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Citizens for Responsibility and Ethics in Washington v. FEC (1:04CV01672)


On October 27, 2005, the US District Court for the District of Columbia granted the parties’ joint motion to dismiss this case, which challenged the Commission’s refusal to provide documents relating to an ongoing enforcement matter.


On July 12, 2004, Citizens for Responsibility and Ethics in Washington’s (CREW), a nonprofit 501(c)(3) corporation, asked the FEC to provide it with an investigative report prepared by counsel for Westar Energy Company (Westar) regarding possible campaign finance violations by the company. CREW believed the report had been voluntarily forwarded by Westar to the FEC.

The FEC denied CREW’s request for information, citing the “confidentiality provision” of the FECA. Under this provision, any “notification or investigation made under this section shall not be made public by the Commission without the written consent of the person receiving such notification or the person with respect to whom such investigation is made.” 2 U.S.C. §437g(a)(12)(A).

CREW appealed the FEC’s denial of its Freedom of Information Act (FOIA) request, arguing that the “confidentiality provision” does not apply to the Westar report. The FEC denied the appeal.  The plaintiff filed a court complaint on September 30, 2004.

Court decision

On May 16, 2005, the U.S. District Court for the District of Columbia granted the FEC’s motion for summary judgment in this case, and denied the plaintiff’s motion for summary judgment, finding that the FEC’s interpretation of the confidentiality provision of the Federal Election Campaign Act (FECA) is reasonable.

In court, the plaintiff argued that the Westar report does not fall under the FECA’s confidentiality provision because that provision does not apply to matters in their pre-investigatory stage. The FEC argued, to the contrary, that the provision applies to all information in its open enforcement files.

The standard for judicial review of an agency’s construction of a statute it administers is called Chevron review, after the Supreme Court’s decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). In Chevron review, the court asks first whether Congress has spoken to the precise issue at hand. If so, then the agency’s interpretation of the statute must implement Congress’s unambiguous intent. If Congress has not spoken explicitly to the question at hand, then court must ask a second question--whether the agency’s rules are based on a permissible reading of the statute. If the agency’s interpretation is reasonable, then the court must defer to that interpretation.

In this case, the court found that the Act’s confidentiality provision does not speak to the precise issue at hand because it can support both the plaintiff’s and the defendant’s interpretations. Under the second step of Chevron review, the court found that the FEC’s interpretation of the provision is reasonable because it “satisfies the heightened privacy concerns of the FECA confidentiality provision and minimizes the adverse consequences of public knowledge of that ignominious pre-investigatory status.”

The plaintiff had also taken issue with the FEC’s unwillingness, in response to their FOIA request, to acknowledge whether it had the Westar report at all. The FEC countered that acknowledging possession of the report would in itself reveal confidential information. The court concluded that the FEC acted appropriately and in the best interests of the confidentiality provision.

The court granted the FEC’s request for summary judgment and denied the plaintiff’s request for summary judgment. CREW subsequently filed a motion for reconsideration of the court’s decision.

Motion to dismiss

Plaintiffs had filed a Freedom of Information Act (FOIA) request with the FEC in 2004 seeking access to documents concerning the agency’s ongoing investigation of Westar Energy, Inc.. The Commission denied the request, citing the confidentiality provisions of 2 U.S.C. 437g(a)(12(A). CREW challenged that decision in court, but in May 2005 the district court upheld the agency’s response. CREW immediately asked the court to reconsider.

On August 18, 2005, the FEC closed its enforcement case against Westar and publicly released the documents CREW had sought, thereby rendering the request for reconsideration moot.

Source:   FEC Record— December 2005; July 2005; November 2004