This file contains archived live captions of the open meeting of the Federal Election Commission held on December 07, 2017. This file is not a transcript of the meeting, and it has not been reviewed for accuracy or approved by the Federal Election Commission. >> It will take just a minute. One of our commissioners is just getting ready to go. (Standing by). >> CHAIRMAN STEVEN WALTHER: Good morning, this will convene the open meeting of the Federal Election Commission for the Thursday, December 7th, 2017. We'll look at the agenda. At the beginning I would like to welcome our visitors from Moldova it's a nice honor to have you come and visit with us and watch our process. Hopefully you can teach us so we can have mutual education program going on here and we'll learn from each other. I have the privilege of being able to visit and observe your last election, I had the privilege, I understand you have one coming up so I hope all is going well and we'll talk to you today and tomorrow. Of the three people there's Anastasia, forgive me if my pronunciation is not so well but Anthochania. Something like that. Lori Kurtu. And Yasaslav Yogosanco, something like that. Thank you. First item is resubmission audit division recommendation memorandum on the New York Republican Federal campaign committee AYR 13-11. Ready to proceed. >> Good morning, Commissioners. >> Good morning. >> Before you have the audit division recommendation memorandum on the New York campaign committee the findings consistent of No. 1 misstatement of financial activity. No. 2, record keeping for employees. No. 3, occupation and name of employer. No. 4, reporting dependent expenditures. And No. 5, record keeping for communications. It was approved by the Commission on August 10th, 2017. We are available to answer any questions. Thank you. >> CHAIRMAN STEVEN WALTHER: Thank you. Any discussion? Commissioner Goodman. >> COMMISSIONER LEE GOODMAN: I was a little confused. This issue comes up quite often, as you know. People run -- state parties run volunteer mail programs. They don't always keep all of the records. But we have credited affidavits in the past that make blanket representations under oath. I'm not sure who I direct this question to. Yes, ma'am. Why aren't we crediting the affidavit of the state parties counsel that said that all of their mail in this election cycle was conducted pursuant to the volunteer mail exemption? Why don't we credit the representation that they only ran one type of mail program? >> Commissioner Goodman I'm Nicole Burgess. We did not give Mr. Prvits affidavit we didn't recognize it in the report. However when the Committee submitted their affidavits, they submitted them all in packets from the vendors and they attached associated mail pieces along with the invoices. I brought them along. So they came in a packet as such. And the invoices as well as the individual mail associated mail pieces were all attached. And the affidavit stated that they were attesting to the attached invoices and mail pieces. So as an example, this is an invoice from affidavit invoice packet from at list direct mail. And in this packet, we have all of the associated invoices and mail pieces that the vendor is attesting to. However, the 236 that was mentioned in the ADRM, of that amount, 91,000 included pieces and invoices that were related to at list direct mail. And were not included in this packet. And thus, that is why we make the distinction in the audit report on the given credit for the pieces that were submitted as attached to an individual vendor or campaign official. >> COMMISSIONER LEE GOODMAN: Did I overread then the general counsel's affidavit the state parties general counsel's affidavit in his statement that all of the mailings that the party engaged in were conducted pursuant to the volunteer mail exemption. >> That is what he stated. >> COMMISSIONER LEE GOODMAN: Yes. >> However, we just made the distinction only because the committee did take the time to actually separate out the different vendor items. And the affidavits do clearly state that these invoices and mail pieces were supplied by the New York Republicans for their review. And they were per their recollection conducted under the volunteer materials exemption. >> Can I continue Mr. Chairman. >> COMMISSIONER LEE GOODMAN: She's still talking. >> I can -- >> COMMISSIONER LEE GOODMAN: I guess -- is there just a gap in their identification -- I guess I'm not completely following the gap between what that affidavit covers and the more all-inclusive representation by the counsel for Mr. David Previts where he says all of the expressed advocacy mailings reported as Federal election activity on Line 30B of the committee's FEC disclosure reports during the 2012 election cycle were part of the committee's volunteer mail program. And I followed the same procedures described in my February 2015 affidavit to ensure there was substantial volunteer participation in all of the mailings production and distribution. Are you telling me that there is a gap -- there is a group of direct mail expenditures that is not covered by this at the same time in Paragraph 8 of the affidavit? In other words, were there other mailings that were not reported as Federal election activity on Line 30B. >> No there were not. >> COMMISSIONER LEE GOODMAN: So the gap is in the evidentiary submission. >> Yes. >> COMMISSIONER LEE GOODMAN: Okay. Now, how do we make the submission by the vendor speak to this representation? In other words, were all of the mailings done by this one vendor? >> No, they were not. We received 4 vendor -- some of them were repeats. Sorry; I'm trying to recall off the top of my head. Some were repeat affidavits, meaning that the committee -- New York Republicans went back to the vendor and supplied more invoices and mailers and then the vendor submitted an additional affidavit. So we have received about -- somewhere between 6 and 10 affidavits from vendors and campaign officials. And the only reason that there is a distinction made is because the at list, for example, the 95,000 was not included in the packet that we received from the actual vendor. And it still remained outstanding. And we just didn't make the leap. Because there were no affidavits attached to Mr. Previts -- I'm sorry there were no invoices attached to his affidavit. >> COMMISSIONER LEE GOODMAN: I have not read the vendor affidavits that you're referring to that attach mail pieces. Do they represent that these were mailings that were that were made using processed volunteers. >> Yes, they do. >> COMMISSIONER LEE GOODMAN: And so you credited those affidavits from the vendors. >> Yes we did. >> COMMISSIONER LEE GOODMAN: Were the vendors responsible for operating the direct mail program for the party. >> Yes, they were. They were not responsible but they were -- >> COMMISSIONER LEE GOODMAN: Insistent and they printed provided postage while volunteers processed it. >> Yes, sir. >> COMMISSIONER LEE GOODMAN: Years later after election cycle what was the total universe of direct mail. >> The total universe of direct mail was 1.1 million. >> VICE CHAIR CAROLINE HUNTER: You say whaunaccounted out of 1.1 million is a little less than $100,000. >> Yes, sir. >> COMMISSIONER LEE GOODMAN: What you haven't found was the specific mailers that correlate to that $100,000? No one has submitted you an affidavit covering invoices for the last $100,000 for 1.1 million. >> Yes they were not attached to the affidavit we do have the mailers and the invoices but they were not attached to the affidavit. >> COMMISSIONER LEE GOODMAN: And it's the absence of the mailers and invoices for that last $100,000. And therefore, no specific vendor affidavit. On which the audit staff has concluded or decided to recommend a finding that those were independent expenditures? >> Yes, sir. And again, because some of that activity, that 91,000, does relate to at list mail, which we did receive a packet for. And they were -- 85,000 of that 91 is a small amount that was not -- but 85,000 of that 91 was in support of 2 candidates. And they are the 2 candidates that we received affidavit from at list direct mail to support their volunteer component. >> COMMISSIONER LEE GOODMAN: Mr. Chairman -- I'm sorry; I'm yield to Commissioner Weintraub. >> COMMISSIONER ELLEN WEINTRAUB: Thank you Mr. Chairman I apologize I don't seem to have the affidavits in front of me but my recollection is there were three different kinds of affidavits. There was the affidavit from the lawyer saying I did my job as a lawyer, I understand the volunteer exception and I explained it to them and told them that they had to have volunteers and that's -- I agree with what I think your determination is that's great that they have a good lawyer who explained the law to them. But he wasn't physically there when the mailers were being produced and he can't really testify from personal knowledge as to whether there were any volunteers present at each and every one of the productions of these mailers. Right? >> Correct. >> COMMISSIONER ELLEN WEINTRAUB: Then there are a number of vendor affidavits that said, you know, we actually produced the mailers. And there were volunteers present at the production of these specific mailers and they attached them. And there was one I think that was -- said he had a subcontractor, if I'm recalling correctly. So there was the lawsh and then -- the lawyer and then general contractor and subcontractor who actually prepared the mailing and on that one we only have an affidavit from the general contractor not from the subcontractor. So again, I think we have -- and you and I may differ on what conclusion to draw from this, but I think we have from my perspective an evidentiary problem there, again, because the person who submitted the affidavit was a step removed from the actual production and from being in the room with the volunteers, am I right about that? >> I would have to get back to you on that last group. I know that we had the vendor -- the campaign officials. I know there was one from a campaign manager. And Mr. Previtz the counsel would have to look into the one that you're speaking of now. >> COMMISSIONER ELLEN WEINTRAUB: Because my own conclusion would be that I'm willing to accept the affidavits from the guys who were in the room where it happened so to speak were who were really close to the production of it and said they had volunteers there. But it's harder for me to accept as an evidentiary matter an affidavit from someone who wasn't there. Because the best they can do is say, we understood the law. We explained it to the people who were actually doing -- who were actually producing the mailers. But they can't because they weren't there to testify from personal knowledge as to whether there were volunteers there or not. >> CHAIRMAN STEVEN WALTHER: Commissioner Goodman. >> COMMISSIONER LEE GOODMAN: I understand the point. I read the affidavit from the lawyer a little differently. And it could be there's some interpretation of the affidavit. But I'm reading from the affidavit. And he not only says he was responsible for the legal compliance but he goes on to say, my affidavit dated February 6, 2015 previously submitted to the Commission describes specific examples of how I coordinated volunteer participation, staffing activities. And ensured that volunteers participated directly in the sorting, bundling, bagging and tagging of mail pieces by local ZIP codes and in the loading of mail bags onto trucks for delivery to U.S. post offices. I was -- it was also standard practice to have extra copies of the mail pieces printed for hand distribution by volunteers. And he claims, I followed the same procedures described in my February 2015 affidavit to ensure there was substantial volunteer participation in all of the mailings production. Now, in the past, we've -- we have seen not nearly the detailed affidavits we have here from the actual vendors. And I don't know about you but I know some votes on the Commission. >> COMMISSIONER ELLEN WEINTRAUB: Yes but not mine. >> COMMISSIONER LEE GOODMAN: Maybe not yours but where what the party comes in with three or four years hence, after election cycle, is they come in with the sign-in sheets for maybe 5 of 15 volunteer mail sessions and pictures of 4 others. And it's a patchwork quilt of documentation that they have. But they show that they did try to comply with the volunteer mail exemption. And then they follow up with an affidavit in the absence of any evidence about the other 10 events. The other 10 nights where volunteers came down to party headquarters and put the stamps on and sorted the mail. They have an affidavit that says the only kind of mail program that the party operated in this election cycle was volunteer mail. We didn't do other kinds of mail. And all of our mail programs, that is the other 10 for which we have no evidence, all of them operated in the same way that the 5 we have documentation for operated. And that's the way I read this affidavit is, here we've got more evidence than we've even seen in some of those cases as to about $1 million worth of mail from the vendors. The only gap in evidence is $100,000 worth of the mail. But then we have the I'll call it sort of the omnibus or the cleanup affidavit that says, I coordinated operations in all of our direct mail conformed to this practice. Now, you know, it's almost as if to say I'm sorry, there's 10% of it for which I can't recreate every direct mail piece and every volunteer night and pizza night at the party headquarters. But I'm telling you, all of our mail program was run in conformance with the evidence that we've submitted here. And I think it's a reasonable inference that if you can show that for $1 million of 1.1 that the last 100,000 probably fell within the -- it would be very odd to run a million dollars of mail through a volunteer program and then have this one little piece out there that was not done in a volunteer way. Especially given an affidavit that says all that was done that way. >> CHAIRMAN STEVEN WALTHER: Commissioner Weintraub. >> COMMISSIONER ELLEN WEINTRAUB: I'm not sure I agree with you that it would be very odd because the nature of the volunteer activity -- excuse me. Sorry; something -- something caught in my throat. The nature of volunteer activity is it depends on the volunteers showing up. And it strikes me not at all inconceivable that you know you put your calls out and you make your best efforts to get your volunteers to show up and one day you get 5 volunteers and another day you get 4 volunteers and one day you get no volunteers. Now do they shut down their operation if the no volunteers show up? Or do they say, oh, okay, we were all set up to print these things out and get them out so we're going to do that because we have an election coming up and we want to get the mail out. Which is -- I am not -- I could be wrong about this. But I am not aware of me personally having voted for accepting, okay, you know, we have affidavits so -- we have documentation for 40% and, therefore, you should assume that we had the same kind of system in place for all of them. I have in front of me, by the way, right now the affidavit that I was remembering which comes from Dan Hazelwood who said he is the president of targeted creative communications and he subcontracted the printing and addressing of these materials to Phoenix graphics of Rochester, New York. And then goes onto describe how he instructed Phoenix graphics what they were supposed to do. But again, he's the general, there was a subcontractor. He can't -- you know, I'm not saying that what he's saying here isn't true. I'm sure it is. It's just that he did not by definition have personal knowledge of whether the volunteers showed up. >> CHAIRMAN STEVEN WALTHER: Just real quick. In looking at the one affidavit, by Dan Hazelwood I apologize for not being more current it says they were instructed to have volunteers sort the materials as it was by the printing addressing facility by bagging and tagging the pieces and then placing them on a delivery truck the mail would not be accepted by the sups if it were not -- USPS if it were not for the key volunteer components. It sounds to me like this was the instructions that were given but there's nobody there to verify that it happened and was them. Is that your view that enough has been done to assume that's been done? >> COMMISSIONER LEE GOODMAN: Yes and I'm looking at the affidavit of David Previtz who apparently submitted two affidavits and says he was responsible and did coordinate the volunteer staffing activities and he makes representation that I have accepted in a prior audit that all of this committee's mail program was done as a volunteer mail program. We have a different gap of evidence in this case than we have in others. In others, the gap of others was the sign-in sheets and and photos of the volunteer night and the pizza boxes that pile up. And we have allowed the affidavit to fill that void, at least some Commissioners have. Here the party has gone far beyond that and they have tried to actually attach each and every mail piece that was printed by a vendor and have the vendor explain here are all of the mail pieces I printed and I worked with the party's volunteers to effectively mail those and the gap now is because we have created all of this additional affidavit evidence the gap is that some vendor or vendors didn't account for about $90,000 of the mailings. But we still have the gap filler of the catchall affidavit that all of our mail program was done in this way. We only ran a volunteer mail program. And I understand in some cases maybe somebody didn't show up but it gets to be am I going to credit the party's representation that that's the only kind of mail program that they ran and that all of their mail was done by the volunteer mail procedure. So I've credited it in the past with far less gap filling affidavits than we have here. Here they went the extra mile and actually got the vendors to provide the evidence as to a million dollars worth of 1.1 million. And it has been it is certainly possible on one night that nobody came and stuffed the envelopes and the mail house went ahead and mailed them out itself. But I think it's just as plausible that that's the they only ran these as volunteer programs because that was the program in place of the party. And the fact that the gap is now down to $100,000 out of 1.1 million makes that even more plausible to me in my mind. >> COMMISSIONER LEE GOODMAN: Commissioner Weintraub. >> COMMISSIONER ELLEN WEINTRAUB: Thank you, Mr. Chairman. I'm sure none of this is making any sense at all to our mole dove van visitors -- Moldova visitors but just to give a little bit of background because it does affect how I view these the reason we care about these at all is because there's an exemption to what would otherwise be a contribution limit from the party to these candidates. There's an exemption if they prepare these materials that it won't count against their -- >> COMMISSIONER LEE GOODMAN: No these would be independent the findings independent -- under Colorado they said they can be independent expenditures. >> COMMISSIONER ELLEN WEINTRAUB: They said they weren't. They should know. >> COMMISSIONER LEE GOODMAN: You're right. >> COMMISSIONER ELLEN WEINTRAUB: If they told us they weren't independent then they should know whether they were working with the candidates or not. I'm certainly willing to credit that. That would be a different argument if they said they were done independently that's not what they are arguing they said they weren't done independent of the candidate but shouldn't be counted against the limit on how much they can spend on behalf of their candidates because these communications were prepared with the substantial assistance of volunteers and there's a specific exemption of that to encourage volunteer activity. A -- there's two problems with that one is that that exemption specifically says it's not supposed to cover direct mail and the Commission has bent over backwards to say that direct mail isn't really direct mail even though direct mail is otherwise defined as a mail that's done at a commercial mailing house. The Commission has said, well, even if it's done at a commercial mailing house if you have some volunteers in there doing something along the way that will still be good enough we'll just pretend that it's not at a commercial mailing house and I have a bit of a problem with that from the get-go. But what I think is happening in a lot of instances is because it no longer -- nobody stuffs envelopes anymore out there in the real world everybody uses commercial mailers and they come up with things for the volunteers to do. In order to take advantage of this exemption but the bulk of the work is being handled by the professionals, by the commercial mail house. I think in many instances they kind of bring in the volunteers to -- we have had discussions about this where Commissioner Peterson has talked about the blessing of the mail of the volunteers you have a few volunteers in the room take their picture and feed them some pizza they move the bags from one side of the room to the other or load them on the truck and we say okay now it's a volunteer activity it's all gotten I think very far away from the original notion of what the volunteer participation would be and how important it would be to the production of the mail. So since I'm somewhat skeptical that this exemption even applies anymore that makes me even more convinced that I need to see some solid evidence that the volunteers really were in the room and were playing some role in this. I don't doubt for a second that this lawyer tried to ensure and took whatever steps he could to ensure it was all running according to his understanding of the law. I'm not suggesting that he wasn't doing his job. But he also wasn't in the room. >> CHAIRMAN STEVEN WALTHER: Any further comments? I find it again just -- this is a close one for me because I also have some of the skepticism of Commissioner Weintraub but I also see an attempt to good -- in good faith to try to recognize their responsibility and do it for the most part so I wasn't really sure. But I also share the concern of Commissioner Weintraub that an overreaching affidavit that scoops up things that clearly there's no personal knowledge about are risky to accept. Without saying, well, we did it once and we're going to do it again. So I'm finding this a tough one. It appears that 90%, close to 90% got over the hurdle. But this 10% did not. So I'm still thinking it over. Commissioner Peterson. >> COMMISSIONER MATTHEW PETERSON: Thank you -- >> CHAIRMAN STEVEN WALTHER: It's nice to be able to call you Commissioner Peterson while we can. >> COMMISSIONER MATTHEW PETERSON: Thank you I just want to shift gears slightly -- >> CHAIRMAN STEVEN WALTHER: To what. >> COMMISSIONER MATTHEW PETERSON: Finding 1 the misrepresentation of financial activity finding. And it appears that the bulk of the issue here is the -- and correct me if I'm wrong but the way I understood it is that the committee represents that it received both Federal and non-Federal contributions into its Federal account and then from that point would use it as a merchant account. Then would send contributions because of their amount or because of the source or some other indicia would be transferred to the non-Federal account. >> That's correct. >> COMMISSIONER MATTHEW PETERSEN: In 2011 that amount constituted 190,000 so we had 190,000 that came into the Federal account that was determined to be actually for the non-Federal account and then subsequential transferred and then twelve we had a similar arrangement -- 2012 we had a similar arrangement the issue was $157,437 is the way I understood it. So the committee argued that in 2001 advisory opinion I believe it's the DNC Services opinion, to argue by analogy that in essence this was -- these deposits were out of administrative convenience and that none of these funds were -- none of these non-Federal funds were actually used for Federal purposes. Is there any evidence to indicate that non-Federal funds were actually used for Federal purposes or is that representation borne out by what you found. >> No there was no Federal funds -- non-Federal funds used for Federal purposes. >> COMMISSIONER MATTHEW PETERSEN: It sounds like it happened the way they represented where all of it would come to the Federal account and then they would dispense to non-Federal as appropriate. >> That's true. >> COMMISSIONER MATTHEW PETERSEN: But it was the audit division's conclusion and I guess supported OGC that the 2001 AO 2017 to be precise was not applicable in this case and I don't know if -- who I -- do I turn to Mr. Bloom to speak to that issue? And they recognize that it wasn't -- that it wasn't on all -- that they are arguing by analogy. But it was the office's determination that this isn't applicable in this instance and I just wanted to give you an opportunity to kind of flesh out that conclusion that OGC arrived at in this particular matter. >> Yes, thank you, Commissioner Petersen. We had concluded in our comments that advisory opinion 2010-17 that -- 2001-17 that had pertained to a national committee at the time that had made an inquiry about how it should handle contributions that were intended to be split between the Federal and non-Federal accounts. And the Commission authorized a process by which the national committee could take so-called -- we referred to it in our comments as composite contributions. And deposit the entire amount even though part of it was intended to be non-Federal into the Federal account. Subsequently transfer the non-Federal portion to a non-Federal account so long as the transactions were properly disclosed in the reports. So there were two aspects to our analysis in this case. There was the substantive aspect of the analysis, which concerned whether 11 CFR 102.5 which normally prohibits the introduction of non-Federal funds into Federal accounts, whether that applies here. And then the second aspect would be the procedural aspect in terms of the reporting, whether the transactions were properly disclosed. My understanding in terms of the reporting aspect from the audit division was that none of these actual transfers of the deposits of the non-Federal credit card contributions and the transfer to the non-Federal account were actually reported in any way or disclosed in the Federal reports. And it's my understanding that the -- the committee's argument was that it wasn't required to do that. So in that sense, we didn't think that advisory opinion 2001-17 would cover the committee's non-reporting of the deposit and subsequent transfer. In terms of the substantive issue, the opinion itself was confined to the composite contribution situation, as I understood it. As we understood it. And it wasn't clear -- and I don't know if the audit division -- I don't believe the audit division actually has information about this. Whether the contributions in question in this case, the credit card contributions were actually composite contributions or whether they were intended wholly to be non-Federal contributions. That we considered significant because actually the -- the parameters of the 2001-17 opinion included a representation by the national committee in that opinion that any wholly non-Federal contributions that it received, it would deposit directly into it's non-Federal account rather than use the Federal account as a conduit for the transfer. So it seemed to be factually significant to us to identify what portion of the contributions in this case were composite contributions and which portion were wholly non-Federal contributions composite contributions for the substantive question of the violation of Section 102.5 that would be permissible under the parameters of advisory opinion 2001-17. But wholly non-Federal contributions our view was and remains that they ought to have been deposited directly into the non-Federal account. >> COMMISSIONER MATTHEW PETERSEN: I appreciate that explanation. >> CHAIRMAN STEVEN WALTHER: Excuse me Mr. Bloom, the deposit -- >> COMMISSIONER LEE GOODMAN: Is the finding here a reporting that they didn't report these dollars are is there also a finding or alternatively either in addition to a finding of depositing state funds into a proper account while the regulations require there to be two different accounts. In other words, what's the finding that they just simply -- they simply didn't report these receipts into the Federal account? >> Well, as I understand the way that the audit report currently reads, the finding is one of reporting. >> COMMISSIONER LEE GOODMAN: So reporting. >> Yes. But it was our office actually that raised the potential substantive issue as also a potential issue. And we had suggested that that might be a part of the finding. >> COMMISSIONER LEE GOODMAN: It is or is not part of the finding, a more substantive violation of the deposit of the funds versus a reporting violation? Just reportin >> Yes. >> COMMISSIONER LEE GOODMAN: Hmmm . . . And as to the reporting, the party has invoked the older opinion that merely using the Federal account as the -- taking a check with some of the funds intended for the state account and moving them out, the money was never intended to be accounted for by the Federal committee, although the account was used to receive and then disburse the funds? >> Yes. >> COMMISSIONER LEE GOODMAN: So it's the use of a bank account. But they -- their position is because they didn't -- I guess I'm asking. Their position is because they never intended to realize the state portion of that contribution, they didn't report it as a Federal contribution because they moved the money promptly to the state account? >> Yes. I believe that is a synopsis of their position. They essentially said that they reported all of these non-Federal contributions in their state reports. And that that sufficed. >> COMMISSIONER LEE GOODMAN: So it was an accounting -- it's as much an accounting issue. So then it seems to me that the broader issue is hold aside the reporting of whether they should have realized these receipts and reported them on their Federal reports, it strikes me that it could be viewed more as a misuse of the Federal account rather than a reporting issue. >> Yes. I suppose it could be seen that way. That's not how I had originally conceptualized it. I had also in terms of the reporting question, there was language in -- in the advisory opinion, the older advisory opinion, 2001-17, which -- in which the Commission strongly emphasizes that if the national committee is going to use the Federal account this way to deposit -- make contributions and transfer the non-Federal portion, it has to be very clearly noted in Federal reports. >> COMMISSIONER LEE GOODMAN: As memo entries or how. >> It could be noted as memo entries we had advice from RAD that it wouldn't necessarily have to be noted as a Federal receipt per se. That's the none -- >> COMMISSIONER LEE GOODMAN: Ah. >> Yes the reports analysis division had provided us with information indicating that it could be noted as memo entries -- >> COMMISSIONER LEE GOODMAN: In other words not realized in the cash on hand balances. >> Exactly. >> COMMISSIONER LEE GOODMAN: But merely the money in-money out, if they had just made a memo entry. >> Yes. >> COMMISSIONER LEE GOODMAN: And is that written somewhere? Is there a policy written about the memo entry? Or is that -- was that sort of RAD's advice internally in the building to the Office of General Counsel in connection with this audit? >> That was RAD's advice to us. There was also a prior matter that I had looked at an audit of the Missouri state Democratic committee where it looked like memo entries would have been acceptable in that case. So I checked with -- I'm sorry; I checked with RAD to see what reporting method would be acceptable. And RAD indicated to me at the time that either way would be acceptable. >> COMMISSIONER LEE GOODMAN: A question for the audit division, when we audited this committee, did we ever advise them that if they filed either a form 99 amendment or amended their reports to reflect this is a memo entry that that would be a proper cure or a proper remedy to the reporting problem? >> No, we did not. >> COMMISSIONER LEE GOODMAN: Okay. >> CHAIRMAN STEVEN WALTHER: So my concern is -- a little aside from what's happened is if -- to just treat it if there's -- as if there's no cash on hand I get that but it seems to me we might have a situation where we have a million dollars flowing through of non-Federal money and $100,000 of Federal money and somewhere there should be some disclosure of the time when that non-Federal money was held in the Federal account as kind of a custodian, which is a concerning situation to have that much money -- this is by analogy. My hypo. But still it seems to be there should be some policy that recognizes that and points it out to somebody who might be looking at a report. Just wonder if we should have -- it seems to me there must have been a lot of times when this has happened in the past and just has been dealt with ad hoc. Any further questions on where to go with this? Commissioner Petersen. >> COMMISSIONER MATTHEW PETERSEN: Thank you Mr. Chairman. And from what I understand from the report, this issue has been resolved going forward I believe, did they make -- the New York Republican Party has made representations that this is no longer the method by which they take in contributions so they figured out ways to code the credit card contributions in order to have them disbursed immediately to the proper accounts and that this is no longer the method by which they receive credit card contributions; is that correct. >> That's correct. >> COMMISSIONER MATTHEW PETERSEN: So it sounds like the issue has been resolved to a large extent. This is activity that took place back in 2011-2012 so obviously it's quite a ways in our rearview mirror. I think -- and Mr. Bloom, thank you for the explanation and kind of the extent of the reasoning you had to reach the conclusion I don't necessarily agree with it I think you're probably right on it. I think, though, that I'm going to probably vote to put the amounts -- pertaining to the credit card contributions, to have that put into additional issues. I'm not sure that I feel completely comfortable saying that the advisory opinion or some analogous argument that could be derived from that opinion is necessarily incorrect. I think ma matter like this, again, that is somewhat older, I'm not sure that I want to necessarily bite down on that in this particular case. So I think that -- but also, because of the length of time that has transpired, I also don't want to drag this out needlessly, as well. I think the representations from counsel, I think some finality is requested with respect to this audit. So when it comes time to make motions on that, I'm going to support moving at least the analysis that pertains to the credit card contributions to the additional issues section. >> CHAIRMAN STEVEN WALTHER: Okay. Thank you. Anything further? Commissioner Goodman. >> COMMISSIONER LEE GOODMAN: I see our Moldovan visitors have departed. (Chuckles). >> COMMISSIONER LEE GOODMAN: But for the good of the order, I didn't want to leave something out there hanging. I do believe the consequence, if you do not accept the affidavits here, is in i.e. not a coordinated expenditure I believe the representation of coordinated expenditures was the Hawaii Democratic Party audit that comes after this I'm looking at the finding. The finding is failure to file independent expenditure reports. I don't think there was a representation here that the mail pieces were coordinated. Am I right about that? This is an independent expenditure reporting issue. >> Yes it is. >> COMMISSIONER LEE GOODMAN: It's the Hawaii Democratic Party audit where it comes later that the counsel made the representation that the mail pieces were coordinated? Yes. So this is not -- this is not a party coordinated expenditure limit case. The consequence, if we don't accept the affidavit is that they didn't file IE reports timely for 24, 48 hour IE reports. >> CHAIRMAN STEVEN WALTHER: Commissioner Petersen -- excuse me Commissioner Weintraub. No offense. >> COMMISSIONER ELLEN WEINTRAUB: But isn't the -- somebody help me out with this. Isn't the whole point of using volunteers, that whole point of the volunteer material exemption is an exemption to the coordinated spending, isn't it? >> It may have that beneficial -- >> COMMISSIONER LEE GOODMAN: It may have that beneficial effect but it also voids treating them as independent expenditures and the 24, 48 hour reporting of independent expenditures? Am I wrong it? It may have a couple of effects. >> Well, the volunteer mails exemption is an exemption generally to the definition of expenditure. >> COMMISSIONER ELLEN WEINTRAUB: Oh. >> COMMISSIONER LEE GOODMAN: Right. >> COMMISSIONER ELLEN WEINTRAUB: Okay. >> COMMISSIONER LEE GOODMAN: And there was no evidence I take it in our audit that there was coordination. >> No, there was not. >> COMMISSIONER LEE GOODMAN: So the finding here would be that they made independent expenditures that they didn't timely report in 24, 48 hour reports. >> COMMISSIONER MATTHEW PETERSEN: Thank you. I just had one final clarification and this pertains to Finding 3. So this was the occupation name of employer. I just want to make sure that I understand. There were a lot of different slicing of that 205 number. And I just want to make sure that I fully understand it. So there were 205 itemized individuals contributing a total of 563,000 and change. And it was the audit division's conclusion that 95 of those did not -- that there weren't best efforts demonstrated. But the committee had demonstrated -- or at least had the documentation to demonstrate best efforts with respect to 110? >> Yes. >> COMMISSIONER MATTHEW PETERSEN: Okay. >> On the 110 and contributions they had the information but they didn't file amendment. >> Yes. >> COMMISSIONER MATTHEW PETERSEN: So of that subset of 110, they had the documentation but filed amendments with respect to what, 91 of them is that correct? >> Yes, that's correct. >> COMMISSIONER MATTHEW PETERSEN: Okay. So there were I guess another 19 that they had the documentation for but amendments weren't filed. >> The maents weren't filed as of the time of the audit. So that's why those amounts were in the original violation amount. Post the audit, they filed amendments for 91 of them, is that correct? >> Correct, they filed amendments for 91. >> COMMISSIONER MATTHEW PETERSEN: For 91? >> Yes. >> COMMISSIONER MATTHEW PETERSEN: Is that current as of right now? Do we know if any further amendments with respect to the other 19 have been filed? As far as we know 91 is just the number. >> As far as we know. >> COMMISSIONER MATTHEW PETERSEN: Okay. When I first read the summary of the finding in the last sentence it said in response to the report recommendation NYR included memo entries in its most recently filed disclosure report providing the missing contributor information, I'm assuming does that mean with respect to the 91? >> Yes, sir. >> COMMISSIONER MATTHEW PETERSEN: Okay. If that's indeed the case we may just want to make the clarification in the report just to ensure that someone who only skips to the highlights and doesn't get into the meat of these reports will fully understand what the nature of the finding is. But that's the only question I had with respect to that. >> CHAIRMAN STEVEN WALTHER: Any questions? further discussion? Any motions? Commissioner Petersen. >> COMMISSIONER MATTHEW PETERSEN: I'll make a suggestion as to how we may want to proceed that hopefully can bring this to a close. I think that as far as I know there's probably agreement on Findings 2, 3 and 5. I don't have any disagreements with the auditers findings on that other than maybe that we want to make a note on the summary of Finding 3 just to make it crystal clear on what the nature of the finding was. We can make that motion first and then we can maybe make separate motions wrpts to Findings 1 and 4. And then I think -- with respect to -- I think at some point we can find some satisfaction on all sides and put this one to bed. But I would be happy with respect to Findings 2, 3 and 5 in the -- that we approve the audit division recommendation memorandum on the New York Republican Federal campaign committee which is audit 13-11 that we approve those findings. >> COMMISSIONER LEE GOODMAN: For the audit staff, in the record keeping for employees, the proposed finding of failure to maintain monthly payroll logs totallying $713,427, was any portion of that funded by the State Party wholly from state funds? Were any employees in that paid wholly from state funds? >> No. >> COMMISSIONER LEE GOODMAN: Okay. Thank you. >> CHAIRMAN STEVEN WALTHER: All in favor of that motion (Motion of ayes). >> CHAIRMAN STEVEN WALTHER: Opposed. The ayes have it unanimously. Commissioner Weintraub. >> COMMISSIONER ELLEN WEINTRAUB: I'll take them one at a time. The second will be a little bit tricky. With respect to the audit division recommendation memorandum on the New York Republican Federal campaign committee A13-11 as set forth in Agenda Document No. 17-55A I move approval of Finding 1. >> CHAIRMAN STEVEN WALTHER: Any discussion all in favor (Chorus of ayes). >> CHAIRMAN STEVEN WALTHER: Opposed? >> Nay). >> CHAIRMAN STEVEN WALTHER: Commissioner Weintraub and I voted in favor and voting against was the Vice Chair Commissioner Goodman and Commissioner Petersen. >> COMMISSIONER MATTHEW PETERSEN: I make a motion with respect to Finding 1 I move we approve the finding of the audit division except that with respect to the amounts that relate to the credit card contributions received by the committee, which were I think it was $190,211. And $157,447. That that portion of the finding be kicked to additional issues. >> CHAIRMAN STEVEN WALTHER: About the 91,000. >> COMMISSIONER MATTHEW PETERSEN: About the $190,211 and the 157 those portions of the fund I recommend those be put in the additional issues section. >> CHAIRMAN STEVEN WALTHER: Any discussion? All in favor (Chorus of ayes). >> CHAIRMAN STEVEN WALTHER: I am in favor. Commissioner Weintraub additional motions unanimously. >> COMMISSIONER ELLEN WEINTRAUB: With respect to No. 4 independent expenditures, can you tell me the number that you have? It's a little bit hard to find in here. >> The number that we have is $1.-- 1 million $51,064 for -- we have 1,51,064 in apparent independent expenditures due to lack of clear standard we ask that the Commission find NYR failed to report mailers containing expressed advocacy totallying $91,439. >> COMMISSIONER ELLEN WEINTRAUB: Thank you. With respect to Finding 4 I move approval of the recommendation with the numbers stated by Ms. Burgess except that I would like to add in shall and I'll -- at some point somebody can do the math I suppose but it's almost an academic question I would add to the 91 the amount that would have been covered by the Hazelwood affidavit. Do you understand what I'm saying? >> You would like to add to the 91,000 the amount that was covered by the targeted creative -- >> COMMISSIONER ELLEN WEINTRAUB: Yes because we have an affidavit from the general contractor but not from the subvendor who was actually doing the work and could have spoken with personal knowledge as to whether the volunteers were in the room. >> CHAIRMAN STEVEN WALTHER: Madam Vice Chair. >> VICE CHAIR CAROLINE HUNTER: Could you please clarify are you now not crediting the Hazelwood affidavit I'm not following. >> COMMISSIONER ELLEN WEINTRAUB: I believe that this -- I'm not saying he's lying. But as I indicated before, he did not have personal knowledge of the production because he was -- he subcontracted the printing and the addressing to Phoenix Graphics and he told them what to do. But he wasn't there when they did it. So he cannot from personal knowledge testify as to whether there were volunteers in the room because he and his people were not in the room it went to a subcontractor. >> VICE CHAIR CAROLINE HUNTER: Is that subcontractor I just don't remember the name right now the same subcontractor that we got the other information from? >> No, he is not. He is one vendor. And he supplied only one affidavit for just that small amount. >> COMMISSIONER ELLEN WEINTRAUB: We don't have anything from Phoenix Graphics who actually did the work. >> VICE CHAIR CAROLINE HUNTER: So you're adding to the 91,000. >> COMMISSIONER ELLEN WEINTRAUB: Yes the amount that would have been covered by this particular affidavit that was produced by targeted creative communications through their subcontract to Phoenix Graphics. I don't have those numbers. But I would direct audit to do the math for me. >> VICE CHAIR CAROLINE HUNTER: You know, I think that just reminds me that it's obvious we've talked about this a million times and it even is in what we said a minute ago there's a lack of a clear standard for this volunteer exemption and now I'm even more confused and I'm sure the public is, too, and the Moldovans even left but I will reiterate my interest in trying to get a fourth vote for the policy we put out a few years ago and then put out again a couple of months ago. I'm happy to take comments and I intend to put that back on a public meeting agenda in the near future I think we're just making it more and more confusing of the public who is trying to take advantage of utilizing volunteers in our public process, in our political process. >> CHAIRMAN STEVEN WALTHER: Question on the 91,000, on the affidavit, was that credited for other funds except for the 91,000? >> COMMISSIONER ELLEN WEINTRAUB: There are no affidavits for the 91,000. >> CHAIRMAN STEVEN WALTHER: Well there's an affidavit saying no personal knowledge. >> COMMISSIONER ELLEN WEINTRAUB: No. >> CHAIRMAN STEVEN WALTHER: Okay. >> The targeted -- Mr. Hazelwood's affidavit is worth approximately $35,000. >> CHAIRMAN STEVEN WALTHER: I see. >> That is not included in the 91,000 figure. >> COMMISSIONER ELLEN WEINTRAUB: So my motion make a finding of failure to report apparent independent expenditures -- >> Would be the 91,000 plus the 35,000. >> COMMISSIONER ELLEN WEINTRAUB: Yeah that would cover the 91,000 plus the 35,000. >> CHAIRMAN STEVEN WALTHER: Well, I'm still wavering a little bit. I'll support Commissioner Weintraub. But I think that's really a close one for me. We do need some clarification on how we're going to treat affidavits and other things, too. >> COMMISSIONER ELLEN WEINTRAUB: You need to call the vote. >> CHAIRMAN STEVEN WALTHER: All in favor? (Chorus of ayes? >> CHAIRMAN STEVEN WALTHER: Opposed. >> (Chorus of nays). >> CHAIRMAN STEVEN WALTHER: The motion fails Commissioner Weintraub and I both voted nay vote and Commissioner Goodman and the virus chair and Commissioner Petersen voted in favor. >> COMMISSIONER ELLEN WEINTRAUB: You got it backwards we voted aye they voted nay. >> CHAIRMAN STEVEN WALTHER: We voted aye but it was successful for those votes that's what I meant to say. >> COMMISSIONER MATTHEW PETERSEN: If I can make an inquiry of either the audit staff or Office of General Counsel. Would it be -- I wasn't planning on supporting any portion of Finding 4. Since we voted against it, is there any need to make an affirmative motion to request that this be put in additional issues or is it just the 2-3 voting sufficient at this point to have that be put into additional issues? (Technical difficulties). >> 1,0 -- >> That number represents affidavit covered by vendors associated with direct mailers it includes the one that Commissioner Weintraub wanted to exclude. So you still need to vote on that finding on those two issues. The 91,000 as well as the million. >> COMMISSIONER ELLEN WEINTRAUB: How is that different from the motion I just made. >> The 91,000 you voted on part of the findings. >> COMMISSIONER ELLEN WEINTRAUB: No I included the million in my motion. >> CHAIRMAN STEVEN WALTHER: Mr. Calvert? >> I think that wasn't quite what I had -- >> See what happened? It's a telephone game. >> Commissioner Weintraub's motion regarding Finding 4 did contain an amendment to do something different than the audit division recommended. You haven't voted yet up or down one way or the other on Finding -- on their recommendation on Finding 4. I don't think you have to. But the record would be cleaner if you did. >> COMMISSIONER ELLEN WEINTRAUB: I'm not sure that -- I amended it because with all due respect I don't think anybody agrees with the actual recommendation. >> Right. >> COMMISSIONER ELLEN WEINTRAUB: So there was an amended motion I'm not sure what you accomplished by getting an up or down vote. I don't really see what that adds. >> It's up to the Commission. Without being intimately familiar with the finding, I saw an amendment. And that was not what the audit division had recommended. If your point as I understand it is that you were in favor of everything, your motion encompassed everything -- >> COMMISSIONER ELLEN WEINTRAUB: And then some. >> You don't have to. >> COMMISSIONER MATTHEW PETERSEN: At this point with the 2-3 vote on Commissioner Weintraub it would go to additional issues so we don't need to have a further moment and we can put this one to bed. >> That's kind of what I was saying. (Chuckles). >> It didn't come out that way. >> CHAIRMAN STEVEN WALTHER: It was the phraseology you were looking for. We're going to skip 3 and 4 but continue with 2 on the Hawaii Democratic Party A13-07. >> Good morning, Commissioners before you is the audit division recommendation memorandum for the Hawaii Democratic Party. The report presents 7 findings. Misstatement of financial activity, receipt that exceeds limit receipt of apparent impermissible funds report of debts and obligations record keeping for employees and failure to properly report media related expenditures and allocation of expenditures. Thank you. We are available to answer your questions. >> CHAIRMAN STEVEN WALTHER: Thank you. Commissioner Weintraub. >> COMMISSIONER ELLEN WEINTRAUB: Just a couple of questions. Just want to make sure. I think I know the answers to this but I just want to make sure. So there was some back and forth with the committee over the convention account. And I take it that now everyone is satisfied that that was purely a state convention account is that right. >> Correct. >> COMMISSIONER ELLEN WEINTRAUB: And we have sufficient documentation of that? We're all comfortable with that conclusion? >> Yes. >> COMMISSIONER ELLEN WEINTRAUB: Okay. Good. The other question that I had goes to the Finding 6. The coordination issue. So I just want to confirm that this is on all fours with what happened in the audit of the Democratic Executive Committee of Florida. So the -- in this one, in the Hawaii audit, they spent more than they were authorized to spend. On behalf of the Senate candidate. But the combined spending of the State Party and the National Party did not exceed the combined spending limit, is that correct? >> Correct. >> COMMISSIONER ELLEN WEINTRAUB: Okay. In that case I'm happy to approve the report. I just wanted to make sure I had my facts straight. >> COMMISSIONER LEE GOODMAN: What was the finding of the Democratic Executive Committee of Florida? What was the upshot of that matter? >> Essentially just -- and both situations are very similar with Hawaii. Just the committee had their spending limit. And the DSCC or whatever the other committee was had their spending limit. Hawaii exceeded their spending limit and only received maybe I forget what it was $5,000 from the DSSC -- >> COMMISSIONER LEE GOODMAN: DSCC yes. >> And just in response counsel is saying provided a letter from the DSCC saying that had we known they wanted more of the authority, we would have given the rest of our authority to them. You know, but that was after they had already made the expenditures. And just so we presented it in this report because these are the facts of Florida. Where they made the coordinated expenditures prior to receiving the authorization for the spending, the additional spending. >> COMMISSIONER LEE GOODMAN: What was the Commission's result in the Florida case? >> The Commission's result was they accepted that and acknowledged that the overall limit wasn't exceeded and there was no issue of requesting a refund from the committee. >> COMMISSIONER LEE GOODMAN: Sort of no harm no foul in other words as long as you didn't exceed the combined limit -- >> COMMISSIONER ELLEN WEINTRAUB: Well I think -- I thought this might be helpful. >> COMMISSIONER LEE GOODMAN: I'm sorry. >> COMMISSIONER ELLEN WEINTRAUB: Correct me if I'm wrong. But I think we made a finding but we did not require a refund. >> Yes, I'm sorry. >> COMMISSIONER ELLEN WEINTRAUB: And that's the same result that's being recommended here. >> COMMISSIONER LEE GOODMAN: I see. So finding but no refund. >> COMMISSIONER ELLEN WEINTRAUB: Right because they didn't get their paperwork in in advance of the spending which they should have done but had they done that, there wouldn't be any excess in spending. >> COMMISSIONER LEE GOODMAN: Do you know if there was ever a penalty assessed against the Democratic Executive Committee of Florida following up that audit finding? Unaware or no? >> Unaware. >> COMMISSIONER LEE GOODMAN: I'm sorry; I didn't understand that. >> Unaware, sir. >> COMMISSIONER LEE GOODMAN: Okay I might want to just check on that to see what the consequence is. If you have other questions. >> COMMISSIONER ELLEN WEINTRAUB: No. >> COMMISSIONER LEE GOODMAN: Mr. Chairman, I have a couple of questions. >> CHAIRMAN STEVEN WALTHER: Go right ahead. >> COMMISSIONER LEE GOODMAN: In Finding 4 on debts and obligations, the total amount was $115,000. Did the audit staff use the date of invoice as the trigger date for reporting a debt outstanding? In other words did you go get invoices and say -- >> We would primarily look at the invoice date or the date of inoccurrence but then also look at the invoice to see whether it was a 30-day -- pay within 30 days. For many of the cases these vendors the payments were months later. >> COMMISSIONER LEE GOODMAN: So let me ask what the audit staff's date of reporting is. Is it the invoice date or the due date. >> Traditionally I go with the invoice date. >> COMMISSIONER LEE GOODMAN: But you're saying that wasn't consequential here because the whole $115,000 was not even paid within 30 days? >> Correct. >> COMMISSIONER LEE GOODMAN: So whether you use trigger date, whether you use some kind of due date, they trip that wire. >> Correct. >> COMMISSIONER LEE GOODMAN: Can I continue, Mr. Chair. >> CHAIRMAN STEVEN WALTHER: Continue. >> COMMISSIONER LEE GOODMAN: Finding No. 5. There's a finding that employees to the tune of $12,413 were paid exclusively with non-Federal funds. >> Yes. >> COMMISSIONER LEE GOODMAN: Do you know what employees those were? >> Not right off hand. >> COMMISSIONER LEE GOODMAN: For example, was it a receptionist? I used to work for State Party and we had a janitor. You know, a regular employee of the committee who took care of the building. Do you know the nature of the $12,413. >> Not right offhand. >> COMMISSIONER LEE GOODMAN: Did you have any evidence that the people who were paid exclusively with non-Federal funds engaged in Federal election activity. >> Yes, just because we conceived that those Federal employees -- I can't say specifically that they were also on the Federal reports. You know as receiving a payroll. But just by the description I could say that they were engaged in some sort of Federal -- a portion of Federal (inaudible). >> COMMISSIONER LEE GOODMAN: Is that in the file I'll find on the computer or do I need to follow up with you to get that granular level of information. >> Yes. >> COMMISSIONER LEE GOODMAN: I'll follow up with you. Mr. Chairman I may not be prepared to vote on that today but I do want to work through these issues. >> This is a finding on record keeping whether they kept a record of the monthly log and they didn't satisfy that record of a monthly log. It's not whether or not what their role was. >> COMMISSIONER LEE GOODMAN: Yeah, I think there's been some disagreement on the Commission about whether a log is required, the technical language of the regulation for those who are paid exclusively with non-Federal funds. And where there's no indication that they actually engaged in Federal election activity. And that's why I'm -- by the way, the $12,413 is not remarkable but the legal principle can be so that's why I'm inquiring about it. Mr. Chairman, let's see . . . Turning in the report. Did the committee here submit any affidavits about the work of the employees for whom logs were not kept? No affidavits? Were they represented by counsel during the audit? >> Yes. >> COMMISSIONER LEE GOODMAN: Okay. Turning to Page -- >> I don't know if -- our position isn't arguing that these people aren't Federal employees they are saying there wasn't a log to document they did not have any Federal activities. >> COMMISSIONER LEE GOODMAN: I understand the issue, yes, ma'am. I was a little confused on Page 13. About the balance of $104,451. >> This is for which -- >> COMMISSIONER LEE GOODMAN: This is Finding 3 Page 13. You see leaving an impermissible balance of $104,451. Was that a balance of $10 4,451 that was intended for the convention account that wasn't transferred and that it -- the Federal account retained it? Or was that some -- I guess I'm just trying to sort what that -- the significance of that $104,451. >> Doug Cotish I was a manager on this job on Page 18 there's a schedule that delineates what's in that. We excluded the convention account receipts of $26,006 the rest of this would have been other impermissible receipts. >> COMMISSIONER LEE GOODMAN: Are the other impermissible receipts, were they represented to be receipts from the -- of the Federal account intended for the convention account that simply were not later transferred to the convention account? These are just ordinary improper contributions there was no relationship to the convention account for the 104. >> We're backing out any receipts that went into the convention. >> COMMISSIONER LEE GOODMAN: You've given them credit for the convention account and say we still have 104 -- >> If you look at the chart on Page 18. >> COMMISSIONER LEE GOODMAN: Thank you. I now understand that. >> Now we're dealing with that. >> COMMISSIONER LEE GOODMAN: Okay. On Page 25 of the report, and I'm looking at little 2 down at the bottom of the page. For an apparent independent extracurricular pendture totalling $11,922 it says they ran one -- was that a radio ad -- television ad. That said Linda Lingel was wrong then about a lot of things and she's wrong for Hawaii now. The audit staff believes the phrase she's wrong for Hawaii was expressed advocacy because it had the same meaning as defeat and therefore could have no other meaning than to urge the defeat of the candidate. So I take it the finding as to that $11,922 that was either an independent expenditure or coordinated expenditure? >> Actually -- >> COMMISSIONER LEE GOODMAN: Because of the representation of counsel so you're treated that as coordinated? >> Yes this is in the preliminary audit report stage and if you go over to Page 26, it's all shifting to coordinated. And expressing the excess limit. >> COMMISSIONER LEE GOODMAN: Now my question is the legal conclusion wrong for Hawaii is expressed advocacy did audit staff receive legal advice on that question. >> Just to make sure I understand the question you're asking -- >> COMMISSIONER LEE GOODMAN: I'm asking who made that call was it audit or audit in consultation with OGC? Often there's a memorandum that Lorenzo sends over when audit asks these questions. >> There was a memorandum that discussed this, yes. >> COMMISSIONER LEE GOODMAN: There was? Did that memorandum -- did that memorandum distinguish the Office of General Counsel's memorandum in an -- in the advice it gave to the Alternative Dispute Resolution office in a case called America's liberty pack where an ad said Claire MacCaskill wrong on the issues wrong for Missouri. >> COMMISSIONER ELLEN WEINTRAUB: If I may, I believe every single ADR agreement says in its terms explicitly that it's not precedential. So I'm -- I'm not sure why OGC would rely on an ADR agreement as precedent. >> COMMISSIONER LEE GOODMAN: I'm asking if OGC considered its advice in that case. >> There's no reference. >> COMMISSIONER LEE GOODMAN: Mr. Chairman, I might want to delve into this a little bit more. Outside of this context. There was a case that this Commission dismissed where a group called America's liberty -- I was actually recused from the case but where the advice of general counsel to the Alternative Dispute Resolution office was an ad with the tagline Claire McCass kill wrong on the issues or something to that effect wrong for Missouri was not express advocacy and that the case was dismissed it did not go to a final Settlement Agreement. And I think that's a close call there. And I think I want to delve into that issue a little bit more about whether that constitutes express advocacy again the finding of $11,922 is not remarkable in itself but the legal principle about what constitutes express advocacy is an important issue. >> Can I ask if you have handy, Commissioner Goodman, the specific reference that you are -- what you're referring to, which -- >> COMMISSIONER LEE GOODMAN: No but there's a memo that Lorenzo -- the case was America's liberty pack. And it started as a MER it ended up in ADR. There was a consultation. And there was a memo. And there was a dismissal. On that basis. >> We'll look into it further. >> COMMISSIONER LEE GOODMAN: Just to follow up on Commissioner Weintraub's question earlier about the combined coordinated expenditure limit, what was the -- do you have offhand what the coordinated expenditure limit was? The combined one for the national parties and the State Party? >> Not exactly I know it was 98,000 for the state and 98,000 -- >> COMMISSIONER LEE GOODMAN: Close to 200,000. >> Yeah. >> COMMISSIONER LEE GOODMAN: Do you know whether they -- did you even check to see what the National Party spent? >> Yes. >> COMMISSIONER LEE GOODMAN: It was less than their -- >> Plenty of cushion. >> COMMISSIONER LEE GOODMAN: Plenty of cushion, okay, thank you. Those of my questions at this time Mr. Chairman I want to investigate these issues a little bit more perhaps we can bring it back next week I believe we have one more meeting this month. >> CHAIRMAN STEVEN WALTHER: One more meeting that's it. Any further questions or comments to address? We'll move this over until the next open session. Thanks. The next matter Fiscal Year 2017 annual FOIA repor >> Thank you, Mr. Chairman Robert Kahm will be coming up to give a brief overview. Right here, Robert. But if I could, just recognize the hard work that the administrative log division has done this year in the FOIA realm in particular where we had record number of requests, record number of closures, and also a record number of appeals to handle. So my kudos to Robert Kahn Kate, Candace, Chris Meely, Hena Hussein, Steve Hajar and Pat Washington. And also Peter Hahn just left us. But he certainly did his fair share of the work before we drove him out of here with that workload. And I'll give you -- I think I owe it from a legal perspective that, yes, the Moldovans have left. They are no longer here. So I wanted to be the third person to say that at this meeting. >> COMMISSIONER LEE GOODMAN: Mr. Chairman I think they had about as much this as they could take. >> CHAIRMAN STEVEN WALTHER: I saw them looking at their watch going, this is America? >> I wanted that on the record. (Chuckles). >> Mr. Kahn. >> CHAIRMAN STEVEN WALTHER: They are still gone. >> Mr. Chairman, thank you for having me here. I know I have presented this to you guys some time ago. So I'm sure that you may have questions. And I would be happy to answer them. But just to sort of reemphasize what Greg said, during Fiscal Year 2017 the agency received a total of 150 FOIA requests and we closed 134 FOIA requests. Both of those are records for a year for the agency. We also received a total of 8 appeals and -- in Fiscal Year 2017 and closed 9 appeals because there's one left over from the previous year. Those are also records. The 154 requests was an increase of 16.3% from Fiscal Year 2016. And an increase of a whopping 4664.8% over the requests in 2015 in terms of closures it was an increase of 15.5% from FY16 and an increase of 65.4% -- 64.8 -- from FY15. Just to give you sort of a quick snapshot of where the FEC stands in comparison to Government-wide stats. And obviously currently because nothing is public for FY17, I'm just going to be comparing our FY17 to the Government calculated by DOJ stats for FY16. But for the simple requests, the FEC's average response time was 14.5 days. Government wide it was a little over 28 days. For complex requests, the FY2017 FEC response time was an average of 97.2 days. Government wide that response time was 128.5 days. So I'm sure there may be more specific questions that some of you have and I would be happy to answer. Thank you. >> CHAIRMAN STEVEN WALTHER: Thank you. Nice work. Do you include -- it seems in the past we learned that the statistics that we receive on ones that are pending are not those ones that are held in abeyance. Is there some distinction drawn between those that are waiting for further agencies or not? Or is that just some -- it may have been my imagination. >> No, it's a good question. They do ask us to separate -- well, not separate out but talk individually about for requests that are in consultation with other agencies. But that doesn't toll our clocks. So all of that time is attributed to the FEC. For any of those. And they are -- >> CHAIRMAN STEVEN WALTHER: For a year or two we count that in our figures. >> We do. It's averaged in in the year it's actually closed. So if one was pending for five years, that gets thrown on. And obviously will bust your average a little bit. >> CHAIRMAN STEVEN WALTHER: But if something is open, what do you do? You count the amount of time that's being run while it's sitting or waiting? Because it seems to me we'll have one or two we think may never hear from again. >> We do have several. Yeah, I mean, it's our policy to -- I won't say nag other agencies. But to consistently request updates. We actually -- I think I've mentioned this before. We're actually hiring for a new position within the law team that would do a lot of the FOIA and privacy work. And one of the gentleman who we have interviewed who used to work for DOJ said that that was probably the hardest part of his job was trying to deal with the other agencies. And sometimes that meant going to bosses and boss's bosses but it was really just that struggle of just trying to get in touch with someone and trying to get a straight answer. But every agency is working through these problems at their own speed. And so for us, we're very quick if DOJ or someone else asks us something. But fortunately usually the questions to us are usually relatively simple. So yeah, we have to rely on the other agencies. >> CHAIRMAN STEVEN WALTHER: Apologize for not looking at this earlier but what can we do to inform us whenever we receive a report along this line as to, okay, these are being held in abeyance and they have been in abeyance for 5 years, 3 years or 2 months so we can at least be sufficiently aware to see if we want to do something about it or just be aware of the fact that they have fallen in a hole and possibly never to be heard from again? And I'm also concerned about somebody who has a FOIA request and someone sends over a portion of it to DOJ and as I understand we keep the rest until we get it all. >> Correct. >> CHAIRMAN STEVEN WALTHER: I'm not to sure I'm comfortable with that. Because at some point that FOIA requester may be able to get a lot of information for what we might have. >> I'm sorry. >> CHAIRMAN STEVEN WALTHER: Is that not the way it works? >> I'm sorry; I was misinterpreting what you were saying. If there is something that needs to be sent out to another agency for consultation but it's only part of what would be our response, we typically don't wait to send what is just our internal information. >> CHAIRMAN STEVEN WALTHER: What you have? >> So there are a lot of pending FOIA responses where we have sent out at least one interim response. And so I believe on at least a couple of the consults, the only that we're waiting for is to hear about from the other agencies. That actually may be true of all of the outstanding consults. So yeah, no, we do try and provide as much information as we can. >> CHAIRMAN STEVEN WALTHER: As requested. >> Knowing that it's going to take a little longer if we deal with that. >> CHAIRMAN STEVEN WALTHER: You let them know that a portion of it is being held up because of another agency. >> That's definitely part of the cover letter. >> CHAIRMAN STEVEN WALTHER: I think I know the answer from the previous discussion but we -- that we don't do this but should we at some point say, we can't do this based upon what we know we're not going to get this information, go apply yourself? >> Yeah, I mean, it's just not something that the FOIA comprehends. I mean, clearly once you pass the 20-day period for response, the FOIA requester can go to court over that sort of thing. And of course that would get messy because we would be involved if you're talking about something where another agency is involved we would have to get them involved somehow. And indeed, we have had recent litigation which has required making sure that we got back FOIA records from another agency so that we could provide that in the course of litigation. So typically if you tell another agency that there's pending litigation, they go a little faster. But there's nothing that the agency can do to say, okay, we've waited five years for this department to get back to us. It's now out of our hands. It's just -- it's just part of the process. >> CHAIRMAN STEVEN WALTHER: About how many cases are pending like that? >> I tried to go through everything. I think that in terms of consults there are either 3 or 4. So it's not that many. It just happens that some of them are the oldest ones we have. So when we do get something back from them, it will take off a couple of really old FOIA requests so that will be really nice. >> CHAIRMAN STEVEN WALTHER: Are most of them DOJ? >> No, actually I think -- well I know that the one that we've been waiting the most on is with the State Department. I believe we have several there. And I don't want to -- I'm not trying to point them out but they are routinely regarded as sort of the department that takes the longest time. And you can sort of understand it based on the fact that I know we sent them stuff that was in Thai and in Spanish and someone has to translate that. So it's part of the puzzle sometimes that's what happens. But on the oldest one we have gotten something like it was like 600, 700 pages back from them. So we are just waiting for about 30 or 40 more pages. So we're very close. >> CHAIRMAN STEVEN WALTHER: Interesting. >> Yeah. >> CHAIRMAN STEVEN WALTHER: So I'm not sure I understood it completely I thought you said there are 4 outstanding like this but then you said several with the State Department. >> Yeah, and I may not have all of them -- I tried to go through all of this. There's 2 at the State Department. >> Wasn't the one with several other agencies? >> Yeah there's currently one that's -- that we had to send to 14 different agencies and I think we've gotten 5 back but I think in terms of these old -- in terms of any of the backlogged FOIAs there are 4 that are on consult, 3 of them to the State Department, 1 to the Office of Management and Budget. So as I said, we've definitely gotten stuff from both of those before. It's just a matter of waiting for them and being relatively consistent about reminding them that oh, yeah, you have something pending. >> CHAIRMAN STEVEN WALTHER: Do we Evernoteify the requester to say are you still interested. >> Yes. >> Yes. >> CHAIRMAN STEVEN WALTHER: Okay. Good. >> We have actually -- I think we have actually been able to cross one of the ones that was in the agency statistics that we sent to you at the end of FY17 that's already been closed based on a still interested letter. So yeah, we do try and do that. And sometimes we're successful. Other times we're able to further narrow what they are looking for, which can be very helpful. >> CHAIRMAN STEVEN WALTHER: Thanks. Commissioner Goodman. >> COMMISSIONER LEE GOODMAN: Greg, you said that in our averages for completing requests a case -- I'm calling a FOIA request completion doesn't go into that number until it's completed? >> Correct, yeah. >> COMMISSIONER LEE GOODMAN: So if we have old outstanding FOIA requests, they aren't in our averages yet. >> That's correct. >> COMMISSIONER LEE GOODMAN: So when they are completed our average is probably going to shoot up. >> It's going to shoot up absolutely. >> COMMISSIONER LEE GOODMAN: So our average on a complex request right now is 458 days? I'm looking at Page -- I don't see Page numbers Section D of the report. >> So the report actually gets submitted via an online web page this is just a printout. >> COMMISSIONER LEE GOODMAN: But the average for a complex one is 458 days. >> Yes. >> COMMISSIONER LEE GOODMAN: On simple ones it's 294 days. >> Yeah. >> COMMISSIONER LEE GOODMAN: And in looking at the 10 oldest pending requests before the agency, I see requests going back to 2011 that have not been completed and that's 1,583 days. >> Correct. >> COMMISSIONER LEE GOODMAN: I see -- >> That one is with the State Department. >> COMMISSIONER LEE GOODMAN: I was going to walk through that. And one goes back 1,014 days and you say 4 -- you've given the report requires us to give the 10 oldest requests, right? >> Yes. >> COMMISSIONER LEE GOODMAN: 4 of those are pending other agency's consults, consultations. >> I believe so the one from OMB may be -- may not have gotten to its place on the 10 list. >> COMMISSIONER LEE GOODMAN: No. 1 1 still might be a pretty old one waiting in OMB. >> It's certainly possible. >> COMMISSIONER LEE GOODMAN: You think of this oldest 10 there might be 3 that are held up because they are awaiting the State Department review. >> Yeah, I mean, I would have to go back -- >> COMMISSIONER LEE GOODMAN: You can't identify which ones of these? >> I know the oldest one is. >> COMMISSIONER LEE GOODMAN: So the one that was dated June -- we have a FOIA request dated June 9, 2011 that's -- as of the date this report was written was 10,583 days old and that's held up at the state -- 1,583 days old held up at the State Department. >> Yes. >> COMMISSIONER LEE GOODMAN: Does that mean we probably produced some records. >> Yeah we have produced a lot of records. >> COMMISSIONER LEE GOODMAN: Of the 10 oldest pending FOIA requests can you identify the others that are held up at the State Department? >> It looks like from my records that it's only 2 of them. And it would be the oldest and the 10th oldest. >> COMMISSIONER LEE GOODMAN: Meaning the one dated August 7, 2013. >> Yes. >> COMMISSIONER LEE GOODMAN: 8 of our old cases here are not awaiting another agency's consultation. >> That is my understanding, yes. >> COMMISSIONER LEE GOODMAN: We have a request dated October 18, 2012. It's over 1,200 days old. Do you know offhand who that is. >> Yes. It is a request for documents related to contracts for I.T. systems. And it's from I assume an attorney from Holland and Knight. >> COMMISSIONER LEE GOODMAN: Why haven't we concluded it? >> That I don't know. I can't answer that right here. With a lot of these, there has been a bottleneck that as I said, you know we're hiring someone to be specifically in charge of FOIA and Privacy Act processes. >> COMMISSIONER LEE GOODMAN: I'm sorry; I thought -- Greg, who currently is in charge of the FOIA operation? >> I am and Kate is our main point person. But we're bringing in a devoted staff person who would help us because right now all my staff have to do countless other things throughout the day. And we don't have anyone who is 100% devoted to the FOIA and Privacy Act. We're doing all kinds of other things. And my understanding about the I.T. contracts is that there has been some difficulty calling together all of the information from other sources, from our CFO's office, et cetera. There's been some hangups there. >> COMMISSIONER LEE GOODMAN: Okay. Robert, it sounds like you have the list what's the July 25th, 2013 request for? >> Yeah, that is an ongoing request about materials and documents related to MER 62-34. Off the top of my head, I can't remember which one that is. >> COMMISSIONER LEE GOODMAN: Have we closed MER 62-34 do you know? >> I believe we are. This is a request from Mr. McGinly. >> Yes. >> COMMISSIONER LEE GOODMAN: Have we made a partial production to Mr. McGinly. >> He has reviewed a lot of this stuff. >> COMMISSIONER ELLEN WEINTRAUB: It's probably somebody else by now. >> Well, yeah -- >> That's one of the problems. >> That is a question. >> I think it was a pretty significant -- >> I'm sorry? >> COMMISSIONER MATTHEW PETERSEN: If I'm remembering which one that relates to I think there's been a significant production. >> Yes, there is. >> COMMISSIONER LEE GOODMAN: Has it been a partial production? Has there been a partial production on the contracts for I.T. to the Holland & Knight requester. >> I believe so but I can check. >> COMMISSIONER LEE GOODMAN: August 7, 2013, pending over 1039 days what was the subject of that one? >> That one is all records to and from Congress since January 1st, 2009 regarding any impending enforcement actions. So my understanding of that is that it's a matter of collecting all of those records. >> COMMISSIONER LEE GOODMAN: It would be here in the agency right. >> They would, yeah. >> COMMISSIONER LEE GOODMAN: We haven't been able to collect those in 1039 days? >> I don't know. All I have here is that it's peping. My feeling is we have certainly collected some. >> COMMISSIONER LEE GOODMAN: Have we made partial production on that one? >> That I don't know. I would assume so but I can of course get back to you on that, as well. >> COMMISSIONER LEE GOODMAN: August -- there's -- there are 3 requests on August 7, are they all the same? Or from the same requester? >> No. They are the same requester. >> COMMISSIONER LEE GOODMAN: But different subjects. >> Yeah, different subjects. So one is a request for anything with the -- a request of disciplinary records that had certain disciplinary keywords. >> COMMISSIONER LEE GOODMAN: An employee deeply records. >> I would assume so. >> COMMISSIONER LEE GOODMAN: Why wouldn't we just deny that under an exemption to FOIA? >> I don't know. >> COMMISSIONER LEE GOODMAN: And close it. >> Yeah. I see where you're going. I do. I don't know exactly whether that was just stuff that could be easily denied. My feeling is it couldn't or it would have been off of here quickly. There was another -- again the list I have does not make direct quotes from what they requested. But it's records related to the development of policies and procedures. So I don't know how again that was. And another -- another was requesting records about various evaluations related to use of the Internet. >> COMMISSIONER LEE GOODMAN: You're talking about these are all the August 7. >> I'm going down the list. >> COMMISSIONER LEE GOODMAN: What day are we on now. >> We're still on the 7th. >> COMMISSIONER LEE GOODMAN: We're still on one requester on the 7th? >> Yeah. >> COMMISSIONER LEE GOODMAN: Studies on the Internet. You mean political speech on the Internet? >> I assume so since that was -- that has been a subject of discussion. There have been a couple that have had multiple interim releases but that dealt with the connection with the IRS and nonprofit political activities. That was -- >> COMMISSIONER LEE GOODMAN: Which date is that one, is that the August 23rd? >> Yeah. >> COMMISSIONER LEE GOODMAN: I'm sorry; does this go back to for lack of a better term are these requests about the focus on consultations between this agency Department of Justice and IRS? >> It wasn't consultations but it was part of the whole set of requests going as far as the Congressional requests and subpoenas about any and all information that the FEC had related to Ms. Lerner. So as I recall, this request was asking for some of the information generated by us in response to the Congressional request but it appears that there still is a little more to that. >> COMMISSIONER LEE GOODMAN: We have other documents? What? Regarding -- >> I mean, we made our responses to Congress I think that fulfilled everything that they wanted. I'm not sure if it appears that whatever this requester wanted was different enough that it wasn't part of whatever we were able to provide Congress. >> COMMISSIONER LEE GOODMAN: Okay. There may be other Lois Lerner documents in the building is that what we're saying? >> No, I don't think so. Because at least again from what I have here, it is not specific to Lois Lerner it may have included other interactions. >> COMMISSIONER LEE GOODMAN: Between the agency and IRS. >> Yes. >> COMMISSIONER LEE GOODMAN: You think we've made some partial. >> From my records we have made at least four interim releases of documents to that requester. >> COMMISSIONER LEE GOODMAN: 8/28/2013. >> Yes that is pending with the State Department. >> COMMISSIONER LEE GOODMAN: Oh that one is a State Department. >> Yeah and we have made one interim release. Just in terms of reading, this is something that -- >> COMMISSIONER LEE GOODMAN: I'm sorry Robert I'm seeing in the 10 oldest requests 1, 2, 3, 4, 5 requests all dated August 7, 2013 but they are out of order. >> Right. So this is actually something that Commissioner Weintraub and Tom War had noticed too. The problem and this is something that Candace Aly has to talk to OIP about every year because it's a little tricky. But some of them had tolling. So the request by -- this chart is created by OIP. And so they want it in a very particular format. And so they want it by number of days pending. And these are pending perfected requests. So some of them got tolled for some period of time. Which is why -- >> COMMISSIONER LEE GOODMAN: They are not as old in our hopper from the date of perfection. >> Yes. >> COMMISSIONER LEE GOODMAN: Understood. If I move off the oldest 10 list, by the way, when were these dates calculated? These days 1014 -- are these the outstanding days as of today or as of a month or two ago? >> This is as of the end of FY17. >> COMMISSIONER LEE GOODMAN: So September. >> September 30th. >> COMMISSIONER LEE GOODMAN: So you can add almost 60 days onto almost all of these day numbers here at this point. >> Correct. >> COMMISSIONER LEE GOODMAN: So when we conclude any of these, our average number of days of 450, I take it all of these would be considered complex requests. >> Yes. >> COMMISSIONER LEE GOODMAN: So our average number of days of 458 is actually much higher than 458 when you start adding in these 10 as well as -- I take it we have some that are around 1,000 days old that haven't even made the Top 10 list. >> Let's see. Let me just . . . >> Yeah that's probably an accurate statement. It's close. >> It will definitely have an adverse impact, particularly on the average for complex matters. Because for overall we obviously have the benefit of the simple ones that we can close out like within a couple of days. You can offset a couple long ones. But in the complex bunch, you know, that average is going to take even a bigger hit, you're correct. >> COMMISSIONER LEE GOODMAN: The real average, this is -- I understand this is an accurate average given the methodology of this report but if you were to expand that methodology to add in to the average number of days pending for matters that have been closed and that are still open, our average is probably going to be closer to 600 days maybe, 2 years? >> It's possible, yeah. >> COMMISSIONER LEE GOODMAN: Let me ask about another number and that is -- >> I'm sorry; were you specifically talking about that chart at D, the pending -- >> COMMISSIONER LEE GOODMAN: Yeah I was looking at 458 trying to understand how that number interfaces with these 10 longest cases. >> Right. So all of -- so what that chart is is for every pending perfected request that we currently have that's pending, so it does not include anything we closed over the course of FY17 so the 458. >> COMMISSIONER LEE GOODMAN: Are closed matters. >> No they are open and all pending. >> COMMISSIONER LEE GOODMAN: The 10 oldest are in the 458 number. >> Yes. >> COMMISSIONER LEE GOODMAN: That's helpful to know. Good. Then let me ask about a couple pages earlier I guess it's under Roman Numeral VI Section C, 10 oldest pending administrative appeals. And we have 1, 2, 3, 4, 5 old appeals well, one is not too old but we have some -- are those pending before the Commission? >> No. The reason we have kept them is because -- the Commission has dealt with each of the appeals. But with some of them the determination ended up being that we would continue producing documents on those underlying FOIA requests. So the appeal remains open in that sense. >> COMMISSIONER LEE GOODMAN: Until we complete the request. >> Correct. >> COMMISSIONER LEE GOODMAN: We have one that's 1,403 an appeal was granted and we still haven't completed document production. >> Is that the McGinly one. >> I believe so. >> COMMISSIONER LEE GOODMAN: Mr. McGinly appealed one has appealed and still hasn't gotten all of his documents? >> No, it's more complicated than that. That one I would put in the category of it's up to us to -- and we have tried to in various ways just try to confirm that it's closed. Because I don't believe there's anything else left for us to produce. >> COMMISSIONER LEE GOODMAN: Is that the same case with some of these others? I get that one, that one may be closed and we just haven't officially closed it on the books. >> There was a failure -- none of the motions on that appeal had 4 votes. So it's in kind of a suigeneris. >> COMMISSIONER LEE GOODMAN: Is that the same as the old appeals we think are completed are or we still working on some of those older appeals to provide the documents. >> I can't give an answer for those 3 other ones that are over 13 days. I do know that there is one of them that I am working on where, yes, there is still -- we questioned whether the requester still wanted more documents. This is Neil Reef was the requester. And we're still going through everything. Most of the time the length of the process is not necessarily in terms of gathering the documents. But it's in terms of reviewing them and applying the redactions. And going through the legal process. So I believe that's where we are on that one. >> COMMISSIONER LEE GOODMAN: One last question, Mr. Chairman. Do I owe you any documents in any open FOIA requests I've been pretty good at responding to Mr. Hajar. >> I don't believe so. >> COMMISSIONER LEE GOODMAN: Let me know if I do. >> And indeed, thank you to Commissioner Petersen for -- and Theo for being proactive and being sure that they had -- they knew what they needed to get to us and we were able to figure some of that stuff out. Now, I believe that in terms of requests waiting for some of the Commissioners the number is near 0. I would have to go back and make a complete look. But yeah, we're not as far as I can tell, we're not waiting on you guys for -- if it is, it's for one or two cases. And that's on us to remind you of. >> If I may, Mr. Chair, just so the Commission knows, the better part of Robert and I's work week is focusing on the backlog and different ways to address it. And of course the No. 1 plan that we had a while back that will come to fruition shortly is that dedicated staff for FOIA and Privacy Act matters which we believe will help considerably. And like I said, it's going to be a quarter-by-quarter thing. But it's certainly our goal to keep on improving and putting the resources necessary to Chippewa at it. We appreciate the Commission's interest and support in doing that. So thank you. >> COMMISSIONER MATTHEW PETERSEN: Thank you. And we're certainly on the Commission level certainly not oblivious to the avalanche that you are often under in terms of the numbers of the requests not only the sheer numbers of the request but the complexity of many of them and the document intensive nature of many of them and sometimes the extent of the searches that have to be undertaken. And it's always a case that when you're trying to dig yourself out of a hole and dirt keeps getting dumped on by the shovel load, it's a daunting task. And I know that you and Ms. Higgenbotham have been engaged in a very difficult undertaking and a very labor intensive undertaking but the efforts that you make in this field are much appreciated. It's a difficult -- you know, it's a difficult situation that you're in. Because, again, of the sheer volume. And I just wanted to note the efforts that you have made. And the appreciation that I have for those efforts. >> Thank you. >> Thank you, your Honor. >> CHAIRMAN STEVEN WALTHER: Anything further? I'll join in that. I think you do a very good job considering the amount of requests that come into us. I think to me some of the volumes of the requests, some requests require so much information that I don't see how you get it done. I did have one question, though, when are we going -- weren't we going to get some equipment that was going to speed this up and we have another person coming and will that be enough to keep it going for another couple of years? >> In fact we are just -- as part of our non-FOIA duties in admin law, we are just going through hopefully the last review of the contract for the software, the eDiscovery software, that we'll be using to process a lot of the FOIA requests, once that request emails, which is a large number of them. We'll finally have a dedicated system to doing that. It seems like from talking to OCIO, they are very excited about its ease of use. And I know we're very excited about being able to gather the quantities of requested documents in a relatively quick fashion. And have it all in front of us. And we can go through it and do our reviews. So yeah, that is another thing that rud really help us. And I expect that that will assist us in our backlog, as well. >> CHAIRMAN STEVEN WALTHER: Person power how are we doing? >> Person power, you know -- >> CHAIRMAN STEVEN WALTHER: Notice I'm getting sensitized. >> As Greg said, you know, we're going to have someone who is a dedicated FOIA responder and the people we're interviewing all have significant experience in handling FOIA backlogs. So I'm really excited about that. That they will have some good experience coming in knowing how to help an agency get through some of this stuff. So next year hopefully this list been a lot shorter and maybe there won't even be 10 oldest cases. >> There will always be 10 oldest. It's all relative. >> 10 oldest backlog. >> COMMISSIONER LEE GOODMAN: Hopefully there will be 3 numbers and not 4 numbers. >> We'll do our best. >> The other part of the equation is currently and granted, you know, it's only for this three-month period when Kate isn't here. But we're down -- Ms. Higgenbofham and of course Mr. Hahn just left so we're down 2 but my feeling is when Kate returns and especially when we hire this new person, which I assume will be early in the calendar year, as early as we can get it, then we'll be at essentially full string. >> CHAIRMAN STEVEN WALTHER: You'll be at the same person strength because you're losing add, losing one -- >> Yeah it would be slightly more. >> And based on my assessment of the resources necessary to do all of our responsibilities, I do feel like we will definitely want to replace the staff that's left in addition to the newly created position to be in a position to put a dent in our numbers. Because for -- this is not an excuse. But like a year and a half ago and beyond, we had 2 staff attorneys for a while there. And the impact of that was pretty devastating for a lot of the programs. So I want to stay away from getting in that position again. >> CHAIRMAN STEVEN WALTHER: Thanks. Anything further? I think there was one matter that I had just asking for the -- sorry. >> VICE CHAIR CAROLINE HUNTER: Mr. Chairman, I move to suspend the rules on the timely submission of Agenda Documents in order that the Commission may consider the late submission of Agenda Documents No. 1753 A 17534 B and 1753 C. . >> CHAIRMAN STEVEN WALTHER: Thank you this was an item that I asked to be put on the agenda and I'm going to make 5 minutes out of this because I know we're cutting into lunchtime and perhaps the rest of the day. What I'm asking is that the Office of General Counsel include the material that's been presented coming out of our office on enforcement most of which is already in a lot of the information that's provided. But that also it would be redacted so the public could also have the benefit of that information. If there's some particular concerns, I would be glad to address those and bring them up at a later date but I just wanted to get this out for consideration. Do people prefer to go to lunch right now? And we don't have to -- >> COMMISSIONER MATTHEW PETERSEN: I think lunch is always in order but I just had a quick question. Mr. Commissioner first of all I commend you in terms of the efforts you make in order to try to move things along. I know it's been a consistent emphasis and theme of yours. And I think that that is very helpful. In terms of the motion to amend the directive, I think that there's nothing immediately that stands out that says -- that puts up alarm bells but I have to admit I haven't been able to study it out with as much specificity as maybe I would like. And certainly I think it would be helpful for me to maybe -- for us to have some discussions offline and maybe you can get the input of the Office of General Counsel about this. But -- so I think I wouldn't be prepared to vote on anything today. But I do want to give it serious consideration. Like I said, I again want to commend you for your efforts to keep the workload moving. >> CHAIRMAN STEVEN WALTHER: We'll hold this off until the next open session. Any questions, let me know. I got a little bit bogged down recently. So I'm a little behind the 8 ball on some of this myself. At this time, I guess we're done and we'll go to the closed session. Are there any management or administrative matters. >> Mr. Chairman there are no such matters. >> CHAIRMAN STEVEN WALTHER: Thank you. Adjourned.