New disclosure policy for closed enforcement matters and other agency documents
On August 2, 2016, the Commission published a statement of policy that expands the range of publicly available records on the agency's enforcement and administrative functions. 81 Fed. Reg. 50,702.
Background
As the federal agency charged with enforcement of federal campaign finance laws, the Commission may generate enforcement actions (called Matters Under Review, or MURs) in the course of reviewing the reports filed by committees. In addition, individuals and groups outside the agency may initiate MURs by filing complaints. Other government agencies may also refer enforcement matters to the FEC. Most cases are handled by the Commission's Office of General Counsel (OGC). In some cases, however, investigations may be referred to the Alternative Dispute Resolution Office (ADRO) or the Administrative Fine Program (AFP).
To protect the interests of those involved in an enforcement matter, the Federal Election Campaign Act (the Act) requires that any Commission action on those matters be kept strictly confidential until the case is resolved. 52 U.S.C. § 30109(a)(12)(A). Prior to 2001, the Commission released to the public all documentation of an enforcement matter once the case was resolved. However, in AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003), the Court of Appeals for the D. C. Circuit warned that, in releasing enforcement information to the public, the Commission must “attempt to avoid unnecessarily infringing on First Amendment interests” in privacy of association and belief. The court suggested that in forming a disclosure policy the Commission must balance its own interests in deterring future violations and promoting its own accountability with these First Amendment interests. Following the decision, the Commission issued an interim statement of policy which listed several categories of documents integral to its decision-making process that the agency would continue to disclose upon termination of an enforcement matter. See Statement of Policy Regarding Disclosure of Closed Enforcement or Related Files, 68 Fed. Reg. 70,423 (Dec. 20, 2003).
New Statement of Policy
The new policy statement replaces the interim policy adopted in 2003, and applies regardless of an enforcement matter's outcome. As of September 1, 2016, documents placed on the public record will include not only those identified in the interim policy , but also a broader range of General Counsel’s reports and memoranda in the case, as well as administrative exchanges with respondents regarding cases, and various documents and letters prepared in conjunction with the resolution of a case.
With respect to administrative fine cases and ADR cases, the new policy continues to disclose the same broad categories of documents as the prior policy. In administrative fine cases , the Commission will continue to place the entire administrative file on the public record, which includes documents such as recommendations and accompanying responses and memoranda to the Commission, the final determination recommendation, and various documents prepared in conjunction with the resolution of a case.
For ADR cases, documentation that the Commission will place on the public record will continue to include original complaints or internal FEC referrals that initiate enforcement actions, along with reports and briefs from OGC and responses to those reports and briefs by respondents, administrative exchanges with respondents, the ADRO recommendation, and various documents prepared in conjunction with the resolution of a case.
The Commission has also decided to make public a number of documents integral to its administrative functions, including statistics and documents related to public funding, enforcement case management, debt settlement plans with terminating committees and proposed administrative terminations of political committees. The Commission will also place on the public record various reports required under other federal statutes on topics such as contracting, travel and gifts received by Commissioners and employees, and the agency's equal employment opportunity and privacy management programs.
For additional details, please consult the policy statement. The Commission plans to place the documents listed in the notice on public record in all matters it closes after September 1, 2016, no matter the outcome.
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