plan or 
administrative termination;
    7. Certifications of Commission votes in which the Commission 
approves a debt settlement plan or administrative termination;
    8. Service Contract Inventory Reports submitted by the Commission 
to the Office of Federal Procurement Policy pursuant to section 743 of 
Division C of the 2010 Consolidated Appropriations Act;
    9. Annual reports of activities performed by the agency that in the 
judgment of the agency head are not inherently governmental submitted 
by the Commission to the Office of Management and Budget pursuant to 
the Federal Activities Inventory Reform Act of 1998;
    10. Reports of official travel paid for by non-government sources 
made to the U.S. Office of Government Ethics pursuant to 31 U.S.C. 
1353;
    11. Annual reports of the receipt and disposition of gifts and 
decorations tendered by foreign governments to federal employees, 
spouses, and dependents submitted by the Commission to the State 
Department pursuant to Public Law 95-105;
    12. Annual reports made by the Commission pursuant to Equal 
Employment Opportunity Commission Management Directive 715; and
    13. Annual reports on the agency's privacy management program 
submitted by the Commission to the Office of Management and Budget.
    With this 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 administrative functions. This 
will enhance their ability to assess particular matters in light of 
past decisions. This policy does not alter any existing regulation or 
policy requiring or permitting the Commission to redact documents, 
including those covered by this policy, to comply with the FECA, the 
principles set forth by the court of appeals in AFL-CIO, and the FOIA. 
In appropriate cases implicating the law enforcement privilege, an 
entire document may be withheld.

    Dated: July 25, 2016.

    On behalf of the Commission.

Matthew S. Petersen,
Chairman, Federal Election Commission.
[FR Doc. 2016-18190 Filed 8-1-16; 8:45 am]
 BILLING CODE 6715-01-P