Court denies motion to compel in CREW v. FEC (22-0035)

On May 10, 2024, the United States District Court for the District of Columbia (the court) denied Citizens for Responsibility and Ethics in Washington’s (CREW) motion to compel the Commission to provide additional materials regarding its dismissal of CREW’s administrative complaint.

Background

On January 6, 2022, CREW sued the FEC, alleging the agency acted “contrary to law” when it dismissed CREW’s administrative complaint against Freedom Vote, a non-profit that CREW claims failed to organize, register, and report as a political committee as required under federal law. After the FEC did not appear in the lawsuit, CREW filed a motion to compel the production of documents. After the FEC produced the administrative record, CREW claimed that it was entitled to additional materials, including the FEC’s internal communications and documents reflecting the Commissioners’ deliberations.

Analysis

The court noted that an agency is entitled to a strong presumption of regularity that it properly designated the administrative record; however, a court may allow supplementation of the record as an “exception and not the rule.” Because the FEC had already produced the administrative record, the court permitted CREW to convert its motion to compel into one to complete or supplement the administrative record, or for extra-record discovery. The court stated, “CREW seeks the omitted documents through three pathways: completion of the record, supplementation of the record, and extra-record discovery.”

Completion of the record

The court concluded that the documents CREW sought were of a deliberative nature and therefore protected.

Predecisional and deliberative documents are not part of the administrative record and are entitled to a presumption of regularity. The court noted that there was no evidence to show that the Commissioners made the “express choice” to use the omitted documents in their explanation of votes. Therefore, the court concluded that “the deliberative-process privilege shields the omitted documents, and the administrative record is complete without them.”

Supplementation of the record

As to CREW’s assertions that the FEC should supplement the record with the omitted documents, the court denied these requests as well. Supplementation of the record is limited to three unusual circumstances, which the court concluded did not warrant supplementation in this case.

Extra-record discovery

The court noted that extra-record discovery is warranted in only two circumstances. Because the court determined that the production of the documents would not aid in judicial review and there was a failure to show bad faith or improper behavior, the court denied CREW’s request for extra-record discovery.

Based on the foregoing, the court denied CREW’s motion to compel.

Resources

• CREW v. FEC (22-0035) litigation page