Agency Procedure for Disclosure of Documents and Information in the Enforcement Process, 34986-34992 [2011-14096]
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Federal Register / Vol. 76, No. 115 / Wednesday, June 15, 2011 / Notices
FEDERAL ELECTION COMMISSION
[Notice 2011–06]
Agency Procedure for Disclosure of
Documents and Information in the
Enforcement Process
Federal Election Commission.
Notice of Agency Procedure.
AGENCY:
ACTION:
The Federal Election
Commission (‘‘Commission’’) is
establishing an agency procedure to
formally define the scope of documents
that will be provided to respondents by
the agency, and to formalize the
agency’s process of disclosing such
documents, during the Commission’s
investigation in enforcement matters
brought under the Federal Election
Campaign Act of 1971, as amended (the
Act).
DATES: Effective June 30, 2011.
FOR FURTHER INFORMATION CONTACT:
William A. Powers or Ana J. PenaWallace, Attorneys, 999 E Street, NW.,
Washington, DC 20463, (202) 694–1650
or (800) 424–9530.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Recent Changes to the Commission’s
Enforcement Procedures
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The Commission has, in recent years,
adopted several changes to its
enforcement process in an effort to
provide complainants, respondents and
the public with greater transparency
with respect to the Commission’s
process.
On May 1, 2003, the Commission
published a Notice of Public Hearing
and Request for Public Comment
concerning its enforcement procedures.1
The Commission received written
comments from the public, many of
which urged increased transparency in
Commission procedures and expanded
opportunities to contest allegations.2 On
June 11, 2003, the Commission held an
open hearing on its enforcement
procedures during which the
Commission considered written
comments received and oral testimony
from several witnesses. In response to
issues raised in written comments and
at the hearing, the Commission issued
several new agency procedures.3
1 See Enforcement Procedures, 68 FR 23311 (May
1, 2003), available at http://www.fec.gov/agenda/
agendas2003/notice2003-09/fr68n084p23311.pdf.
2 Comments and statements for the record are
available at http://www.fec.gov/agenda/
agendas2003/notice2003-09/comments.shtml.
3 See Statement of Policy Regarding Deposition
Transcripts in Nonpublic Investigations, 68 FR
50688 (Aug. 22, 2003), available at http://
www.fec.gov/agenda/agendas2003/notice2003-15/
fr68n163p50688.pdf; Statement of Policy Regarding
Treasurers Subject to Enforcement Proceedings, 70
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On December 8, 2008, the
Commission issued a Notice of Public
Hearing and Request for Public
Comment regarding the compliance and
enforcement aspects of its agency
procedures.4 There were numerous
written comments filed in response to
the Notice and on January 14–15, 2009,
the Commission received testimony at a
public hearing.5
Some commenters proposed
alternative procedures with respect to
information and documents in the
possession of the Commission. One
commenter recommended instituting a
program whereby potential respondents
in internally generated matters 6 would
be given a written summary of the
matter and an opportunity to respond in
writing before the Commission makes a
reason to believe (RTB) finding and to
provide earlier notice to respondents
about the Office of General Counsel’s
(OGC) recommendation to the
Commission.7 Other commenters urged
the Commission to adopt procedures to
provide respondents with the
opportunity to review and respond to
any adverse course of action
recommended by the Commission’s
Office of General Counsel before the
Commission considers such
recommendation.8 Still others requested
even more general access by
respondents to documents and
information held by the Commission.9
FR 3 (Jan. 3, 2005), available at http://www.fec.gov/
law/policy/2004/notice2004–20.pdf; Procedural
Rules for Probable Cause Hearings, 72 FR 64919
(Nov. 19, 2007), available at http://www.fec.gov/
law/cfr/ej_compilation/2007/notice_2007-21.pdf.
4 See Agency Procedures, 73 FR 74495 (Dec. 8,
2008), available at http://www.fec.gov/law/policy/
enforcement/notice_2008-13.pdf.
5 The comments received by the Commission, as
well as the transcript of the hearing are available
at http://www.fec.gov/law/policy/enforcement/
publichearing011409.shtml.
6 Enforcement matters may be internally
generated based on information ascertained by the
Commission in the normal course of carrying out
its supervisory responsibilities. See 2 U.S.C. 437g.
These non-complaint generated matters can arise
from internal referrals to the Office of General
Counsel from the Commission’s Reports Analysis
Division or Audit Division.
7 See Comment of Scott E. Thomas dated January
5, 2009, available at
http://www.fec.gov/law/policy/enforcement/2009/
comments/comm15.pdf.
8 See Comments of Perkins Coie LLP Political
Law Group dated January 5, 2009, available at
http://www.fec.gov/law/policy/enforcement/2009/
comments/comm25.pdf.
9 See Comments of Election Law and Government
Ethics Practice Group of Wiley Rein LLP dated
January 5, 2009, available at http;//www.fec.gov/
law/policy/enforcement/2009/comments/
comm33.pdf; Comments of Perkins Coie LLP
Political Law Group dated January 5, 2009,
available at http://www.fec.gov/law/policy/
enforcement/2009/comments/comm25.pdf;
Comments of Laurence E. Gold dated January 5,
2009, available at http://www.fec.gov/law/policy/
enforcement/2009/comments/comm20.pdf;
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The Commission has since updated
and augmented several of its procedures
including the adoption of: (1) A pilot
program providing opportunity to
persons requesting an advisory opinion
to appear before the Commission to
answer questions,10 (2) a pilot program
providing audited committees with an
opportunity to request a hearing before
the Commission prior to the
Commission’s adoption of a Final Audit
Report,11 and (3) a procedure providing
respondents with notice of a noncomplaint generated referral 12 and an
opportunity to respond prior to the
Commission’s consideration of whether
it has reason to believe that a violation
has occurred.13 Further, in December
2009, the Commission issued a
Guidebook for Complainants and
Respondents on the FEC Enforcement
Process, which provides a step-by-step
guide to assist and educate
complainants, respondents and the
public concerning the Commission
enforcement process.14
The procedure set forth herein
formalizes the Commission’s policy on
disclosure to respondents of relevant
information gathered by the
Commission in the investigative stage of
its enforcement proceedings.
II. Disclosure of Exculpatory
Information
A. Criminal Proceedings: The
Constitutional Obligation Under
Brady—the Government’s Duty To
Disclose
One issue that must inform the
Commission in its consideration of any
procedure regarding the disclosure of
documents and information to
respondents in the enforcement process
is whether, and to what extent, there are
relevant requirements or constraints
imposed by the United States
Constitution. The seminal Supreme
Court case involving the Constitutional
Comments of Robert K, Kelner dated January 5,
2009, available at http://www.fec.gov/law/policy/
enforcement/2009/comments/comm10.pdf.
10 See Advisory Opinion Procedures, 74 FR 32160
(July 7, 2009), available at http://www.fec.gov/law/
cfr/ej_compilation/2009/notice_2009-11.pdf.
11 See Procedural Rules for Audit Hearings, 74 FR
33140 (July 10, 2009), available at http://
www.fec.gov/law/cfr/ej_compilation/2009/
notice_2009-12.pdf.
12 Non-complaint generated referrals, also
referred to as ‘‘internally generated matters,’’ are
based on information ascertained by the
Commission in the normal course of carrying out
its supervisory responsibilities. See 2 U.S.C. 437g
and note 6 above.
13 See Procedural Rule for Notice to Respondents
in Non-Complaint Generated Matters, 74 FR 38617
(August 4, 2009), available at http://www.fec.gov/
law/cfr/ej_compilation/2009/notice_2009-18.pdf.
14 This Guidebook is available at http://
www.fec.gov/em/respondent_guide.pdf.
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parameters required by, and imposed
upon, the government, in the context of
criminal proceedings, is Brady v.
Maryland.15 Brady held that the Due
Process Clause of the Fifth Amendment
to the United States Constitution
requires the government to provide
criminal defendants with exculpatory
evidence—i.e., ‘‘evidence favorable to
an accused,’’ that is ‘‘material to guilt or
punishment’’—known to the
government but unknown to the
defendant.
As noted, the Supreme Court in Brady
held that the Due Process Clause
requires the government to provide
criminal defendants with exculpatory or
potentially exculpatory evidence that is
‘‘material to guilt or punishment.’’ ‘‘The
rationale underlying Brady is not to
supply a defendant with all the
evidence in the Government’s
possession which might conceivably
assist in the preparation of his defense,
but to assure that the defendant will not
be denied access to exculpatory
evidence known only to the
Government.’’ 16 Brady is a rule of
disclosure, not of discovery.17
Therefore, Brady obligations apply even
when a defendant does not request the
evidence.18 The obligations also apply
regardless of the good faith of the
prosecutor.19 However, no
constitutional duty exists under Brady
to provide evidence already in the
defendant’s possession or which can be
obtained with reasonable diligence.20
In Giglio v. United States, 405 U.S.
150, the Supreme Court went one step
further by requiring disclosure in
criminal proceedings ‘‘[w]hen the
‘reliability of a particular witness may
well be determinative of guilt or
innocence,’ ’’ and the prosecution has
evidence that impeaches that witness’
testimony.21 ‘‘Such [impeachment]
evidence is ‘evidence favorable to an
accused’ so that if disclosed and used
effectively, it may make the difference
between conviction and acquittal.’’ 22
For example, courts have held that
impeachment evidence for a key
15 Brady v. Maryland, 373 U.S. 83, 87–88 (1963)
(Brady).
16 United States v. LeRoy, 687 F.2d 610, 619 (2d
Cir. 1983) (citations omitted).
17 See United States v. Bagley, 473 U.S. 667, 675
n.7 (1985) (Bagley).
18 See United States v. Agurs, 427 U.S. 97, 107–
10 (1976).
19 Brady, 373 U.S. at 87.
20 See, e.g., United States v. Meros, 866 F.2d 1304,
1308 (11th Cir 1989); Hoke v. Netherland, 92 F.3d
1350, 1355–56 (4th Cir. 1996); United States v.
Beaver, 524 F.2d 963, 966 (5th Cir. 1975).
21 Giglio v. United States, 405 U.S. 150, 154–55
(1972) (Giglio).
22 Bagley, 473 U.S. at 676 (quoting Brady, 373
U.S. at 87).
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testifying witness includes but is not
limited to the following: Prior
statements by a witness that are
materially inconsistent with the
witness’s trial testimony; 23 a conviction
of perjury; 24 prosecutorial intimidation
of a witness; 25 and plea bargains and
informal statements by the prosecution
that a witness would not be prosecuted
in exchange for his testimony.26
Because Brady disclosure in criminal
proceedings is required under the Due
Process Clause, legal privileges against
discovery such as attorney-client, workproduct, or deliberative process do not
allow the government in criminal
proceedings to avoid disclosure on these
grounds.27 However, courts have
recognized that Brady does not apply to
attorney strategies, legal theories, and
evaluations of evidence because they are
not ‘‘evidence.’’ 28
B. The Legal, Professional, and Ethical
Duties To Disclose—the Lawyer’s
Independent Obligations in Criminal
Proceeding
In addition to, and quite separate
from, the Constitutional requirements in
criminal cases, there is broad
acceptance in the legal and judicial
professions that there is also an ethical
obligation to provide exculpatory or
incriminating information to
respondents and litigants that, if not
provided, may negatively impact the
ability of a respondent or litigant to
obtain a just result through a fair and
impartial proceeding with the
government.
For example, Rule 3.8(d) of the
American Bar Association’s Model
Rules of Professional Conduct (ABA
Model Rules), imposes an ethical duty
on criminal prosecutors that is separate
and independent from the
Constitutional disclosure obligations
addressed in Brady. The ABA Model
Rules are in force in most State courts
and many Federal Courts. Specifically,
Rule 3.8(d) requires that a criminal
prosecutor ‘‘make timely disclosure to
the defense of all evidence or
information known to the prosecutor
23 Id.
at 677.
States v. Cuffie, 80 F.3d 514, 517–19
(D.C. Cir. 1996).
25 Simmons v. Beard, 581 F.3d 158, 169 (3rd Cir.
2009).
26 Giglio, 405 U.S. at 154–55; United States v.
Edwards, 191 F. Supp. 2d 88, 90 (D.D.C. 2002);
United States v. Buettner-Janusch, 500 F. Supp.
1287, 1288 (S.D.N.Y. 1980).
27 See Charles Alan Wright & Arthur R. Miller,
Federal Practice & Procedure 254 (4th ed. 2009);
United States v. Goldman, 439 F. Supp. 337, 350
(S.D.N.Y. 1977).
28 Morris v. Ylst, 447 F.3d 735, 742 (9th Cir.
2006); U.S. v. NYNEX Corp., 781 F. Supp. 19, 25–
26 (D.D.C. 1991); see Williamson v. Moore, 221 F.3d
1177, 1182 (11th Cir. 2000).
24 United
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that tends to negate the guilt of the
accused or mitigates the offense’’ so that
the defense can make meaningful use of
the evidence and information in making
such decisions as whether to plead
guilty and how to conduct its defense.29
The Supreme Court has also referred
to the status of a U.S. Attorney in the
‘‘Federal system’’ as ‘‘the representative
not of an ordinary party to a
controversy, but of a sovereignty whose
obligation to govern impartially is as
compelling as its obligation to govern at
all; and whose interest, therefore, in a
criminal prosecution is not that it shall
win a case, but that justice shall be
done.’’30 Therefore, both Constitutional
issues and ethical issues must be
considered when a procedure such as
the one enunciated here today is
formulated and adopted.
C. Disclosure in Governmental Civil
Proceedings
Courts have held that the Due Process
Clause does not require application of
Brady in administrative proceedings.31
Nevertheless, some Federal agencies
recently have applied Brady principles
to their civil administrative enforcement
proceedings. For example, the Federal
Energy Regulatory Commission (FERC)
recently issued a policy statement that
provides respondents with access to
certain exculpatory evidence during that
agency’s investigations and
adjudications.32 Under FERC’s
regulations, FERC can conduct either an
informal or formal investigation. The
new FERC Policy Statement provides, in
relevant part that ‘‘[d]uring the course of
an investigation * * *, Enforcement
staff will scrutinize materials it receives
29 See American Bar Association, Model Rules of
Professional Conduct, Rule 3.8, Special
Responsibilities of a Prosecutor, available at
http://www.abanet.org/cpr/mrpc/rule_3_8.html. See
also Formal Opinion 09–454, Prosecutor’s Duty to
Disclose Evidence and Information Favorable to the
Defense, American Bar Association, Standing
Committee on Ethics and Professional
Responsibility, available at http://www.nacdl.org/
public.nsf/whitecollar/ProsecutorialMisconduct/
$FILE/09-454.pdf.
30 Berger v United States, 295 U.S. 78, 88 (1935);
see also Statement of Attorney General Eric Holder
Regarding United States v. Theodore F. Stevens,
available at http://www.justice.gov/opa/pr/2009/
April/09-ag-288.html.
31 Mister Discount Stockbrokers v. SEC, 768 F.2d
875, 878 (7th Cir. 1985) (no right to exculpatory
evidence in National Association of Securities
Dealers (NASD) proceedings which are treated the
same as administrative agency action); Sanford v.
NASD, 30 F. Supp. 2d 1, 22 n.12 (D.D.C. 1998)
(same); NLRB v. Nueva Eng’g, Inc., 761 F.2d 961,
969 (4th Cir. 1985) (‘‘[W] e find Brady inapposite
and hold that the ALJ properly denied Nueva’s
demand for exculpatory materials.’’).
32 See FERC Policy Statement on Disclosure of
Exculpatory Materials, Docket No. PL10–1–000, 129
FERC 61,248 (Dec. 17, 2009) (FERC Policy
Statement), available at http://www.ferc.gov/whatsnew/comm-meet/2009/121709/M-2.pdf.
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from sources other than the
investigative subject(s) for material that
would be required to be disclosed under
Brady. Any such materials or
information that are not known to be in
the subject’s possession shall be
provided to the subject.’’ 33
Similarly, the Securities and
Exchange Commission (SEC) adopted a
rule of practice in 1995 for its civil
enforcement proceedings whereby its
Division of Enforcement shall make
available for inspection and copying
‘‘documents obtained by the Division
prior to the institution of proceedings,
in connection with the investigation
leading to the Division’s
recommendation to institute
proceedings.’’ 34 The SEC rule permits
certain documents to be withheld by the
agency, including those documents that
are privileged, pre-decisional or work
product, a document that would
identify a confidential source, or
documents identified to a hearing
officer as being properly withheld for
good cause.35
However, SEC rule 201.230(b)(2)
specifically states that nothing in the
rule ‘‘authorizes the [SEC’s] Division of
Enforcement in connection with an
enforcement or disciplinary proceeding
to withhold, contrary to the doctrine of
Brady, * * * documents that contain
material exculpatory evidence.’’ 36
Although the SEC has limited the
application of rule 201.230 to require
the ‘‘production of examination and
inspection reports to circumstances
where the Division of Enforcement
intends to introduce the report into
evidence, either in reliance on the
report to prove its case, or to refresh the
recollection of any witness,’’ this
limitation ‘‘does not alter the
requirement that the Division produce
documents containing material
exculpatory evidence as required by
Brady v. Maryland.’’ 37
As with FERC and the SEC, the
Commodity Futures Trading
Commission (CFTC) also provides for
disclosure of certain information during
the ‘‘discovery’’ phase of its formal
adjudications.38 In addition to a
33 See
FERC Policy Statement at paragraph 9.
17 CFR 201.230(a)(1) (2010), available at
http://edocket.access.gpo.gov/cfr_2010/aprqtr/pdf/
17cfr201.230.pdf.
35 17 CFR 201.230(b)(1).
36 17 CFR 201.230(b)(2).
37 See Securities and Exchange Commission,
Explanation and Justification: Adoption of
Amendments to the Rules of Practice and
Delegations of Authority of the Commission, 69 FR
13166, 13170 (Mar. 19, 2004), available at http://
www.sec.gov/rules/final/34-49412.htm.
38 See 17 CFR 10.42 (2010), available at http://
edocket.access.gpo.gov/cfr_2010/aprqtr/pdf/
17cfr10.42.pdf.
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34 See
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prehearing exchange of documents,
identities of witnesses, and an outline of
its case, the CFTC’s Division of
Enforcement ‘‘shall make available for
inspection and copying by the
respondents’’ certain documents.39
These documents include all documents
subpoenaed by the CFTC and all
transcripts of investigative testimony
and exhibits to those transcripts.40
However, the Division of Enforcement
may withhold, for example, the identity
of a confidential source, confidential
investigatory techniques, and other
confidential information, such as trade
secrets.41 Privileged documents and
information may also be withheld by
CFTC’s Division of Enforcement.42
In the case of this Commission, as a
Federal agency engaged in proceedings
to find liability of persons under Federal
laws, whose conduct can lead to civil
penalties and potentially has the reach
of the criminal system, it has been the
Commission’s practice to provide
certain types of information to
respondents. The Commission is
formalizing its practice to ensure
effective and fair enforcement of the
Act.
The Commission recognizes that
Brady was decided in the context of a
criminal proceeding and that its
holding, therefore, does not extend, by
its own terms, to a Federal agency civil
enforcement agency proceeding.
However, the Commission is
empowered (a) To civilly pursue matters
that may have potential criminal
consequences, and (b) to engage
respondents in the enforcement process,
and possibly in litigation if the
Commission and respondents are unable
to reach a mutually acceptable
voluntary conciliation agreement, where
a Court may impose a civil monetary
penalty, injunctive, or other relief. See
2 U.S.C. 437g(a)(6)(A).
The Commission has also entered into
a Memorandum of Understanding with
the Department of Justice (DOJ) whereby
the Commission will refer certain
matters to the DOJ for criminal
prosecution review and whereby DOJ
39 See 17 CFR 10.42(a)(1) & (2); 17 CFR
10.42(b)(1).
40 Id. See also In re First National Monetary Corp.,
Opinion and Order, CFTC No. 79–56, CFTC No. 79–
57 (Nov. 13, 1981) (Any material * * * known to
the Division of Enforcement, or which by the
exercise of due diligence may become known to the
Division, that is arguably exculpatory and material
to guilt or punishment within the meaning of Brady
[and its progeny] should be either provided to
respondent directly, or provided to the [ALJ], for his
determination as to whether it is productible [sic]
or not).
41 17 CFR 10.42(b)(2).
42 17 CFR 10.42(b)(3).
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will refer matters to the Commission.43
Nothing in the procedure adopted
herein is intended to impact in anyway
the Commission’s conduct with respect
to, and relationship with, the DOJ,
including any agreement between the
Commission and the DOJ whereby the
Commission agrees not to disclose
information obtained from the DOJ. The
procedure adopted herein provides for
mandatory withholding of information
by the Office of General Counsel of any
documents or information submitted to
the Commission by the DOJ either
pursuant to an agreement between the
Commission and the DOJ or simply
upon request from the DOJ not to
disclose the information.44 Moreover,
the procedure adopted herein protects
from disclosure not only the
information submitted by the DOJ but
also any information that was derived
from such information, including all
separate documents quoting,
summarizing, or otherwise using
information provided by the DOJ.45
Accordingly, the Constitutional and
ethical principles of fairness and due
process in Brady, as well as the
procedures adopted by other Federal
agencies, inform the Commission’s
adoption of the procedure announced
today in its civil administrative
enforcement process.
In summary, while the Commission
does not believe that the Constitution
requires the agency to institute a
procedure requiring disclosure of
documents and information, including
exculpatory information, to respondents
in its civil enforcement process, the
Commission’s enforcement proceedings
may, in some instances, inform
potential or concurrent criminal
proceedings. Accordingly, adopting a
formal internal procedure requiring
disclosure of information to respondents
will (1) Eliminate uncertainty regarding
the Commission’s position on this issue,
(2) serve the Commission’s goal of
providing fairness to respondents, and
(3) set forth a written procedural
framework within which disclosures are
made.
III. Current Disclosure Process
Before the Commission may
determine that there is probable cause to
believe a violation of the Act has
occurred or is about to occur, the Act
permits respondents to present directly
to the Commission their interests and
positions on the matter under review.
43 See Department of Justice and Federal Election
Commission, Memorandum of Understanding, 43 F
5441 (Feb. 8, 1978).
44 See Updated Formal Procedure at paragraph
(b)(1)(v), below.
45 Id.
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The Commission’s General Counsel
shall notify respondents prior to any
recommendation to the Commission by
the General Counsel to proceed to a vote
on probable cause.46 Included in this
notification is a written brief stating the
position of the General Counsel on the
legal and factual issues of the case to
which respondents may reply.47 This
allows the Commission to be informed
not only by the recommendations of its
General Counsel, but also by the factual
presentations and legal arguments of
respondents. By requirement of the Act,
or by its discretion, the Commission has
similar procedures at various stages of
the enforcement process to keep the
Commissioners informed both by its
staff and by respondents.
In addition, while the Commission
may attempt to conciliate matters with
respondents at any time, the Act
requires the Commission to attempt
conciliation after it finds probable
cause.48 If the Commission determines
that there is probable cause, the Act
requires that, for a period of at least 30
day (or at least 15 days, if the probable
cause determination occurs within 45
days of an election), the Commission
must attempt to correct or prevent the
violation through conference,
conciliation, and persuasion.49
The General Counsel provides a
probable cause brief to respondents
presenting OGC’s analysis of the
information and may address any
available exculpatory evidence. The
Commission’s current practice at the
probable cause stage has generally been
to provide respondents, upon request,
with information cited or relied upon
(whether or not cited) in the General
Counsel’s probable cause brief. Where
possible, this has included documents
containing the information upon which
OGC is relying to support its
recommendation to the Commission
that there is probable cause to believe a
violation of the Act has occurred. This
production of documents is subject to
all applicable privileges and
confidentiality considerations,
including the confidentiality provisions
of the Act. Where such considerations
apply, OGC has generally provided only
the relevant information derived from
the document, and not the document
itself. Examples of the types of
documents OGC has provided at this
stage are deposition transcripts,
responses to formal discovery, and
documents obtained in response to
requests for documents. In instances
46 See
2 U.S.C. 437g(a)(3).
2 U.S.C. 437g(a)(3); see also 11 CFR 111.16.
48 See 2 U.S.C. 437g(a)(4).
49 Id.
47 See
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where OGC obtains factual information
from a source other than the respondent
that tends to exculpate the respondent,
OGC may note the existence of the
information in its brief, particularly if
OGC does not know whether a
respondent is already aware of the
information.50 In instances where OGC
provides mitigating or exculpatory
information, OGC provides any
documents cited to in connection with
that information, such production is
also subject to the same privilege and
confidentiality concerns noted above.
In two limited instances, OGC may
provide information to respondents
earlier than the probable cause stage in
the enforcement process. First, pursuant
to the Commission’s Statement of Policy
Regarding Deposition Transcriptions in
Nonpublic Investigations, all deponents,
including respondent deponents, may
obtain a copy of the transcript of their
own deposition, including any exhibits
that may have been obtained from
sources other than the respondent,
provided there is no good cause to limit
the deponent’s access to the transcript.51
Second, OGC may share information,
including documents, with respondents
during the post-investigative preprobable cause conciliation process to
assist in explaining the factual basis for
a violation. That information may
include documents not already in the
respondent’s possession. This practice
is used solely for the purpose of
facilitating conciliation.
As the current practice has
demonstrated, the Commission’s
probable cause considerations and
subsequent conciliation efforts are
furthered when, in presenting their
respective positions, respondents have
the greatest practicable access to
documents and information gathered by
the agency, including certain
information that might be favorable to
the respondent. This allows both the
Commission’s Office of General Counsel
and the respondents that are under
investigation to present fully informed
submissions and frame legal issues for
the Commission’s consideration.
At the same time, however, the Act
and other laws restrict information that
the Commission may make public
without the consent of persons under
50 When advising the Commission on whether
OGC intends either to proceed with its probable
cause recommendation or to withdraw the
recommendation, OGC will also provide and
discuss the potentially exculpatory evidence, as
well as any available mitigating evidence. See 11
CFR 111.16(d).
51 See Statement of Policy Regarding Deposition
Transcriptions in Nonpublic Investigations, 68 FR
50688 (Aug. 22, 2003), available at http://
www.fec.gov/agenda/agendas2003/notice2003-15/
fr68n163p50688.pdf.
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34989
investigation.52 Investigations that
involve multiple respondents, each of
whom may be at different stages of the
enforcement process, raise questions as
to what documents and information the
Commission may disclose to any given
respondent before determining probable
cause.
The procedure adopted herein is not
intended to expand the disclosure of
information regarding a co-respondent
as to any such information that is
subject to existing confidentiality
requirements under the Act. In order to
reconcile the Commission’s interests in
permitting respondents to present fully
their positions without compromising
the Commission’s confidentiality
obligations, the Commission is
formalizing its procedure. This agency
procedure clarifies how the Commission
will, consistent with the confidentiality
provisions of 2 U.S.C. 437g(A)(12),
enhance its enforcement process by
permitting increased access to
documents and information held by the
Commission.
This procedure will allow efficient,
fair and just resolution of issues
regarding disclosure of exculpatory
information and avoid unnecessary
consumption of respondent and
Commission staff resources in future
proceedings.
IV. The Updated Formal Procedure
The Commission is formalizing its
agency procedure to provide
respondents in enforcement proceedings
with relevant information ascertained
by the Commission as the result of an
investigation. The Commission believes
that, while not mandated by the
Constitution, the principle of Brady, and
its judicial progeny, should apply
following investigations conducted
under Section 437g of the Act and
Subpart A of Part 111 of the
Commission’s regulations.53
The Commission believes that
formalizing the procedure will promote
fairness in the Commission’s Section
437g enforcement process. The
Commission also believes the procedure
articulated in this Notice will promote
administrative efficiency and certainty,
and will contribute to the Commission’s
goal of open, fair and just investigations
and enforcement proceedings.
For purposes of this procedure, the
term ‘‘documents’’ includes writings,
drawings, graphs, charts, photographs,
recordings and other data compilations,
including data stored by computer, from
which information can be obtained.
52 See,
53 See
e.g., 2 U.S.C. 437g(a)(4)(B)(i) and (a)(12).
generally 2 U.S.C. 437g and 11 CFR part
111.
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For purposes of this procedure, the
term ‘‘exculpatory information’’ means
information gathered by the Office of
General Counsel in its investigation, not
reasonably knowable by the respondent,
that is relevant to a possible violation of
the Act or the Commission’s regulations,
under investigation by the Commission
and that may tend to favor the
respondent in defense of violations
alleged or which would be relevant to
the mitigation of the amount of any civil
penalty resulting from a finding of such
a violation by a court.
The procedure is as follows:
(a) Documents To Be Produced or Made
Available
jlentini on DSK4TPTVN1PROD with NOTICES
(1) Subject to paragraphs (b) through
(e) of this procedure, and unless
otherwise directed by the Commission,
by an affirmative vote of four or more
Commissioners,54 the Office of General
Counsel shall make available to a
respondent all relevant documents
gathered by the Office of General
Counsel in its investigation, not
publicly available and not already in the
possession of the respondent, in
connection with its investigation of
allegations against the respondent. This
includes any documents that contain
exculpatory information, as defined
herein. This shall not include any
documents created internally by a
Commissioner or by a member of a
Commissioner’s staff. This shall be done
either by producing copies in electronic
format or permitting inspection and
copying of such documents. The
documents covered by this procedure
shall include:
(i) Documents, not in possession of a
respondent, turned over in response to
any subpoenas or other requests, written
or otherwise;
(ii) All deposition transcripts and
deposition transcript exhibits; and
(iii) Any other documents, not
otherwise publicly available and not in
possession of a respondent, gathered by
the Commission from sources outside
the Commission.
(2) Nothing in this paragraph (a) shall
limit the authority of the Commission,
by an affirmative vote of four or more
Commissioners, to make available or
withhold any other document, or shall
limit the capacity of a respondent to
seek access to, or production of, a
54 In any instance in which the Office of General
Counsel has concerns that disclosure of information
pursuant to this procedure would lead to a result
that is materially inconsistent with either the
Commission’s administrative responsibilities or
with the promotion of fairness and efficiency in the
Commission’s enforcement process, the Office of
General Counsel may seek formal guidance from the
Commission on how it should proceed.
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document through timely written
requests to the Commission subsequent
to the production of documents
pursuant to paragraph (d) below. If
respondent submits such a written
request, respondent must, if requested
to do so by the Commission, sign a
tolling agreement for the time necessary
to resolve the request.
(3) Nothing in this procedure requires
the Office of General Counsel to conduct
any search for materials other than those
it receives in the course of its
investigatory activities. This procedure
does not require staff to conduct any
search for exculpatory materials that
may be found in the offices of other
agencies or elsewhere.
(b) Documents That May Be Withheld
(1) Unless otherwise determined by
the Commission, as provided in
subparagraph (2) below, the Office of
General Counsel shall withhold a
document or a category of documents
from a respondent if:
(i) The document contains privileged
information, such as, but not limited to,
attorney-client communications,
attorney-work product, staff-work
product or work product subject to the
deliberative process privilege; provided,
however, if the document contains only
a portion of material that should not be
disclosed, if possible to do so
effectively, the Office of General
Counsel shall excise or redact from such
document any information that prevents
disclosure if the remaining portion is
informative and otherwise qualifies for
disclosure as provided herein, prior to
disclosing the document or information
contained therein;
(ii) The document or category of
documents is determined by the General
Counsel to be not relevant to the subject
matter of the proceeding;
(iii) The Commission is prevented by
law or regulation from disclosing the
information or documents, including,
under certain circumstances,
information obtained from, or regarding,
co-respondents; 55
(iv) The document contains
information only a portion of which
prevents disclosure as provided herein,
and that portion cannot be excised or
redacted without affecting the main
import of the document; or
(v) The Commission obtained the
information or documents from the
Department of Justice or another
government entity, either pursuant to a
written agreement with the Department
55 See paragraph (e) of this procedure addresses
issues regarding documents and information that
may be subject to confidentiality pursuant to
sections 437g(a)(4)(B)(i) and 437g(a)(12) of the Act.
2 U.S.C. 437g(a)(4)(B)(i) and 437g(a)(12).
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of Justice, or the other government
entity, not to disclose the information,
documents or category of documents or
upon written request from the
Department of Justice, or the other
government entity. Withholding any
such information obtained from the
Department of Justice also includes
withholding any information that was
derived from such information,
including all separate documents
quoting, summarizing, or otherwise
using information provided by the other
government entity.
(2) For any document withheld by the
General Counsel pursuant to
subparagraphs (1)(i)–(1)(iv) above, the
Commission may, pursuant to a timely
written request by the respondent or
otherwise, consider whether to make
available such document and, after
consideration of relevant law and
regulation, by an affirmative vote of four
or more Commissioners, may determine,
consistent with relevant law and
regulation, whether or not it is
appropriate to produce such document.
If respondent submits such a written
request, it must be within 15 days of the
Commission’s production of documents
and respondent must, if requested to do
so by the Commission, sign a tolling
agreement for the time necessary to
resolve the request.
(3) For any document withheld by the
General Counsel pursuant to a written
agreement with, or written request from,
the Department of Justice or the other
government entity under subparagraph
(1)(v) above, the General Counsel shall
provide a report to the Commission
identifying the documents and
information that has been withheld and
providing the Commission with a copy
of the written agreement with, or
request from, the Department of Justice
or the other government entity.
(c) Withheld Document List
(1) Within ten business days of receipt
of documents disclosed pursuant to
paragraph (d) below, a respondent may
request in writing that the Commission
direct the General Counsel to produce to
the respondent a list of documents or
categories of documents withheld
pursuant to paragraph (b)(1) of this
procedure. If respondent submits such a
written request, respondent must sign a
tolling agreement for the time necessary,
not to exceed 60 days, for the General
Counsel to provide the list of
documents, unless the Commission, by
an affirmative vote of four or more
Commissioners, determines that a
tolling agreement is not required.
Requests for a list of documents or
categories of documents shall be
granted, unless the Commission, by an
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affirmative vote of four or more
Commissioners, denies the request, in
whole or in part. Once the Commission
has voted upon the written request,
respondent may not seek
reconsideration of that decision.
(2) When similar documents are
withheld pursuant to paragraph (b)(1),
those documents may be identified by
category instead of by individual
document.
jlentini on DSK4TPTVN1PROD with NOTICES
(d) Timing of Production or Inspection
and Copying
(1) The disclosure of documents and
information referenced herein shall be
made pursuant to a timely written
request by the respondent filed within
fifteen days of the dates specified in
subparagraphs (i) and (ii) below, and
subject to paragraph (e), or unless
otherwise determined by the
Commission by an affirmative vote of
four or more Commissioners. The
General Counsel shall produce in
electronic format, or commence making
documents available to a respondent for
inspection and copying pursuant to this
procedure, at the earlier of the
following:
(i) The date of the General Counsel’s
notification to a respondent of a
recommendation to the Commission to
proceed to a vote on probable cause; or
(ii) No later than seven days after
certification of a vote by the
Commission to conciliate with a
respondent.
(e) Issues Respecting Documents
Provided by, or Relating to, Corespondents
(1) If there is more than one
respondent that is under investigation
in the same matter, or in related matters,
before the General Counsel may produce
documents, other than exculpatory
information or documents cited or
relied on in the General Counsel’s brief
that accompanies its notice of a
recommendation to vote on probable
cause, to one co-respondent that either
(a) have been provided to the
Commission by another co-respondent
or (b) that relate to another corespondent, the General Counsel must
obtain a confidentiality waiver from the
co-respondent who provided the
document or about whom the document
relates. Additionally, the respondent
receiving such documents may be
required to sign a nondisclosure
agreement to keep confidential any
document or information it obtains from
the Commission.
(2) If the co-respondent who provided
the document or about whom the
document relates does not agree to
provide a confidentiality waiver, the
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General Counsel shall, if it is possible to
do so effectively, in accordance with 2
U.S.C. 437g(a)(4)(B)(i) and 437g(a)(12),
summarize or redact those portions of
the document or documents that are
subject to confidentiality under the Act,
or are determined to be in the category
of documents to be withheld under
paragraph (b) in order to remove that
portion of material that may not be
disclosed.
(3) If the co-respondent who provided
the document or about whom the
document relates does not agree to
provide a confidentiality waiver and it
is not possible to effectively summarize
or redact those portions of the document
or documents that are subject to
confidentiality, the General Counsel
shall seek direction from the
Commission, by an affirmative vote of
four or more Commissioners, regarding
how to balance the competing concerns
of disclosure and confidentiality. In any
event, the General Counsel shall
produce complete or appropriately
redacted copies of those documents
cited or relied on in the brief that
accompanies its notice of a
recommendation to vote on probable
cause, whether or not the documents
have been specifically identified in the
brief.
(4) If the confidentiality issue cannot
be resolved with respect to a corespondent (e.g., lack of waiver,
ineffective redaction, etc.), the General
Counsel may, in an appropriate case
make a recommendation to the
Commission for segregation of the
matters under review.
(5) If any document or information
provided to the Commission by a one
co-respondent contains exculpatory
information, or is cited or relied on in
the General Counsel’s brief that
accompanies its notice of a
recommendation to vote on probable
cause for another co-respondent, that
information or document will be
provided to the other co-respondent,
which shall be subject to the same
redactions described in paragraph
(b)(1)(i).
(6) Before disclosing any portion of
the document that raises an unresolved
confidentiality issue, the General
Counsel shall seek a determination by
the Commission, by an affirmative vote
of four or more Commissioners, that
disclosure of a document containing
exculpatory information (redacted,
summarized, or in any other way
altered) conforms to the confidentiality
provisions of 2 U.S.C. 437g(a)(4)(B)(i)
and 437g(a)(12).
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34991
(f) Place of Inspection and Copying
Costs and Procedures
(1) Documents subject to inspection
and copying pursuant to this procedure
shall be made available to the
respondent for inspection and copying
at the Commission’s office, or at such
other place as the Commission, in
writing, may agree. A respondent shall
not be given custody of the documents
or leave to remove the documents from
the Commission’s offices pursuant to
the requirements of this procedure
unless formal written approval is
provided by an affirmative vote of four
or more Commissioners.
(2) The respondent may obtain a
photocopy of any documents made
available for inspection. The respondent
is responsible for all costs related to
photocopying of any documents.
(g) Continuing Obligation To Produce
During Conciliation
(1) If, prior to the completion of an
investigation, the Commission votes to
enter into conciliation, the General
Counsel shall take reasonable and
appropriate steps to limit any further
formal investigation related to that
respondent, so long as the respondent
enters into a tolling agreement of the
applicable statute of limitation. If there
is no such tolling agreement, the formal
investigation and conciliation may take
place simultaneously. The tolling
agreement must have a specific time for
its duration approved by the
Commission, by an affirmative vote of
four or more Commissioners, and shall
not be open-ended. If there is more than
one respondent under investigation in
the same matter, or in related matters,
and the Commission votes to enter into
conciliation with one or more
respondents prior to the completion of
a formal investigation, the General
Counsel shall take reasonable and
appropriate steps to limit any further
formal investigation as to those
respondents in conciliation, so long as
the respondents enter into a tolling
agreement of the applicable statute of
limitation. If the Commission receives
documents in the course of the formal
investigation as to respondents not in
conciliation that would otherwise be
required to be produced under this
procedure during such investigation, the
Commission shall promptly produce
them to the respondent in conciliation
pursuant to this procedure.
(2) If the Commission receives
documents during such conciliation,
from whatever source, the General
Counsel shall within a reasonable
period of time inform the respondent of
any documents obtained that would
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otherwise be required to be produced
under this procedure, and as to such
documents, the General Counsel shall
timely produce them to the respondent,
consistent with the statutory
confidentiality provision preventing
disclosure of any information derived in
connection with conciliation attempts. 2
U.S.C. 437g(a)(4)(B).
V. Failure To Produce Documents as
Required Herein—Remedies and
Consequences
In the event that a document required
to be made available to a respondent
pursuant to this procedure is not made
available, no reconsideration by the
Commission is required, unless the
Commission concludes, by an
affirmative vote of four or more
Commissioners, that there is a
reasonable likelihood that the decision
of the Commission or result of the
conciliation would have been different
than the one made had such disclosure
taken place. Any failure by the
Commission to make a document
available does not create any rights for
a respondent to seek judicial review, nor
any right for a defendant in litigation to
request or receive a dismissal or remand
or any other judicial remedy. A
respondent may not request
reconsideration by the Commission
more than ten days after the conclusion
of conciliation.
VI. Consequences of Disclosure
Disclosure of documents pursuant to
this procedure is not an admission by
the Commission that the information or
document exculpates or mitigates
respondent’s liability for potential
violations of the Act.
jlentini on DSK4TPTVN1PROD with NOTICES
VII. Applicability During Civil
Litigation
In any civil litigation with the
respondent, the discovery rules of the
court in which the matter is pending,
and any order made by that court, shall
govern the obligations of the
Commission. The intention of the
Commission is for this procedure to
serve as internal guidance only and the
procedure adopted herein does not
create any rights that are reviewable or
enforceable in any court.
VIII. Annual Review
No later than June 1 of each year, the
General Counsel shall prepare and
distribute to the Commission a report
describing the application of the
procedure adopted herein over the
previous year. This annual report shall
include the General Counsel’s
assessment of whether, and to what
extent, the procedure has provided an
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appropriate balance between the
Commission’s interest in providing
respondents with relevant documents
and information and the confidentiality
provisions of the Act, consistent with
the Commission’s goal of maintaining
open, fair and just investigations and
enforcement proceedings, along with
any recommendations from the General
Counsel regarding how the Commission
could better accomplish that goal.
IX. Conclusion
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.
This notice establishes an internal
agency procedure for disclosing to
respondents documents and information
acquired by the agency during its
investigations in the enforcement
process. This procedure sets forth the
Commission’s intentions concerning the
exercise of its discretion in its
enforcement program. However, the
Commission retains that discretion and
will exercise it as appropriate with
respect to the facts and circumstances of
each enforcement matter it considers.
Consequently, this procedure does not
bind the Commission or any member of
the general public, not does it create any
rights for respondents or third parties.
As such, this notice does not constitute
an agency regulation requiring notice of
proposed rulemaking, opportunities for
public participation, prior publication,
and delay effective under 5 U.S.C. 553
of the Administrative Procedure Act
(APA). The provisions of the Regulatory
Flexibility Act, 5 U.S.C. 605(b), which
apply when notice and comment are
required by the APA or another statute,
are not applicable.
On behalf of the Commission.
Dated: June 2, 2011.
Caroline C. Hunter,
Vice Chair, Federal Election Commission.
[FR Doc. 2011–14096 Filed 6–14–11; 8:45 am]
BILLING CODE 6715–01–P
FEDERAL MARITIME COMMISSION
Notice of Agreements Filed
The Commission hereby gives notice
of the filing of the following agreements
under the Shipping Act of 1984.
Interested parties may submit comments
on the agreements to the Secretary,
Federal Maritime Commission,
Washington, DC 20573, within ten days
of the date this notice appears in the
Federal Register. Copies of the
agreements are available through the
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Sfmt 4703
Commission’s Web site (http://
www.fmc.gov) or by contacting the
Office of Agreements at (202) 523–5793
or tradeanalysis@fmc.gov.
Agreement No.: 012093–001.
Title: CSAV/K-Line Space Charter and
Sailing Agreement.
Parties: Compania Sud Americana de
Vapores and Kawasaki Kisen Kaisha,
Ltd.
Filing Parties: Walter H. Lion, Esq.;
McLaughlin & Stern, LLP; 260 Madison
Avenue; New York, NY 10016.
Synopsis: The amendment adds
Greece to the geographic scope of the
Agreement and changes the Agreement’s
name.
Agreement No.: 201211.
Title: Marine Terminal Lease and
Operating Agreement between Broward
County and H.T. Shipping, Inc., and
Hybur Ltd.
Parties: Broward County; H.T.
Shipping, Inc.; and Hybur Ltd.
Filing Party: Candace J. Running;
Broward County Board of County
Commissioners; Office of the County
Attorney; 1850 Eller Drive, Suite 502;
Fort Lauderdale, FL 33316.
Synopsis: The agreement provides for
the lease and operation of terminal
facilities at Port Everglades, Florida.
By Order of the Federal Maritime
Commission.
Dated: June 10, 2011.
Rachel E. Dickon,
Assistant Secretary.
[FR Doc. 2011–14836 Filed 6–14–11; 8:45 am]
BILLING CODE 6730–01–P
FEDERAL MARITIME COMMISSION
Ocean Transportation Intermediary
License; Applicants
Notice is hereby given that the
following applicants have filed with the
Federal Maritime Commission an
application for a license as a NonVessel-Operating Common Carrier
(NVO) and/or Ocean Freight Forwarder
(OFF)—Ocean Transportation
Intermediary (OTI) pursuant to section
19 of the Shipping Act of 1984 as
amended (46 U.S.C. chapter 409 and 46
CFR 515). Notice is also hereby given of
the filing of applications to amend an
existing OTI license or the Qualifying
Individual (QI) for a license.
Interested persons may contact the
Office of Transportation Intermediaries,
Federal Maritime Commission,
Washington, DC 20573, by telephone at
(202) 523–5843 or by e-mail at
OTI@fmc.gov.
Allround Forwarding Co., Inc. (NVO &
OFF), 134 West 26th Street, New
E:\FR\FM\15JNN1.SGM
15JNN1
Agencies
[Federal Register Volume 76, Number 115 (Wednesday, June 15, 2011)]
[Notices]
[Pages 34986-34992]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-14096]
[[Page 34986]]
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FEDERAL ELECTION COMMISSION
[Notice 2011-06]
Agency Procedure for Disclosure of Documents and Information in
the Enforcement Process
AGENCY: Federal Election Commission.
ACTION: Notice of Agency Procedure.
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SUMMARY: The Federal Election Commission (``Commission'') is
establishing an agency procedure to formally define the scope of
documents that will be provided to respondents by the agency, and to
formalize the agency's process of disclosing such documents, during the
Commission's investigation in enforcement matters brought under the
Federal Election Campaign Act of 1971, as amended (the Act).
DATES: Effective June 30, 2011.
FOR FURTHER INFORMATION CONTACT: William A. Powers or Ana J. Pena-
Wallace, Attorneys, 999 E Street, NW., Washington, DC 20463, (202) 694-
1650 or (800) 424-9530.
SUPPLEMENTARY INFORMATION:
I. Recent Changes to the Commission's Enforcement Procedures
The Commission has, in recent years, adopted several changes to its
enforcement process in an effort to provide complainants, respondents
and the public with greater transparency with respect to the
Commission's process.
On May 1, 2003, the Commission published a Notice of Public Hearing
and Request for Public Comment concerning its enforcement
procedures.\1\ The Commission received written comments from the
public, many of which urged increased transparency in Commission
procedures and expanded opportunities to contest allegations.\2\ On
June 11, 2003, the Commission held an open hearing on its enforcement
procedures during which the Commission considered written comments
received and oral testimony from several witnesses. In response to
issues raised in written comments and at the hearing, the Commission
issued several new agency procedures.\3\
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\1\ See Enforcement Procedures, 68 FR 23311 (May 1, 2003),
available at http://www.fec.gov/agenda/agendas2003/notice2003-09/fr68n084p23311.pdf.
\2\ Comments and statements for the record are available at
http://www.fec.gov/agenda/agendas2003/notice2003-09/comments.shtml.
\3\ See Statement of Policy Regarding Deposition Transcripts in
Nonpublic Investigations, 68 FR 50688 (Aug. 22, 2003), available at
http://www.fec.gov/agenda/agendas2003/notice2003-15/fr68n163p50688.pdf; Statement of Policy Regarding Treasurers Subject
to Enforcement Proceedings, 70 FR 3 (Jan. 3, 2005), available at
http://www.fec.gov/law/policy/2004/notice2004-20.pdf; Procedural
Rules for Probable Cause Hearings, 72 FR 64919 (Nov. 19, 2007),
available at http://www.fec.gov/law/cfr/ej_compilation/2007/notice_2007-21.pdf.
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On December 8, 2008, the Commission issued a Notice of Public
Hearing and Request for Public Comment regarding the compliance and
enforcement aspects of its agency procedures.\4\ There were numerous
written comments filed in response to the Notice and on January 14-15,
2009, the Commission received testimony at a public hearing.\5\
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\4\ See Agency Procedures, 73 FR 74495 (Dec. 8, 2008), available
at http://www.fec.gov/law/policy/enforcement/notice_2008-13.pdf.
\5\ The comments received by the Commission, as well as the
transcript of the hearing are available at http://www.fec.gov/law/policy/enforcement/publichearing011409.shtml.
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Some commenters proposed alternative procedures with respect to
information and documents in the possession of the Commission. One
commenter recommended instituting a program whereby potential
respondents in internally generated matters \6\ would be given a
written summary of the matter and an opportunity to respond in writing
before the Commission makes a reason to believe (RTB) finding and to
provide earlier notice to respondents about the Office of General
Counsel's (OGC) recommendation to the Commission.\7\ Other commenters
urged the Commission to adopt procedures to provide respondents with
the opportunity to review and respond to any adverse course of action
recommended by the Commission's Office of General Counsel before the
Commission considers such recommendation.\8\ Still others requested
even more general access by respondents to documents and information
held by the Commission.\9\
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\6\ Enforcement matters may be internally generated based on
information ascertained by the Commission in the normal course of
carrying out its supervisory responsibilities. See 2 U.S.C. 437g.
These non-complaint generated matters can arise from internal
referrals to the Office of General Counsel from the Commission's
Reports Analysis Division or Audit Division.
\7\ See Comment of Scott E. Thomas dated January 5, 2009,
available at http://www.fec.gov/law/policy/enforcement/2009/comments/comm15.pdf.
\8\ See Comments of Perkins Coie LLP Political Law Group dated
January 5, 2009, available at http://www.fec.gov/law/policy/enforcement/2009/comments/comm25.pdf.
\9\ See Comments of Election Law and Government Ethics Practice
Group of Wiley Rein LLP dated January 5, 2009, available at http;//
www.fec.gov/law/policy/enforcement/2009/comments/comm33.pdf;
Comments of Perkins Coie LLP Political Law Group dated January 5,
2009, available at http://www.fec.gov/law/policy/enforcement/2009/comments/comm25.pdf; Comments of Laurence E. Gold dated January 5,
2009, available at http://www.fec.gov/law/policy/enforcement/2009/comments/comm20.pdf; Comments of Robert K, Kelner dated January 5,
2009, available at http://www.fec.gov/law/policy/enforcement/2009/comments/comm10.pdf.
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The Commission has since updated and augmented several of its
procedures including the adoption of: (1) A pilot program providing
opportunity to persons requesting an advisory opinion to appear before
the Commission to answer questions,\10\ (2) a pilot program providing
audited committees with an opportunity to request a hearing before the
Commission prior to the Commission's adoption of a Final Audit
Report,\11\ and (3) a procedure providing respondents with notice of a
non-complaint generated referral \12\ and an opportunity to respond
prior to the Commission's consideration of whether it has reason to
believe that a violation has occurred.\13\ Further, in December 2009,
the Commission issued a Guidebook for Complainants and Respondents on
the FEC Enforcement Process, which provides a step-by-step guide to
assist and educate complainants, respondents and the public concerning
the Commission enforcement process.\14\
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\10\ See Advisory Opinion Procedures, 74 FR 32160 (July 7,
2009), available at http://www.fec.gov/law/cfr/ej_compilation/2009/notice_2009-11.pdf.
\11\ See Procedural Rules for Audit Hearings, 74 FR 33140 (July
10, 2009), available at http://www.fec.gov/law/cfr/ej_compilation/2009/notice_2009-12.pdf.
\12\ Non-complaint generated referrals, also referred to as
``internally generated matters,'' are based on information
ascertained by the Commission in the normal course of carrying out
its supervisory responsibilities. See 2 U.S.C. 437g and note 6
above.
\13\ See Procedural Rule for Notice to Respondents in Non-
Complaint Generated Matters, 74 FR 38617 (August 4, 2009), available
at http://www.fec.gov/law/cfr/ej_compilation/2009/notice_2009-18.pdf.
\14\ This Guidebook is available at http://www.fec.gov/em/respondent_guide.pdf.
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The procedure set forth herein formalizes the Commission's policy
on disclosure to respondents of relevant information gathered by the
Commission in the investigative stage of its enforcement proceedings.
II. Disclosure of Exculpatory Information
A. Criminal Proceedings: The Constitutional Obligation Under Brady--the
Government's Duty To Disclose
One issue that must inform the Commission in its consideration of
any procedure regarding the disclosure of documents and information to
respondents in the enforcement process is whether, and to what extent,
there are relevant requirements or constraints imposed by the United
States Constitution. The seminal Supreme Court case involving the
Constitutional
[[Page 34987]]
parameters required by, and imposed upon, the government, in the
context of criminal proceedings, is Brady v. Maryland.\15\ Brady held
that the Due Process Clause of the Fifth Amendment to the United States
Constitution requires the government to provide criminal defendants
with exculpatory evidence--i.e., ``evidence favorable to an accused,''
that is ``material to guilt or punishment''--known to the government
but unknown to the defendant.
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\15\ Brady v. Maryland, 373 U.S. 83, 87-88 (1963) (Brady).
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As noted, the Supreme Court in Brady held that the Due Process
Clause requires the government to provide criminal defendants with
exculpatory or potentially exculpatory evidence that is ``material to
guilt or punishment.'' ``The rationale underlying Brady is not to
supply a defendant with all the evidence in the Government's possession
which might conceivably assist in the preparation of his defense, but
to assure that the defendant will not be denied access to exculpatory
evidence known only to the Government.'' \16\ Brady is a rule of
disclosure, not of discovery.\17\ Therefore, Brady obligations apply
even when a defendant does not request the evidence.\18\ The
obligations also apply regardless of the good faith of the
prosecutor.\19\ However, no constitutional duty exists under Brady to
provide evidence already in the defendant's possession or which can be
obtained with reasonable diligence.\20\
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\16\ United States v. LeRoy, 687 F.2d 610, 619 (2d Cir. 1983)
(citations omitted).
\17\ See United States v. Bagley, 473 U.S. 667, 675 n.7 (1985)
(Bagley).
\18\ See United States v. Agurs, 427 U.S. 97, 107-10 (1976).
\19\ Brady, 373 U.S. at 87.
\20\ See, e.g., United States v. Meros, 866 F.2d 1304, 1308
(11th Cir 1989); Hoke v. Netherland, 92 F.3d 1350, 1355-56 (4th Cir.
1996); United States v. Beaver, 524 F.2d 963, 966 (5th Cir. 1975).
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In Giglio v. United States, 405 U.S. 150, the Supreme Court went
one step further by requiring disclosure in criminal proceedings
``[w]hen the `reliability of a particular witness may well be
determinative of guilt or innocence,' '' and the prosecution has
evidence that impeaches that witness' testimony.\21\ ``Such
[impeachment] evidence is `evidence favorable to an accused' so that if
disclosed and used effectively, it may make the difference between
conviction and acquittal.'' \22\ For example, courts have held that
impeachment evidence for a key testifying witness includes but is not
limited to the following: Prior statements by a witness that are
materially inconsistent with the witness's trial testimony; \23\ a
conviction of perjury; \24\ prosecutorial intimidation of a witness;
\25\ and plea bargains and informal statements by the prosecution that
a witness would not be prosecuted in exchange for his testimony.\26\
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\21\ Giglio v. United States, 405 U.S. 150, 154-55 (1972)
(Giglio).
\22\ Bagley, 473 U.S. at 676 (quoting Brady, 373 U.S. at 87).
\23\ Id. at 677.
\24\ United States v. Cuffie, 80 F.3d 514, 517-19 (D.C. Cir.
1996).
\25\ Simmons v. Beard, 581 F.3d 158, 169 (3rd Cir. 2009).
\26\ Giglio, 405 U.S. at 154-55; United States v. Edwards, 191
F. Supp. 2d 88, 90 (D.D.C. 2002); United States v. Buettner-Janusch,
500 F. Supp. 1287, 1288 (S.D.N.Y. 1980).
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Because Brady disclosure in criminal proceedings is required under
the Due Process Clause, legal privileges against discovery such as
attorney-client, work-product, or deliberative process do not allow the
government in criminal proceedings to avoid disclosure on these
grounds.\27\ However, courts have recognized that Brady does not apply
to attorney strategies, legal theories, and evaluations of evidence
because they are not ``evidence.'' \28\
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\27\ See Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure 254 (4th ed. 2009); United States v. Goldman,
439 F. Supp. 337, 350 (S.D.N.Y. 1977).
\28\ Morris v. Ylst, 447 F.3d 735, 742 (9th Cir. 2006); U.S. v.
NYNEX Corp., 781 F. Supp. 19, 25-26 (D.D.C. 1991); see Williamson v.
Moore, 221 F.3d 1177, 1182 (11th Cir. 2000).
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B. The Legal, Professional, and Ethical Duties To Disclose--the
Lawyer's Independent Obligations in Criminal Proceeding
In addition to, and quite separate from, the Constitutional
requirements in criminal cases, there is broad acceptance in the legal
and judicial professions that there is also an ethical obligation to
provide exculpatory or incriminating information to respondents and
litigants that, if not provided, may negatively impact the ability of a
respondent or litigant to obtain a just result through a fair and
impartial proceeding with the government.
For example, Rule 3.8(d) of the American Bar Association's Model
Rules of Professional Conduct (ABA Model Rules), imposes an ethical
duty on criminal prosecutors that is separate and independent from the
Constitutional disclosure obligations addressed in Brady. The ABA Model
Rules are in force in most State courts and many Federal Courts.
Specifically, Rule 3.8(d) requires that a criminal prosecutor ``make
timely disclosure to the defense of all evidence or information known
to the prosecutor that tends to negate the guilt of the accused or
mitigates the offense'' so that the defense can make meaningful use of
the evidence and information in making such decisions as whether to
plead guilty and how to conduct its defense.\29\
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\29\ See American Bar Association, Model Rules of Professional
Conduct, Rule 3.8, Special Responsibilities of a Prosecutor,
available at http://www.abanet.org/cpr/mrpc/rule_3_8.html. See
also Formal Opinion 09-454, Prosecutor's Duty to Disclose Evidence
and Information Favorable to the Defense, American Bar Association,
Standing Committee on Ethics and Professional Responsibility,
available at http://www.nacdl.org/public.nsf/whitecollar/
ProsecutorialMisconduct/$FILE/09-454.pdf.
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The Supreme Court has also referred to the status of a U.S.
Attorney in the ``Federal system'' as ``the representative not of an
ordinary party to a controversy, but of a sovereignty whose obligation
to govern impartially is as compelling as its obligation to govern at
all; and whose interest, therefore, in a criminal prosecution is not
that it shall win a case, but that justice shall be done.''\30\
Therefore, both Constitutional issues and ethical issues must be
considered when a procedure such as the one enunciated here today is
formulated and adopted.
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\30\ Berger v United States, 295 U.S. 78, 88 (1935); see also
Statement of Attorney General Eric Holder Regarding United States v.
Theodore F. Stevens, available at http://www.justice.gov/opa/pr/2009/April/09-ag-288.html.
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C. Disclosure in Governmental Civil Proceedings
Courts have held that the Due Process Clause does not require
application of Brady in administrative proceedings.\31\ Nevertheless,
some Federal agencies recently have applied Brady principles to their
civil administrative enforcement proceedings. For example, the Federal
Energy Regulatory Commission (FERC) recently issued a policy statement
that provides respondents with access to certain exculpatory evidence
during that agency's investigations and adjudications.\32\ Under FERC's
regulations, FERC can conduct either an informal or formal
investigation. The new FERC Policy Statement provides, in relevant part
that ``[d]uring the course of an investigation * * *, Enforcement staff
will scrutinize materials it receives
[[Page 34988]]
from sources other than the investigative subject(s) for material that
would be required to be disclosed under Brady. Any such materials or
information that are not known to be in the subject's possession shall
be provided to the subject.'' \33\
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\31\ Mister Discount Stockbrokers v. SEC, 768 F.2d 875, 878 (7th
Cir. 1985) (no right to exculpatory evidence in National Association
of Securities Dealers (NASD) proceedings which are treated the same
as administrative agency action); Sanford v. NASD, 30 F. Supp. 2d 1,
22 n.12 (D.D.C. 1998) (same); NLRB v. Nueva Eng'g, Inc., 761 F.2d
961, 969 (4th Cir. 1985) (``[W] e find Brady inapposite and hold
that the ALJ properly denied Nueva's demand for exculpatory
materials.'').
\32\ See FERC Policy Statement on Disclosure of Exculpatory
Materials, Docket No. PL10-1-000, 129 FERC 61,248 (Dec. 17, 2009)
(FERC Policy Statement), available at http://www.ferc.gov/whats-new/comm-meet/2009/121709/M-2.pdf.
\33\ See FERC Policy Statement at paragraph 9.
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Similarly, the Securities and Exchange Commission (SEC) adopted a
rule of practice in 1995 for its civil enforcement proceedings whereby
its Division of Enforcement shall make available for inspection and
copying ``documents obtained by the Division prior to the institution
of proceedings, in connection with the investigation leading to the
Division's recommendation to institute proceedings.'' \34\ The SEC rule
permits certain documents to be withheld by the agency, including those
documents that are privileged, pre-decisional or work product, a
document that would identify a confidential source, or documents
identified to a hearing officer as being properly withheld for good
cause.\35\
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\34\ See 17 CFR 201.230(a)(1) (2010), available at http://edocket.access.gpo.gov/cfr_2010/aprqtr/pdf/17cfr201.230.pdf.
\35\ 17 CFR 201.230(b)(1).
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However, SEC rule 201.230(b)(2) specifically states that nothing in
the rule ``authorizes the [SEC's] Division of Enforcement in connection
with an enforcement or disciplinary proceeding to withhold, contrary to
the doctrine of Brady, * * * documents that contain material
exculpatory evidence.'' \36\ Although the SEC has limited the
application of rule 201.230 to require the ``production of examination
and inspection reports to circumstances where the Division of
Enforcement intends to introduce the report into evidence, either in
reliance on the report to prove its case, or to refresh the
recollection of any witness,'' this limitation ``does not alter the
requirement that the Division produce documents containing material
exculpatory evidence as required by Brady v. Maryland.'' \37\
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\36\ 17 CFR 201.230(b)(2).
\37\ See Securities and Exchange Commission, Explanation and
Justification: Adoption of Amendments to the Rules of Practice and
Delegations of Authority of the Commission, 69 FR 13166, 13170 (Mar.
19, 2004), available at http://www.sec.gov/rules/final/34-49412.htm.
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As with FERC and the SEC, the Commodity Futures Trading Commission
(CFTC) also provides for disclosure of certain information during the
``discovery'' phase of its formal adjudications.\38\ In addition to a
prehearing exchange of documents, identities of witnesses, and an
outline of its case, the CFTC's Division of Enforcement ``shall make
available for inspection and copying by the respondents'' certain
documents.\39\ These documents include all documents subpoenaed by the
CFTC and all transcripts of investigative testimony and exhibits to
those transcripts.\40\ However, the Division of Enforcement may
withhold, for example, the identity of a confidential source,
confidential investigatory techniques, and other confidential
information, such as trade secrets.\41\ Privileged documents and
information may also be withheld by CFTC's Division of Enforcement.\42\
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\38\ See 17 CFR 10.42 (2010), available at http://edocket.access.gpo.gov/cfr_2010/aprqtr/pdf/17cfr10.42.pdf.
\39\ See 17 CFR 10.42(a)(1) & (2); 17 CFR 10.42(b)(1).
\40\ Id. See also In re First National Monetary Corp., Opinion
and Order, CFTC No. 79-56, CFTC No. 79-57 (Nov. 13, 1981) (Any
material * * * known to the Division of Enforcement, or which by the
exercise of due diligence may become known to the Division, that is
arguably exculpatory and material to guilt or punishment within the
meaning of Brady [and its progeny] should be either provided to
respondent directly, or provided to the [ALJ], for his determination
as to whether it is productible [sic] or not).
\41\ 17 CFR 10.42(b)(2).
\42\ 17 CFR 10.42(b)(3).
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In the case of this Commission, as a Federal agency engaged in
proceedings to find liability of persons under Federal laws, whose
conduct can lead to civil penalties and potentially has the reach of
the criminal system, it has been the Commission's practice to provide
certain types of information to respondents. The Commission is
formalizing its practice to ensure effective and fair enforcement of
the Act.
The Commission recognizes that Brady was decided in the context of
a criminal proceeding and that its holding, therefore, does not extend,
by its own terms, to a Federal agency civil enforcement agency
proceeding. However, the Commission is empowered (a) To civilly pursue
matters that may have potential criminal consequences, and (b) to
engage respondents in the enforcement process, and possibly in
litigation if the Commission and respondents are unable to reach a
mutually acceptable voluntary conciliation agreement, where a Court may
impose a civil monetary penalty, injunctive, or other relief. See 2
U.S.C. 437g(a)(6)(A).
The Commission has also entered into a Memorandum of Understanding
with the Department of Justice (DOJ) whereby the Commission will refer
certain matters to the DOJ for criminal prosecution review and whereby
DOJ will refer matters to the Commission.\43\ Nothing in the procedure
adopted herein is intended to impact in anyway the Commission's conduct
with respect to, and relationship with, the DOJ, including any
agreement between the Commission and the DOJ whereby the Commission
agrees not to disclose information obtained from the DOJ. The procedure
adopted herein provides for mandatory withholding of information by the
Office of General Counsel of any documents or information submitted to
the Commission by the DOJ either pursuant to an agreement between the
Commission and the DOJ or simply upon request from the DOJ not to
disclose the information.\44\ Moreover, the procedure adopted herein
protects from disclosure not only the information submitted by the DOJ
but also any information that was derived from such information,
including all separate documents quoting, summarizing, or otherwise
using information provided by the DOJ.\45\
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\43\ See Department of Justice and Federal Election Commission,
Memorandum of Understanding, 43 F 5441 (Feb. 8, 1978).
\44\ See Updated Formal Procedure at paragraph (b)(1)(v), below.
\45\ Id.
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Accordingly, the Constitutional and ethical principles of fairness
and due process in Brady, as well as the procedures adopted by other
Federal agencies, inform the Commission's adoption of the procedure
announced today in its civil administrative enforcement process.
In summary, while the Commission does not believe that the
Constitution requires the agency to institute a procedure requiring
disclosure of documents and information, including exculpatory
information, to respondents in its civil enforcement process, the
Commission's enforcement proceedings may, in some instances, inform
potential or concurrent criminal proceedings. Accordingly, adopting a
formal internal procedure requiring disclosure of information to
respondents will (1) Eliminate uncertainty regarding the Commission's
position on this issue, (2) serve the Commission's goal of providing
fairness to respondents, and (3) set forth a written procedural
framework within which disclosures are made.
III. Current Disclosure Process
Before the Commission may determine that there is probable cause to
believe a violation of the Act has occurred or is about to occur, the
Act permits respondents to present directly to the Commission their
interests and positions on the matter under review.
[[Page 34989]]
The Commission's General Counsel shall notify respondents prior to any
recommendation to the Commission by the General Counsel to proceed to a
vote on probable cause.\46\ Included in this notification is a written
brief stating the position of the General Counsel on the legal and
factual issues of the case to which respondents may reply.\47\ This
allows the Commission to be informed not only by the recommendations of
its General Counsel, but also by the factual presentations and legal
arguments of respondents. By requirement of the Act, or by its
discretion, the Commission has similar procedures at various stages of
the enforcement process to keep the Commissioners informed both by its
staff and by respondents.
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\46\ See 2 U.S.C. 437g(a)(3).
\47\ See 2 U.S.C. 437g(a)(3); see also 11 CFR 111.16.
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In addition, while the Commission may attempt to conciliate matters
with respondents at any time, the Act requires the Commission to
attempt conciliation after it finds probable cause.\48\ If the
Commission determines that there is probable cause, the Act requires
that, for a period of at least 30 day (or at least 15 days, if the
probable cause determination occurs within 45 days of an election), the
Commission must attempt to correct or prevent the violation through
conference, conciliation, and persuasion.\49\
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\48\ See 2 U.S.C. 437g(a)(4).
\49\ Id.
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The General Counsel provides a probable cause brief to respondents
presenting OGC's analysis of the information and may address any
available exculpatory evidence. The Commission's current practice at
the probable cause stage has generally been to provide respondents,
upon request, with information cited or relied upon (whether or not
cited) in the General Counsel's probable cause brief. Where possible,
this has included documents containing the information upon which OGC
is relying to support its recommendation to the Commission that there
is probable cause to believe a violation of the Act has occurred. This
production of documents is subject to all applicable privileges and
confidentiality considerations, including the confidentiality
provisions of the Act. Where such considerations apply, OGC has
generally provided only the relevant information derived from the
document, and not the document itself. Examples of the types of
documents OGC has provided at this stage are deposition transcripts,
responses to formal discovery, and documents obtained in response to
requests for documents. In instances where OGC obtains factual
information from a source other than the respondent that tends to
exculpate the respondent, OGC may note the existence of the information
in its brief, particularly if OGC does not know whether a respondent is
already aware of the information.\50\ In instances where OGC provides
mitigating or exculpatory information, OGC provides any documents cited
to in connection with that information, such production is also subject
to the same privilege and confidentiality concerns noted above.
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\50\ When advising the Commission on whether OGC intends either
to proceed with its probable cause recommendation or to withdraw the
recommendation, OGC will also provide and discuss the potentially
exculpatory evidence, as well as any available mitigating evidence.
See 11 CFR 111.16(d).
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In two limited instances, OGC may provide information to
respondents earlier than the probable cause stage in the enforcement
process. First, pursuant to the Commission's Statement of Policy
Regarding Deposition Transcriptions in Nonpublic Investigations, all
deponents, including respondent deponents, may obtain a copy of the
transcript of their own deposition, including any exhibits that may
have been obtained from sources other than the respondent, provided
there is no good cause to limit the deponent's access to the
transcript.\51\ Second, OGC may share information, including documents,
with respondents during the post-investigative pre-probable cause
conciliation process to assist in explaining the factual basis for a
violation. That information may include documents not already in the
respondent's possession. This practice is used solely for the purpose
of facilitating conciliation.
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\51\ See Statement of Policy Regarding Deposition Transcriptions
in Nonpublic Investigations, 68 FR 50688 (Aug. 22, 2003), available
at http://www.fec.gov/agenda/agendas2003/notice2003-15/fr68n163p50688.pdf.
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As the current practice has demonstrated, the Commission's probable
cause considerations and subsequent conciliation efforts are furthered
when, in presenting their respective positions, respondents have the
greatest practicable access to documents and information gathered by
the agency, including certain information that might be favorable to
the respondent. This allows both the Commission's Office of General
Counsel and the respondents that are under investigation to present
fully informed submissions and frame legal issues for the Commission's
consideration.
At the same time, however, the Act and other laws restrict
information that the Commission may make public without the consent of
persons under investigation.\52\ Investigations that involve multiple
respondents, each of whom may be at different stages of the enforcement
process, raise questions as to what documents and information the
Commission may disclose to any given respondent before determining
probable cause.
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\52\ See, e.g., 2 U.S.C. 437g(a)(4)(B)(i) and (a)(12).
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The procedure adopted herein is not intended to expand the
disclosure of information regarding a co-respondent as to any such
information that is subject to existing confidentiality requirements
under the Act. In order to reconcile the Commission's interests in
permitting respondents to present fully their positions without
compromising the Commission's confidentiality obligations, the
Commission is formalizing its procedure. This agency procedure
clarifies how the Commission will, consistent with the confidentiality
provisions of 2 U.S.C. 437g(A)(12), enhance its enforcement process by
permitting increased access to documents and information held by the
Commission.
This procedure will allow efficient, fair and just resolution of
issues regarding disclosure of exculpatory information and avoid
unnecessary consumption of respondent and Commission staff resources in
future proceedings.
IV. The Updated Formal Procedure
The Commission is formalizing its agency procedure to provide
respondents in enforcement proceedings with relevant information
ascertained by the Commission as the result of an investigation. The
Commission believes that, while not mandated by the Constitution, the
principle of Brady, and its judicial progeny, should apply following
investigations conducted under Section 437g of the Act and Subpart A of
Part 111 of the Commission's regulations.\53\
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\53\ See generally 2 U.S.C. 437g and 11 CFR part 111.
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The Commission believes that formalizing the procedure will promote
fairness in the Commission's Section 437g enforcement process. The
Commission also believes the procedure articulated in this Notice will
promote administrative efficiency and certainty, and will contribute to
the Commission's goal of open, fair and just investigations and
enforcement proceedings.
For purposes of this procedure, the term ``documents'' includes
writings, drawings, graphs, charts, photographs, recordings and other
data compilations, including data stored by computer, from which
information can be obtained.
[[Page 34990]]
For purposes of this procedure, the term ``exculpatory
information'' means information gathered by the Office of General
Counsel in its investigation, not reasonably knowable by the
respondent, that is relevant to a possible violation of the Act or the
Commission's regulations, under investigation by the Commission and
that may tend to favor the respondent in defense of violations alleged
or which would be relevant to the mitigation of the amount of any civil
penalty resulting from a finding of such a violation by a court.
The procedure is as follows:
(a) Documents To Be Produced or Made Available
(1) Subject to paragraphs (b) through (e) of this procedure, and
unless otherwise directed by the Commission, by an affirmative vote of
four or more Commissioners,\54\ the Office of General Counsel shall
make available to a respondent all relevant documents gathered by the
Office of General Counsel in its investigation, not publicly available
and not already in the possession of the respondent, in connection with
its investigation of allegations against the respondent. This includes
any documents that contain exculpatory information, as defined herein.
This shall not include any documents created internally by a
Commissioner or by a member of a Commissioner's staff. This shall be
done either by producing copies in electronic format or permitting
inspection and copying of such documents. The documents covered by this
procedure shall include:
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\54\ In any instance in which the Office of General Counsel has
concerns that disclosure of information pursuant to this procedure
would lead to a result that is materially inconsistent with either
the Commission's administrative responsibilities or with the
promotion of fairness and efficiency in the Commission's enforcement
process, the Office of General Counsel may seek formal guidance from
the Commission on how it should proceed.
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(i) Documents, not in possession of a respondent, turned over in
response to any subpoenas or other requests, written or otherwise;
(ii) All deposition transcripts and deposition transcript exhibits;
and
(iii) Any other documents, not otherwise publicly available and not
in possession of a respondent, gathered by the Commission from sources
outside the Commission.
(2) Nothing in this paragraph (a) shall limit the authority of the
Commission, by an affirmative vote of four or more Commissioners, to
make available or withhold any other document, or shall limit the
capacity of a respondent to seek access to, or production of, a
document through timely written requests to the Commission subsequent
to the production of documents pursuant to paragraph (d) below. If
respondent submits such a written request, respondent must, if
requested to do so by the Commission, sign a tolling agreement for the
time necessary to resolve the request.
(3) Nothing in this procedure requires the Office of General
Counsel to conduct any search for materials other than those it
receives in the course of its investigatory activities. This procedure
does not require staff to conduct any search for exculpatory materials
that may be found in the offices of other agencies or elsewhere.
(b) Documents That May Be Withheld
(1) Unless otherwise determined by the Commission, as provided in
subparagraph (2) below, the Office of General Counsel shall withhold a
document or a category of documents from a respondent if:
(i) The document contains privileged information, such as, but not
limited to, attorney-client communications, attorney-work product,
staff-work product or work product subject to the deliberative process
privilege; provided, however, if the document contains only a portion
of material that should not be disclosed, if possible to do so
effectively, the Office of General Counsel shall excise or redact from
such document any information that prevents disclosure if the remaining
portion is informative and otherwise qualifies for disclosure as
provided herein, prior to disclosing the document or information
contained therein;
(ii) The document or category of documents is determined by the
General Counsel to be not relevant to the subject matter of the
proceeding;
(iii) The Commission is prevented by law or regulation from
disclosing the information or documents, including, under certain
circumstances, information obtained from, or regarding, co-respondents;
\55\
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\55\ See paragraph (e) of this procedure addresses issues
regarding documents and information that may be subject to
confidentiality pursuant to sections 437g(a)(4)(B)(i) and
437g(a)(12) of the Act. 2 U.S.C. 437g(a)(4)(B)(i) and 437g(a)(12).
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(iv) The document contains information only a portion of which
prevents disclosure as provided herein, and that portion cannot be
excised or redacted without affecting the main import of the document;
or
(v) The Commission obtained the information or documents from the
Department of Justice or another government entity, either pursuant to
a written agreement with the Department of Justice, or the other
government entity, not to disclose the information, documents or
category of documents or upon written request from the Department of
Justice, or the other government entity. Withholding any such
information obtained from the Department of Justice also includes
withholding any information that was derived from such information,
including all separate documents quoting, summarizing, or otherwise
using information provided by the other government entity.
(2) For any document withheld by the General Counsel pursuant to
subparagraphs (1)(i)-(1)(iv) above, the Commission may, pursuant to a
timely written request by the respondent or otherwise, consider whether
to make available such document and, after consideration of relevant
law and regulation, by an affirmative vote of four or more
Commissioners, may determine, consistent with relevant law and
regulation, whether or not it is appropriate to produce such document.
If respondent submits such a written request, it must be within 15 days
of the Commission's production of documents and respondent must, if
requested to do so by the Commission, sign a tolling agreement for the
time necessary to resolve the request.
(3) For any document withheld by the General Counsel pursuant to a
written agreement with, or written request from, the Department of
Justice or the other government entity under subparagraph (1)(v) above,
the General Counsel shall provide a report to the Commission
identifying the documents and information that has been withheld and
providing the Commission with a copy of the written agreement with, or
request from, the Department of Justice or the other government entity.
(c) Withheld Document List
(1) Within ten business days of receipt of documents disclosed
pursuant to paragraph (d) below, a respondent may request in writing
that the Commission direct the General Counsel to produce to the
respondent a list of documents or categories of documents withheld
pursuant to paragraph (b)(1) of this procedure. If respondent submits
such a written request, respondent must sign a tolling agreement for
the time necessary, not to exceed 60 days, for the General Counsel to
provide the list of documents, unless the Commission, by an affirmative
vote of four or more Commissioners, determines that a tolling agreement
is not required. Requests for a list of documents or categories of
documents shall be granted, unless the Commission, by an
[[Page 34991]]
affirmative vote of four or more Commissioners, denies the request, in
whole or in part. Once the Commission has voted upon the written
request, respondent may not seek reconsideration of that decision.
(2) When similar documents are withheld pursuant to paragraph
(b)(1), those documents may be identified by category instead of by
individual document.
(d) Timing of Production or Inspection and Copying
(1) The disclosure of documents and information referenced herein
shall be made pursuant to a timely written request by the respondent
filed within fifteen days of the dates specified in subparagraphs (i)
and (ii) below, and subject to paragraph (e), or unless otherwise
determined by the Commission by an affirmative vote of four or more
Commissioners. The General Counsel shall produce in electronic format,
or commence making documents available to a respondent for inspection
and copying pursuant to this procedure, at the earlier of the
following:
(i) The date of the General Counsel's notification to a respondent
of a recommendation to the Commission to proceed to a vote on probable
cause; or
(ii) No later than seven days after certification of a vote by the
Commission to conciliate with a respondent.
(e) Issues Respecting Documents Provided by, or Relating to, Co-
respondents
(1) If there is more than one respondent that is under
investigation in the same matter, or in related matters, before the
General Counsel may produce documents, other than exculpatory
information or documents cited or relied on in the General Counsel's
brief that accompanies its notice of a recommendation to vote on
probable cause, to one co-respondent that either (a) have been provided
to the Commission by another co-respondent or (b) that relate to
another co-respondent, the General Counsel must obtain a
confidentiality waiver from the co-respondent who provided the document
or about whom the document relates. Additionally, the respondent
receiving such documents may be required to sign a nondisclosure
agreement to keep confidential any document or information it obtains
from the Commission.
(2) If the co-respondent who provided the document or about whom
the document relates does not agree to provide a confidentiality
waiver, the General Counsel shall, if it is possible to do so
effectively, in accordance with 2 U.S.C. 437g(a)(4)(B)(i) and
437g(a)(12), summarize or redact those portions of the document or
documents that are subject to confidentiality under the Act, or are
determined to be in the category of documents to be withheld under
paragraph (b) in order to remove that portion of material that may not
be disclosed.
(3) If the co-respondent who provided the document or about whom
the document relates does not agree to provide a confidentiality waiver
and it is not possible to effectively summarize or redact those
portions of the document or documents that are subject to
confidentiality, the General Counsel shall seek direction from the
Commission, by an affirmative vote of four or more Commissioners,
regarding how to balance the competing concerns of disclosure and
confidentiality. In any event, the General Counsel shall produce
complete or appropriately redacted copies of those documents cited or
relied on in the brief that accompanies its notice of a recommendation
to vote on probable cause, whether or not the documents have been
specifically identified in the brief.
(4) If the confidentiality issue cannot be resolved with respect to
a co-respondent (e.g., lack of waiver, ineffective redaction, etc.),
the General Counsel may, in an appropriate case make a recommendation
to the Commission for segregation of the matters under review.
(5) If any document or information provided to the Commission by a
one co-respondent contains exculpatory information, or is cited or
relied on in the General Counsel's brief that accompanies its notice of
a recommendation to vote on probable cause for another co-respondent,
that information or document will be provided to the other co-
respondent, which shall be subject to the same redactions described in
paragraph (b)(1)(i).
(6) Before disclosing any portion of the document that raises an
unresolved confidentiality issue, the General Counsel shall seek a
determination by the Commission, by an affirmative vote of four or more
Commissioners, that disclosure of a document containing exculpatory
information (redacted, summarized, or in any other way altered)
conforms to the confidentiality provisions of 2 U.S.C. 437g(a)(4)(B)(i)
and 437g(a)(12).
(f) Place of Inspection and Copying Costs and Procedures
(1) Documents subject to inspection and copying pursuant to this
procedure shall be made available to the respondent for inspection and
copying at the Commission's office, or at such other place as the
Commission, in writing, may agree. A respondent shall not be given
custody of the documents or leave to remove the documents from the
Commission's offices pursuant to the requirements of this procedure
unless formal written approval is provided by an affirmative vote of
four or more Commissioners.
(2) The respondent may obtain a photocopy of any documents made
available for inspection. The respondent is responsible for all costs
related to photocopying of any documents.
(g) Continuing Obligation To Produce During Conciliation
(1) If, prior to the completion of an investigation, the Commission
votes to enter into conciliation, the General Counsel shall take
reasonable and appropriate steps to limit any further formal
investigation related to that respondent, so long as the respondent
enters into a tolling agreement of the applicable statute of
limitation. If there is no such tolling agreement, the formal
investigation and conciliation may take place simultaneously. The
tolling agreement must have a specific time for its duration approved
by the Commission, by an affirmative vote of four or more
Commissioners, and shall not be open-ended. If there is more than one
respondent under investigation in the same matter, or in related
matters, and the Commission votes to enter into conciliation with one
or more respondents prior to the completion of a formal investigation,
the General Counsel shall take reasonable and appropriate steps to
limit any further formal investigation as to those respondents in
conciliation, so long as the respondents enter into a tolling agreement
of the applicable statute of limitation. If the Commission receives
documents in the course of the formal investigation as to respondents
not in conciliation that would otherwise be required to be produced
under this procedure during such investigation, the Commission shall
promptly produce them to the respondent in conciliation pursuant to
this procedure.
(2) If the Commission receives documents during such conciliation,
from whatever source, the General Counsel shall within a reasonable
period of time inform the respondent of any documents obtained that
would
[[Page 34992]]
otherwise be required to be produced under this procedure, and as to
such documents, the General Counsel shall timely produce them to the
respondent, consistent with the statutory confidentiality provision
preventing disclosure of any information derived in connection with
conciliation attempts. 2 U.S.C. 437g(a)(4)(B).
V. Failure To Produce Documents as Required Herein--Remedies and
Consequences
In the event that a document required to be made available to a
respondent pursuant to this procedure is not made available, no
reconsideration by the Commission is required, unless the Commission
concludes, by an affirmative vote of four or more Commissioners, that
there is a reasonable likelihood that the decision of the Commission or
result of the conciliation would have been different than the one made
had such disclosure taken place. Any failure by the Commission to make
a document available does not create any rights for a respondent to
seek judicial review, nor any right for a defendant in litigation to
request or receive a dismissal or remand or any other judicial remedy.
A respondent may not request reconsideration by the Commission more
than ten days after the conclusion of conciliation.
VI. Consequences of Disclosure
Disclosure of documents pursuant to this procedure is not an
admission by the Commission that the information or document exculpates
or mitigates respondent's liability for potential violations of the
Act.
VII. Applicability During Civil Litigation
In any civil litigation with the respondent, the discovery rules of
the court in which the matter is pending, and any order made by that
court, shall govern the obligations of the Commission. The intention of
the Commission is for this procedure to serve as internal guidance only
and the procedure adopted herein does not create any rights that are
reviewable or enforceable in any court.
VIII. Annual Review
No later than June 1 of each year, the General Counsel shall
prepare and distribute to the Commission a report describing the
application of the procedure adopted herein over the previous year.
This annual report shall include the General Counsel's assessment of
whether, and to what extent, the procedure has provided an appropriate
balance between the Commission's interest in providing respondents with
relevant documents and information and the confidentiality provisions
of the Act, consistent with the Commission's goal of maintaining open,
fair and just investigations and enforcement proceedings, along with
any recommendations from the General Counsel regarding how the
Commission could better accomplish that goal.
IX. Conclusion
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.
This notice establishes an internal agency procedure for disclosing
to respondents documents and information acquired by the agency during
its investigations in the enforcement process. This procedure sets
forth the Commission's intentions concerning the exercise of its
discretion in its enforcement program. However, the Commission retains
that discretion and will exercise it as appropriate with respect to the
facts and circumstances of each enforcement matter it considers.
Consequently, this procedure does not bind the Commission or any member
of the general public, not does it create any rights for respondents or
third parties. As such, this notice does not constitute an agency
regulation requiring notice of proposed rulemaking, opportunities for
public participation, prior publication, and delay effective under 5
U.S.C. 553 of the Administrative Procedure Act (APA). The provisions of
the Regulatory Flexibility Act, 5 U.S.C. 605(b), which apply when
notice and comment are required by the APA or another statute, are not
applicable.
On behalf of the Commission.
Dated: June 2, 2011.
Caroline C. Hunter,
Vice Chair, Federal Election Commission.
[FR Doc. 2011-14096 Filed 6-14-11; 8:45 am]
BILLING CODE 6715-01-P