On June 15, 2011, the Commission published a notice in the Federal Register of its new procedures for providing respondents in enforcement proceedings with relevant documents obtained by the Commission as part of its investigation.
The Commission believes that the principles of the due process clause set forth in Brady v. Maryland (373 U.S. 83) should apply following investigations conducted under 2 U.S.C. § 437g and 11 CFR Part 111. These principles hold that the government is required to provide defendants with exculpatory or potentially exculpatory evidence that is “material to guilt or punishment.” Although courts have held that Brady does not apply in administrative proceedings, the Commission’s enforcement proceedings may occasionally inform potential or concurrent criminal proceedings, and therefore the Commission is adopting a formal internal procedure requiring disclosure of information to respondents.
The Commission also believes that formalizing the procedure will promote fairness in the enforcement process, promote administrative efficiency and certainty and contribute to the Commission’s goal of fair and open investigations.
The Commission will make available to the respondent all relevant documents gathered by the Office of General Counsel (OGC) during the course of its investigation, including all documents not publicly available and any documents containing exculpatory information—in other words, information that is likely to prove that a respondent is free from blame. The documents covered by this procedure include:
- Documents turned over in response to any subpoena or other request, written or otherwise, which are not already in the possession of the respondent;
- All deposition transcripts and exhibits; and
- Any other documents gathered by the Commission which are not publicly available and not otherwise in the respondent’s possession.
Unless otherwise determined by the Commission, OGC may withhold a document or a category of documents from a respondent if it contains privileged information or if OGC finds that it is not relevant to the subject of the proceeding. OGC may also withhold documents if the Commission is prevented by law or regulation from disclosing the information in the documents, or if a document contains some information that cannot be disclosed and the information cannot be removed from the document without changing its meaning. Finally, OGC may withhold a document or a category of documents (along with any information derived from the documents) if the Commission obtained the information from the Department of Justice or another government entity and a written agreement prevents its disclosure.
OGC will disclose the documents and information if the respondent files a written request within 15 days of either the date of the General Counsel’s notification of a recommendation to proceed to a vote on probable cause, or no later than seven days after the certification of a vote by the Commission to conciliate with a respondent. Within ten business days of receiving these disclosed documents, a respondent may request in writing that OGC produce a list of documents or categories of documents withheld.
Co-respondents and disclosure
In some cases there may be more than one respondent under investigation in the same or a related matter. In these cases, OGC must get a confidentiality waiver from the co-respondent before disclosing documents that are about the corespondent or were provided by the co-respondent. Additionally, the respondent receiving these documents may be required to sign a nondisclosure agreement to keep confidential any document or information it obtains from the Commission. If the co-respondent does not agree to provide a confidentiality waiver, OGC will (if possible) summarize or redact those portions of the document subject to confidentiality. If this is not possible, OGC will ask the Commission to balance competing concerns of disclosure and confidentiality. If the confidentiality issue cannot be resolved with respect to a co-respondent, then OGC may try to segregate the matters under review.
In some cases information provided by one co-respondent may contains exculpatory information or be relevant to the General Counsel’s brief accompanying the notice of a recommendation to vote on probable cause for another co-respondent. In these cases, that information will be provided to the other co-respondent, subject to the same confidentiality concerns described above. Before disclosing any portion of a document that raises an unresolved confidentiality issue, OGC will ask the Commission to decide whether disclosure of a document containing exculpatory information conforms to the confidentiality provisions of 2 U.S.C. §§ 437g(a)(4)(B)(i) and 437g(a)(12).
Conciliation and document production
If the Commission votes to enter into conciliation prior to completing an investigation, the General Counsel will take reasonable steps to limit further formal investigation related to that respondent, as long as the respondent agrees to toll the applicable statute of limitation. Without a tolling agreement, the formal investigation and conciliation may take place simultaneously. If the Commission receives documents during conciliation, the General Counsel will inform the respondent of any documents that it would otherwise be required to be produced under this procedure.
No later than June 1 of each year, the General Counsel will prepare and distribute to the Commission a report describing the application of this procedure over the previous year. Failure to adhere to this procedure does not create a jurisdictional bar for the Commission to pursue all remedies to correct or prevent a violation of the Act. Disclosure of documents under the provisions of this procedure is not an admission by the Commission that the information takes away the respondent’s liability for potential violations of the Act. The Commission retains discretion in its enforcement program and will exercise it as appropriate with respect to facts and circumstances of each matter it considers.