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From: Campaign Legal Center
Posted May 29, 2009 by Paul S. Ryan
Picture: President Obama signs Executive Orders for open government.
Yesterday, the CLC sent two letters to the FEC concerning the Commission’s refusal to disclose documents pertaining to closed enforcement actions—documents that the FEC’s regulations and “Statement of Policy Regarding Disclosure of Closed Enforcement and Related Files” require the Commission to make public. Not only does the Commission’s withholding of these documents violate its own regulations and written policy, but also flies in the face of a commitment issued by President Obama on his first day in office to an “unprecedented level of openness in Government.”
The first letter to the Commission was a formal appeal of a decision by the FEC Freedom of Information Act (FOIA) Service Center denying a CLC FOIA request for a General Counsel’s Report and the Factual and Legal Analyses written by the Commission Office of General Counsel in an connection with a complaint filed against the Romney for President Committee and one of his supporters, Kem Gardner (MUR 5937). The complaint alleged that Gardner made an illegal in-kind contribution—and that the Romney Committee accepted an illegal in-kind contribution—when Gardner paid $150,000 to charter an airplane and flew 150 people from Utah to Boston to “dial for dollars” at a Romney fundraising event. The Commission deadlocked 3-3 on whether to find reason to believe that federal law was broken and to commence an investigation, so the Commission closed the file in the matter. The Commission never made public the General Counsel’s Report or the Factual and Legal Analyses and explicitly rejected the CLC’s FOIA request for these documents.
The second letter was sent jointly by the CLC and Democracy 21, noting that in recent months, and with unprecedented frequency, the Commission has been closing enforcement actions after failing by a vote of 3-3 to pass motions related to such actions and has failed to make public General Counsel’s Reports and Factual and Legal Analyses with respect to many of these closed enforcement actions. We requested that the Commission make public all General Counsel’s Reports and Factual and Legal Analyses in closed enforcement actions.
This second, more general letter was prompted by the denial of our March FOIA request in the Romney matter. The CLC has five more similar FOIA requests pending at the FEC and the denial of our request in the Romney matter gives us little hope that the outcome will be different in our other pending requests. The six FOIA requests filed by the CLC this year pertain to only a fraction of the closed enforcement actions in which General Counsels Reports and Factual and Legal Analyses have been withheld from the public by the Commission. And, given that the Commission’s regulations and Statement of Policy require that these documents be made public, FOIA requests should not even be necessary to obtain these documents. For these reasons, we decided to make a more general appeal to the Commission with respect to the disclosure of these documents in all closed enforcement actions.
In denying our FOIA request in the Romney matter, the FOIA Service Center determined that “the agency is precluded from providing this information as it deals with predecisional documents that are covered under the deliberative process privilege under FOIA Exemption 5," citing 5 U.S.C. § 552(b)(5) for its position.
For the reasons detailed in our two letters to the Commission, the FOIA Service Center’s determination was erroneous with respect to the Romney matter and, to the extent this is the rationale being relied upon by the Commission to withhold documents in the other closed enforcement actions, it is similarly erroneous.
Our letters cite Supreme Court and D.C. Circuit Court precedent making clear that FOIA Exemption 5 is not mandatory. It does not preclude the Commission from providing General Counsel’s Reports and FLAs to the public but, instead, provides federal agencies with the option of asserting a privilege and withholding “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). Even if this exemption is available under FOIA, the Commission is free as a matter of law and policy to publicly disclose General Counsel’s Reports and Factual and Legal Analyses.
Indeed, as our letters further explain, the Commission has adopted regulations and a policy statement that require the Commission to disclose General Counsel’s Reports and Factual and Legal Analyses. This is therefore not a discretionary matter—the Commission and its staff must follow the Commission’s own regulations and policy until they are changed. The Commission’s regulations state that:
[T]he Commission shall make the following materials available for public inspection and copying: . . . Opinions of Commissioners rendered in enforcement cases, General Counsel’s Reports and non-exempt 2 U.S.C. 437g investigatory materials shall be placed on the public record of the Agency no later than 30 days from the date on which all respondents are notified that the Commission has voted to close such an enforcement file[.]
11 C.F.R. § 4.4(a) (emphasis added). Further, the Commission’s “Statement of Policy Regarding Disclosure of Closed Enforcement and Related Files” clearly states:
With respect to enforcement matters, the Commission will place the following categories of documents on the public record:
. . . .
3. General Counsel’s Reports that recommend dismissal, reason to believe, no reason to believe, no action at this time, probable cause to believe, no probable cause to believe, no further action, or acceptance of a conciliation agreement;
4. Notification of reason to believe findings (including Factual and Legal Analysis);
. . . .
The Commission is placing the foregoing categories of documents on the public record in all matters it closes on or after January 1, 2004.
68 Fed. Reg. at 70427 (emphasis added).
If the Commission would like to withhold General Counsel’s Reports and Factual and Legal Analyses under FOIA Exemption 5, it must open a rulemaking with notice and comment to change the existing regulations, and follow its procedures for amending or withdrawing the policy statement which currently governs this issue. Until then, the Commission’s existing rules and policies require such documents to be disclosed.
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