ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 17, 2018 

No. 18-5099 

_______________________________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_______________________________________________ 

JOHN DOE 1, et al., 

Plaintiffs-Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

_______________________________________________ 

On Appeal from the United States District Court 

for the District of Columbia 

_______________________________________________ 

BRIEF FOR THE FEDERAL ELECTION COMMISSION 

PUBLIC COPY--SEALED MATERIAL DELETED

_______________________________________________ 

Lisa J. Stevenson 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Charles Kitcher 

Acting Assistant General Counsel 

ckitcher@fec.gov 

June 18, 2018 

Robert W. Bonham III 

Senior Attorney 

rbonham@fec.gov 

Haven G. Ward 

Attorney 

hward@fec.gov 

FEDERAL ELECTION 

COMMISSION 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

Pursuant to Circuit Rule 28(a)(1), defendant-appellee Federal Election 

Commission (“Commission” or “FEC”) submits its Certificate as to Parties, 

Rulings, and Related Cases. 

(A) Parties and Amici. John Does 1 and 2 are plaintiffs in the district court

and appellants in this Court. The FEC is the defendant in the district court and the 

appellee in this Court. Citizens for Responsibility and Ethics in Washington and 

Anne Weismann (collectively, “CREW”) filed an amicus brief in the district court. 

(B) Ruling Under Review. Appellants appeal the March 23, 2018 final

order and judgment of the United States District Court for the District of Columbia 

(Jackson, J.), which denied appellants’ request to permanently enjoin the FEC from 

disclosing appellants’ identities as part of its release of the public file in Matter 

Under Review 6920 in accordance with Commission regulations and its disclosure 

policy. The Memorandum Opinion appears in the Joint Appendix (“J.A.”) at J.A. 

541-63 and is reported at Doe v. FEC, Civ. No. 17-2694 (ABJ), ___ F. Supp. 3d

___, 2018 WL 1461964 (D.D.C. Mar. 23, 2018, as amended May 29, 2018). 

(C) Related Cases. On December 22, 2017, CREW filed suit against the

FEC in the United States District Court for the District of Columbia. CREW v. 

FEC, Civ. No. 17-2770 (ABJ). CREW designated that case as related case to the 

underlying case, Doe v. FEC, Civ. No. 17-2694 (D.D.C.).

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TABLE OF CONTENTS 

Page 

COUNTERSTATEMENT OF ISSUE PRESENTED ......................................... 1 

STATUTES AND REGULATIONS .................................................................... 1 

COUNTERSTATEMENT OF THE CASE ......................................................... 1 

I. STATUTORY AND REGULATORY BACKGROUND .......................... 1 

A. The Federal Election Commission ................................................... 1 

B. Disclosure of FEC Enforcement Matters ........................................ 2 

II. FACTUAL AND PROCEDURAL BACKGROUND .............................. 5 

A. Administrative Proceedings ............................................................ 5 

B. District Court Proceedings .............................................................. 9 

SUMMARY OF THE ARGUMENT ................................................................. 14 

ARGUMENT ...................................................................................................... 15 

I. STANDARD OF REVIEW ..................................................................... 15 

II. DISCLOSURE OF APPELLANTS’ IDENTITIES IS REASONABLE

UNDER FECA, FEC REGULATIONS, AND THE COMMISSION’S

DISCLOSURE POLICY .......................................................................... 16 

A. The Commission Has the Authority to Adopt Its Disclosure

Policy, as Well as 11 C.F.R. § 111.20 ........................................... 17 

1. The FEC Has Authority to Establish Its Disclosure

Policy ................................................................................... 18 

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2. Because Section 30109(a)(4)(B)(ii) Is Ambiguous,

Congress Authorized the FEC to Reasonably

Interpret It ............................................................................ 22 

B. Disclosure of Appellants’ Identities Pursuant to the

Commission’s Carefully Tailored Disclosure Policy Is

Reasonable ..................................................................................... 26 

C. 11 C.F.R. § 111.20 Supports the Reasonableness of

Disclosure ....................................................................................... 33 

III. FOIA EXEMPTION 7(C) DOES NOT PRECLUDE DISCLOSING

APPELLANTS’ IDENTITIES ................................................................. 38 

A. FOIA Exemption 7(C) Is Not a Categorical Bar to the

Commission’s Disclosure of the Information Here ....................... 38 

B. FEC Regulations Do Not Prohibit the Disclosures Here ............... 40 

C. Because the Commission Has a Rational Basis for Disclosing

Appellants’ Identities, Appellants’ Purported Reverse-FOIA

Claim Must Fail. ............................................................................ 42 

1. The Commissioners’ Statement of Reasons and

September 20, 2017 Vote Certification Are Subject to

FOIA’s Mandatory Disclosure Requirements .................. 43 

2. As An Artificial Entity, John Doe 2 Does Not Have

“Personal” Privacy Rights ................................................. 45 

3. Because Any Reference to John Doe 1 Was Solely in

His Official Capacity, His Privacy Interests Are

 Reduced ............................................................................. 47 

IV. THE FIRST AMENDMENT DOES NOT BAR DISCLOSURE OF

APPELLANTS’ IDENTITIES ................................................................. 50 

A. Appellants’ Alleged First Amendment Interests Are

Insubstantial ................................................................................... 50 

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B. Disclosure of Appellants’ Identities Does Not Impermissibly

Infringe on Appellants’ First Amendment Rights, If Any ............. 52 

CONCLUSION ................................................................................................... 57 

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TABLE OF AUTHORITIES 

Cases Page

Abramski v. United States, 134 S. Ct. 2259 (2014) ............................................ 24 

AFL-CIO v. FEC, 177 F. Supp. 2d 48 (D.D.C. 2001) ........................................ 40 

Albany Engineering v. FERC, 548 F.3d 1071 (D.C. Cir. 2008) ......................... 19 

Alexander & Alexander Servs. v. SEC, Civ. No. 92-1112 (JHG), 

 1993 WL 439799 (D.D.C. Oct. 19, 1993) ................................................... 48 

*American Federation of Labor & Congress of Industrial

Organizations v. FEC, 333 F.3d 168 (D.C. Cir. 2003)................................... 

 ................ 3, 4, 10, 11, 14, 17, 19, 20, 21, 27, 28, 41, 48, 51, 53, 54, 55, 57 

Baltimore Sun v. U.S. Marshals Serv., 131 F. Supp. 2d 725 (D. Md. 2001) ..... 31 

Bartholdi Cable Co. v. F.C.C., 114 F.3d 274 (D.C. Cir. 1997) ......................... 39 

Bristol-Meyers Co. v. F.T.C., 598 F.2d 18 (D.C. Cir. 1978) .............................. 43 

Buckley v. Valeo, 424 U.S. 1 (1976) ........................................... 21, 31, 51, 54, 55 

Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995) .......................... 27 

*Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

 467 U.S. 837 (1984)....................................................... 10, 11, 12, 15, 20, 36

Chiquita Brands Int’l Inc. v. S.E.C., 805 F.3d 289 (D.C. Cir. 2015) ........... 15, 46 

*Chrysler Corp. v. Brown, 441 U.S. 281 (1979) .......................................... 38, 39 

Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice,

 746 F.3d 1082 (D.C. Cir. 2014) ................................................................... 30

* Authorities upon which the FEC chiefly relies are marked with asterisks.

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Citizens for Responsibility & Ethics in Wash. v. FEC, No. 17-5049, 

-- F.3d --, 2018 WL 2993249 (D.C. Cir. June 15, 2018) ........................... 27, 38 

Citizens United v. FEC, 558 U.S. 310 (2010) .................................................... 50 

Consarc Corp. v. U.S. Treasury Dep’t,

 71 F.3d 909 (D.C. Cir. 1995) ....................................................................... 15

Cottone v. Reno, 193 F.3d 550 (D.C. Cir. 1999) ................................................ 42 

Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597 (2013) ......................................... 34 

Democratic Cong. Campaign Comm. v. FEC,

 831 F.2d 1131 (D.C. Cir. 1987) ............................................................. 23, 24

District of Columbia v. Air Fla., 750 F.2d 1077 (D.C. Cir. 1984) ..................... 32 

Doe v. City of Chicago, 360 F.3d 667 (7th Cir. 2004) ....................................... 31 

Doe v. FEC, Civ. No. 17-2694 (ABJ), 2018 WL 1461964 

 (D.D.C. Mar. 23, 2018, as amended May 29, 2018) ....................................... 

Doe v. Pub. Citizen, 749 F.3d 246 (4th Cir. 2014) ............................................. 31 

Doe v. Reed, 561 U.S. 186 (2010) ................................................................ 50, 53 

Edelman v. S.E.C., 239 F. Supp. 3d 45 (D.D.C. 2017) ...................................... 30 

EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981) ............................ 21 

Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275 (D.C. Cir. 1981) .................. 15, 43 

FCC v. AT&T Inc., 562 U.S. 397 (2011) ...................................................... 13, 45 

F.C.C. v. Schreiber, 381 U.S. 279 (1965) .......................................................... 21 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) ............ 29 

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FEC v. Nat’l Republican Senatorial Comm., 

966 F.2d 1471 (D.C. Cir. 1992) .................................................................. 23 

F.T.C. v. Anderson, 631 F.2d 741 (D.C. Cir. 1979) ........................................... 21 

Fox v. Gov’t of D.C., 794 F.3d 25 (D.C. Cir. 2015) ........................................... 19 

Fund for Constitutional Gov’t v. Nat’l Archives & Records Serv., 

 656 F.2d 856 (D.C. Cir. 1981) ..................................................................... 27 

Guam Indus. Servs., Inc. v. Rumsfeld, 383 F. Supp. 2d 112 (D.D.C. 2005) ...... 41 

Heckler v. Chaney, 470 U.S. 821 (1985) ............................................................ 27 

Hibbs v. Winn, 542 U.S. 88 (2004) ..................................................................... 25 

Iowa Citizens for Cmty. Improvement v. U.S. Dep’t of Agric., 

 256 F. Supp. 2d 946 (S.D. Iowa 2002) .................................................. 45, 46 

Judicial Watch of Fla., Inc. v. U.S. Dep’t of Justice, 

 102 F. Supp. 2d 6 (D.D.C. 2000) ................................................................. 31 

Jurewicz v. U.S. Dept. of Agric., 741 F.3d 1326 (D.C. Cir. 2014) ............... 15, 42 

Kentucky v. Graham, 473 U.S. 159 (1985) ........................................................ 48 

King v. Burwell, 135 S. Ct. 2480 (2015) ............................................................ 22 

Lardner v. U.S. Dep’t of Justice, Civ. No. 03-0180(JDB), 

 2005 WL 758267 (D.D.C. Mar. 31, 2005) ...................................................... 

Marlow v. New Food Guy, Inc., 861 F.3d 1157 (10th Cir. 2017) ...................... 20 

Multi Ag Media LLC v. Department of Agriculture, 

 515 F.3d 1224 (D.C. Cir. 2008) ................................................................... 46

Nation Magazine, Wash. Bureau v. U.S. Customs Service, 

 71 F.3d 885 (D.C. Cir. 1995) ....................................................................... 39 

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Nat’l Ass’n for Advancement of Colored People v. State of Ala. 

 ex rel. Patterson, 357 U.S. 449 (1958) ........................................................ 55 

Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26 (D.C. Cir. 2002) ............ 44 

Nat’l Ass’n of Mfrs. v. Taylor, 582 F.3d 1 (D.C. Cir. 2009) .................................. 

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 

 545 U.S. 967 (2005) ..................................................................................... 17

Nat’l Cable & Telecomms. Ass’n v. Gulf Power Co., 534 U.S. 327 (2002) ...... 17 

Navistar, Inc. v. Jackson, 840 F. Supp. 2d 357 (D.D.C. 2012) .......................... 23 

NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978) .............................. 49 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) ................................................. 18 

Paul v. Davis, 424 U.S. 693 (1976) ................................................................... 52 

People for the Am. Way Found. v. Nat’l Park Serv., 

 503 F. Supp. 2d 284 (D.D.C. 2007) ............................................................. 30

People for the Ethical Treatment of Animals v. Nat’l Inst. of Health,

 745 F.3d 535 (D.C. Cir. 2014) ..................................................................... 49

Public Citizen, Inc. v. FERC, 

 839 F.3d 1165 (D.C. Cir. 2016) ................................................................... 23

SafeCard Services, Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) ...................... 39 

Sims v. CIA, 642 F.2d 562 (D.C. Cir. 1980) ....................................................... 47 

Tripp v. Dep’t of Def., 193 F. Supp. 2d 229 (D.D.C. 2002) ............................... 40 

U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press,

489 U.S. 749 (1989) ................................................................................... 28, 29 

U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (1989) ............................... 19 

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United States v. Harrison, 653 F.2d 359 (8th Cir. 1981) ................................... 45 

United States v. Kanchanalak, 192 F.3d 1037 (D.C. Cir. 1999) ........................ 18 

Wash. Post Co. v. U.S. Dep’t of Health & Human Servs.,

 690 F.2d 252 (D.C. Cir. 1982) ..................................................................... 44

Wash. Post Co. v. U.S. Dep’t of Justice, 863 F.2d 96 (D.C. Cir. 1988) ....... 47, 48 

Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989) .................................... 49 

Worthington Compressors, Inc. v. Costle, 662 F.2d 45 (D.C. Cir. 1981) .......... 39 

Zadvydas v. Davis, 533 U.S. 678 (2001) ............................................................ 28 

Statutes and Regulations

5 U.S.C. § 301 ..................................................................................................... 20 

5 U.S.C. § 552 ..................................................................................................... 20

5 U.S.C. § 552(a)(2) ........................................................................................... 44

*5 U.S.C. § 552(a)(2)(A) .................................................................... 3, 43, 44, 55 

5 U.S.C. § 552(a)(5) ................................................................................. 3, 43, 44

5 U.S.C. § 552(b)(7)(c) ....................................................................................... 43

5 U.S.C. § 706(2)(A) .......................................................................................... 15

52 U.S.C. § 30106(a)(1) ..................................................................................... 29

52 U.S.C. § 30106(b)(1) ....................................................................................... 2

52 U.S.C. § 30106(c) ............................................................................................ 2 

52 U.S.C. § 30106(e) .......................................................................................... 20

52 U.S.C. § 30107(a)(8) ........................................................................... 2, 17, 20

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52 U.S.C. § 30109 ................................................................................................. 2

52 U.S.C. § 30109(a) .......................................................................................... 20 

52 U.S.C. § 30109(a)(1) ........................................................................... 2, 33, 37

52 U.S.C. § 30109(a)(2) ..................................................................... 2, 33, 37, 38 

52 U.S.C. § 30109(a)(3) ....................................................................................... 2 

52 U.S.C. § 30109(a)(4) ....................................................................................... 2

52 U.S.C. § 30109(a)(4)(B)(i) ............................................................................ 19

*52 U.S.C. § 30109(a)(4)(B)(ii).................... 3, 10, 16, 18, 19, 22, 23, 24, 25, 28 

52 U.S.C. § 30109(a)(5) ....................................................................................... 2 

52 U.S.C. § 30109(a)(6)(A) .................................................................................. 3

52 U.S.C. § 30109(a)(12)(A) .................................................................. 11, 19, 25 

52 U.S.C. § 30111(a)(8) ........................................................................... 2, 24, 27

52 U.S.C. § 30111(d) .......................................................................................... 21 

52 U.S.C. § 30122 ........................................................................................... 5, 31 

11 C.F.R. § 4.1(c) ............................................................................................... 40 

11 C.F.R. § 4.1(d) ............................................................................................... 40

11 C.F.R. § 4.4(b) ............................................................................................... 41

11 C.F.R. § 4.5(a)(7)(iii) ..................................................................................... 41

11 C.F.R. § 5.4(a)(4) ........................................................................................... 41

11 C.F.R. § 111.3(a) ....................................................................................... 2, 37

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11 C.F.R. § 111.3(b) ..................................................................................... 33, 38 

11 C.F.R. § 111.8(a) ..................................................................................... 33, 38 

11 C.F.R. § 111.8(b) ..................................................................................... 33, 38 

11 C.F.R. § 111.20 .................................................................................. 17, 25, 33 

*11 C.F.R. § 111.20(a) ............................................... 3, 12, 17, 34, 35, 36, 37, 38 

11 C.F.R. § 111.20(b) ......................................................................................... 12

Miscellaneous

2A N. Singer, Statutes and Statutory Construction § 46.06 

 (rev. 6th ed. 2000) .................................................................25

1974 FOIA Amendments Conference Committee Report, 

S. Conf. Rep. 93-1200, 93d Cong., 2d Sess. (1974),

 1974 U.S.C.C.A.N. 6285 ............................................................................. 44

FEC, Agency Procedure for Notice to Respondents in Non-Complaint 

Generated Matters, 74 Fed. Reg. 38,617 (Aug. 4, 2009) ............................... 33 

*FEC, Disclosure of Certain Documents in Enf’t and Other Matters,

81 Fed. Reg. 50702 (Aug. 2, 2016) ...................... 3, 4, 16, 17, 26, 36, 41, 50, 54 

FEC, Statement of Policy Regarding Treasurers Subject to 

 Enf’t Proceedings, 70 Fed. Reg. 3 (Jan. 3, 2005) ........................................ 48 

Fed. R. Crim. P. 6(e)(6) ...................................................................................... 28 

Internal Revenue Service, Internal Revenue Manual, Part 11 § 11.3.2.4.8, 

11.3.13.9.27, https://www.irs.gov/irm/part11 ................................................. 47 

MURs 4317 & 4323, Huckabee Election Comm., Statement of Reasons 

(June 14, 1999), http://eqs.fec.gov/eqsdocsMUR/00003A0A.pdf .................. 24 

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MUR 5659, In the Matter of Democratic Party of Haw., Statement of FEC 

Comm’r Weintraub (July 14, 2005), https://www.fec.gov/data/legal/matterunder-review/5659/) ......................................................................................... 32 

Restatement (Second) of Torts § 652I ................................................................ 45 

Ward L. Thomas & Leonard J. Henzke, Jr., Trusts: Common Law and IRC 

501(c)(3) and 4947, Exempt Organizations-Technical Instruction Program for 

FY 2003, https://www.irs.gov/charities-non-profits/cpe-for-fy-2003-2 ......... 47 

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GLOSSARY 

APA Administrative Procedure Act 

CREW Citizens for Responsibility and Ethics in Washington and 

Anne L. Weismann 

FEC or Commission Federal Election Commission 

FECA or Act Federal Election Campaign Act 

FOIA Freedom of Information Act 

J.A. Joint Appendix

MUR Matter Under Review

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COUNTERSTATEMENT OF ISSUE PRESENTED 

Whether the district court correctly rejected appellants’ request to 

permanently enjoin the FEC from disclosing their identities as part of its intended 

public release of the file for a closed administrative enforcement matter in which 

appellants’ roles in the underlying unlawful activity were discussed in detail, by 

concluding that the FEC’s intended release is consistent with Commission 

regulations and its current disclosure policy, and that the disclosure policy and its 

application to appellants is consistent with the provisions of the Federal Election 

Campaign Act, the Freedom of Information Act, and the First Amendment. 

STATUTES AND REGULATIONS 

All applicable statutory provisions and regulations are contained in the Brief 

of Appellants (“Br.”) at pp. A-1 to A-9 of the Addendum. 

COUNTERSTATEMENT OF THE CASE 

I. STATUTORY AND REGULATORY BACKGROUND

A. The Federal Election Commission

The Federal Election Commission (“FEC” or “Commission”) is a sixmember, independent agency vested with statutory authority over the 

administration, interpretation, and civil enforcement of the Federal Election 

Campaign Act (“FECA” or “Act”). Congress authorized the Commission to 

“administer, seek to obtain compliance with, and formulate policy with respect to” 

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FECA, 52 U.S.C. § 30106(b)(1); “to make, amend, and repeal such rules . . . as are 

necessary to carry out the provisions of [FECA],” id. §§ 30107(a)(8), 30111(a)(8); 

and to investigate possible violations of the Act, id. § 30109(a)(1)-(2). The FEC is 

required under FECA to make decisions through majority votes and, for certain 

actions, including enforcement decisions, with the affirmative vote of at least four 

Commissioners. Id. § 30106(c). 

B. Disclosure of FEC Enforcement Matters

The FEC exercises its civil enforcement authority under FECA’s detailed 

administrative enforcement procedures. Id. § 30109. A new enforcement matter, 

known as a “Matter Under Review” or “MUR,” is initiated by the filing of an 

administrative complaint with the agency or on the basis of information the 

Commission ascertains in the normal course of carrying out its supervisory 

responsibilities. Id. § 30109(a)(1)-(2); 11 C.F.R. § 111.3(a). Thereafter, the 

Commission engages in a series of formal steps, including determining whether 

there is “reason to believe” regarding the alleged FECA violation, investigating the 

allegation, determining whether there is “probable cause” regarding the alleged 

violation, and engaging in conciliation with the alleged violator (the “respondent”). 

52 U.S.C. § 30109(a)(2)-(5). Each of these steps requires the affirmative vote of 

four FEC Commissioners to proceed. Id. If the FEC is unable to reach a 

conciliation agreement with a respondent, FECA authorizes the FEC to institute a 

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de novo civil enforcement action in federal district court, upon an affirmative vote 

of at least four Commissioners. Id. § 30109(a)(6)(A). 

Regardless of how an enforcement matter is resolved, FECA, Commission 

regulations, and the Freedom of Information Act (“FOIA”) require making the 

Commission’s resolution of the matter public. FECA requires the Commission to 

make public conciliation agreements, as well as any “determination that a person 

has not violated” FECA. Id. § 30109(a)(4)(B)(ii). The Commission has 

implemented this provision in a regulation requiring publication of any “finding of 

no reason to believe or no probable cause to believe” or other “terminat[ion of] 

proceedings” and “the basis therefor.” 11 C.F.R. § 111.20(a). Similarly, FOIA 

requires the agency to affirmatively disclose adjudication opinions and orders, as 

well as voting records. 5 U.S.C. § 552(a)(2)(A), (a)(5). 

The Commission has further implemented FECA’s and FOIA’s disclosure 

requirements through promulgation of disclosure policies, including the current 

one adopted unanimously in 2016. FEC, Disclosure of Certain Documents in Enf’t 

and Other Matters, 81 Fed. Reg. 50702, 50703 (Aug. 2, 2016), 

https://transition.fec.gov/law/cfr/ej_compilation/2016/notice2016-06.pdf (“FEC 

Disclosure Policy”). The policies were specifically developed in response to 

American Federation of Labor & Congress of Industrial Organizations v. FEC,

333 F.3d 168 (D.C. Cir. 2003) (“AFL-CIO”), in which this Court found that the 

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FEC’s disclosure regulation requiring blanket disclosure of entire investigation 

files was overbroad due to First Amendment concerns. Id. at 170-71, 176-78. 

After weighing the various interests involved and refining its policy several 

times, the Commission now limits disclosure to the documents that it determined 

were “integral to [the FEC’s] decisionmaking process.” FEC Disclosure Policy, 81 

Fed. Reg. at 50703. The categories of documents now disclosed “either do not 

implicate the [AFL-CIO] Court’s concerns or, because they play a critical role in 

the resolution of a matter, the balance tilts decidedly in favor of public disclosure, 

even if the documents reveal some confidential information.” Id. Such documents 

include, inter alia, FEC General Counsel’s Reports that make recommendations 

regarding whether there is reason to believe or probable cause to believe violations 

occurred, memoranda and reports from the Office of General Counsel prepared in 

connection with a specific Matter Under Review and formally circulated for 

Commission consideration and deliberation, and statements of reasons issued by 

the Commissioners. Id. at 50702. Unlike the policy that was invalidated, the 

current policy excludes from disclosure “subpoenaed records, deposition 

transcripts, and other records produced in discovery, even if those evidentiary 

documents are referenced in, or attached to, documents specifically subject to 

release under this policy.” Id. at 50703. 

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II. FACTUAL AND PROCEDURAL BACKGROUND

A. Administrative Proceedings

This case arises out of an administrative complaint filed with the 

Commission by Citizens for Responsibility and Ethics in Washington and Anne L. 

Weismann (collectively, “CREW”).1

 CREW alleged that an “unknown 

respondent” made a $1.7 million contribution in the name of the American 

Conservative Union to the political committee Now or Never PAC in violation of 

FECA’s prohibition on contributions in the name of another, 52 U.S.C. § 30122. 

(Admin. Compl., https://www.fec.gov/files/legal/murs/6920/17044434345.pdf.) 

The FEC designated the matter MUR 6920. 

On January 24, 2017, the Commission found reason to believe that the 

American Conservative Union and “Unknown Respondent” violated FECA’s 

prohibition on making or accepting contributions in the name of another and 

authorized an investigation. (Jan. 24, 2017 Certification, 

https://www.fec.gov/files/legal/murs/6920/17044434423.pdf.) Based on 

information obtained during the investigation, on July 11, 2017, the Commission 

substituted the entity Government Integrity, LLC in the place of “Unknown 

1 The administrative complaint, as well as redacted versions of the other 

documents at issue, are publicly available on the FEC’s website at

https://www.fec.gov/data/legal/matter-under-review/6920/. 

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After MUR 6920 was resolved, John Does 1 and 2 requested that their 

names be redacted from the administrative case materials that the FEC would place 

on the public record. The Does are identified and discussed in several documents 

that would be made public in accordance with the Commission’s disclosure policy, 

including: (a) an Office of General Counsel recommendation to seek discovery 

from the Does and the Commission voting certification approving the 

recommendation; (b) various General Counsel reports discussing the Does’ role in 

the matter, both regarding their own potential liability and that of Government 

Integrity, LLC; (c) designation of counsel forms; (d) a response of Government 

Integrity, LLC to the Commission regarding the allegations that it violated FECA; 

and (e) two statements of reasons in which Commissioners explained their votes 

regarding whether there was reason to believe the Does violated FECA. (See J.A. 

93-211 (redacted versions of documents from the FEC’s administrative case file).)

To consider this request, the Commission refrained from publicly releasing 

the case file beyond the 30 days from closure that ordinarily applies under the 

disclosure policy. (J.A. 57.) After careful consideration during multiple executive 

sessions, on December 14, 2017, the Commission determined not to deviate from 

of the contribution at issue. Compl., Citizens for Responsibility & Ethics in Wash. 

v. FEC, Civ. No. 17-2770 (D.D.C. filed Dec. 22, 2017) (Docket No. 1).

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its disclosure policy. (Id.) That same day, the Commission notified counsel for 

John Does 1 and 2 of the Commission’s decision. (Id.) 

B. District Court Proceedings

On December 15, 2017, John Does 1 and 2 filed suit seeking a permanent 

injunction barring the FEC from disclosing their identities, as well as a motion for 

a temporary restraining order and preliminary injunction. (J.A. 11, 22.) Neither 

their complaint nor their motion denied that John Doe 2 was the source of the 

contribution at issue. 

 

Accepting the FEC’s indication that if the Does’ request for injunctive relief 

was not immediately denied then temporary redactions would be preferable to 

withholding the relevant portions of the public administrative case file, the court 

required temporary confidentiality, denied the Does’ request for a temporary 

restraining order, and consolidated the Does’ motion for preliminary injunction 

with the merits. (J.A. 4 (Minute Order (Dec. 18, 2017)).) Shortly thereafter, the 

Commission published a redacted version of the public case file. (J.A. 61-62.) 

Although the Does subsequently submitted two more briefs with the court, they did 

not dispute the FEC’s assertions 

 that John Doe 2 sent funds to 

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549.) The court also rejected appellants’ argument that a FECA provision for 

confidentiality of enforcement matters, 52 U.S.C. § 30109(a)(12)(A), prohibited 

disclosure of their identities in this case, citing “binding” precedent, thus 

concluding Chevron step one. (J.A. 551 (citing AFL-CIO, 333 F.3d at 174.)) 

Before proceeding to Chevron step two, however, the court found that, in 

“accordance with the approach outlined in AFL-CIO,” it first had to “resolve 

whether the Commission’s revised disclosure policy, and its application to the 

information plaintiffs are seeking to shield here, are constitutional.” (J.A. 553.) 

The court concluded that the FEC’s current disclosure policy is constitutional. 

(J.A. 554-59.) Contrasting the extensive unreviewed materials at issue in AFLCIO containing references to volunteers, members, and employees with no role in 

the matter being investigated, with the appellants here, who were central to the 

resolution of a matter, as well as the now carefully tailored disclosure policy with 

the blanket policy at issue in AFL-CIO, the court found AFL-CIO distinguishable. 

(J.A. 554-56.) 

The court then examined the First Amendment rights asserted by appellants, 

finding both that these constitutional concerns were vaguely articulated (J.A. 556-

57) and that, “notwithstanding the plaintiffs’ highly selective quotations from the

case law, the constitutional issue [of contributing anonymously] has already been 

decided in the agency’s favor” (J.A. 558-59 (collecting cases)). The court 

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concluded that “neither the FEC policy on its face nor its application in this case 

impinges impermissibly on the plaintiffs’ First Amendment right to express 

themselves through political donations.” (J.A. 559.) It further explained that 

appellants had articulated no grounds to fear that they may be subject to 

harassment or reprisal. (Id.) 

Having resolved the First Amendment issue in the FEC’s favor, the court 

turned back to the Chevron step two question of whether “disclosure is reasonable 

under standard [Administrative Procedure Act (“APA”)] principles.” (Id.) 

Applying Chevron deference, the court agreed that the “agency’s interpretation of 

the statute to require the public disclosure set forth in the regulation [(11 C.F.R. 

§ 111.20(a)-(b))] is reasonable.” (J.A. 560.) That regulation requires the

disclosure of matters when the Commission “otherwise terminates its 

proceedings,” 11 C.F.R. § 111.20(a), which the court agreed applied here 

regardless of whether appellants were respondents or not. (J.A. 561.) The court 

found that “the public has an interest in the agency’s decision to terminate this 

proceeding involving Government Integrity without enforcing its own subpoenas 

and following the money back to its source.” (Id.) It explained that “[t]his is not a 

situation where a person’s name happened to come up in a wide ranging inquiry,” 

observing that appellants “were integrally involved in a narrow, focused 

investigation: plaintiff John Doe 2 was a link in the single chain involving a single 

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contribution, it is related to Government Integrity, a party to the conciliation 

agreement, and it was the recipient of a subpoena from the agency.” (J.A. 561-62) 

Finally, the court rejected appellants’ attempt to rely on FOIA principles. It 

explained that John Doe 2, as a trust, does not have privacy rights under FOIA. 

(J.A. 563 (“[U]nder well-established FOIA principles, an entity has no right to 

‘personal privacy’ under FOIA Exemption 7(C)” (citing FCC v. AT&T Inc., 562 

U.S. 397, 409-10 (2011)).) And to the extent John Doe 1 had privacy interests, the 

court explained that those interests were minimal because his actions “were solely 

[as trustee] on behalf of the trust, not himself.” (Id.) “The agency’s salutary 

interest in exposing its decision making to public scrutiny outweighs plaintiffs’ 

insubstantial privacy concerns.” (Id.) 

The Does sought an emergency stay pending appeal. (J.A. 9.) In exchange 

for the Does’ consent to seek expedited review in this Court, the FEC consented to 

a stay or an injunction pending appeal. (J.A. 290.) The district court entered the 

parties’ agreed-upon proposal to stay the judgment. (J.A. 9-10 (Minute Order 

(Apr. 10, 2018)).) On April 26, 2018, this Court granted the FEC’s consent motion 

to expedite briefing in this appeal. Doe v. FEC, No. 18-5099, Order (D.C. Cir. 

Apr. 26, 2018) (Document #1728358). 

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SUMMARY OF THE ARGUMENT 

The district court’s judgment in the FEC’s favor should be sustained. 

FECA, FEC regulations, and the agency’s disclosure policy demonstrate that it is 

both constitutional and reasonable for the agency to disclose appellants’ identities 

as part of the FEC’s public enforcement file for MUR 6920. Disclosure is 

consistent with the general government policy favoring openness in agency 

proceedings, and here it undoubtedly furthers the FEC’s interests in accountability 

and deterrence, which this Court recognized as valid in AFL-CIO. Appellants 

feature prominently in the documents reflecting the Commission’s handling of 

MUR 6920 and indeed were themselves the subject of a Commission vote 

regarding whether there was reason to believe that the Does violated FECA. 

Disclosure of appellants’ identities is consistent with FECA and the FEC’s 

regulations and should be sustained under the applicable deferential standard of 

review under Chevron. Appellants’ argument that FOIA Exemption 7(C) 

affirmatively bars disclosure here is meritless. Appellants misconceive the nature 

of FOIA, and the cases they cite do not support their claim that the Commission’s 

intended disclosure is categorically prohibited. Finally, appellants’ claimed First 

Amendment interests are insubstantial, and, to the extent they are cognizable, are 

clearly outweighed by the agency’s interests. 

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ARGUMENT 

I. STANDARD OF REVIEW

Where, as here, the district court considered agency action under the APA,

this Court “review[s] the administrative action directly,” Chiquita Brands Int’l 

Inc. v. S.E.C., 805 F.3d 289, 293 (D.C. Cir. 2015), and “must” uphold the FEC’s 

disclosure decision unless it is “‘arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law.’” Jurewicz v. U.S. Dept. of Agric., 741 

F.3d 1326, 1330 (D.C. Cir. 2014) (quoting 5 U.S.C. § 706(2)(A)). “This ‘arbitrary

and capricious’ standard of review is a highly deferential one which presumes the 

agency’s action to be valid. The standard mandates judicial affirmance if a 

rational basis for the agency’s decision is presented even though [the court] might 

otherwise disagree.” Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. 

Cir. 1981) (citations and footnote omitted). 

Deference is also accorded because the FEC here interprets FECA and its 

own regulations. When considering the agency’s interpretation of its organic 

statute, the familiar two-step framework under Chevron, 467 U.S. 837, applies. 

This requires the Court first to determine “whether Congress has directly spoken 

to the precise question at issue” and, if not, to defer to the agency’s interpretation 

as long as it is “based on a permissible construction of the statute.” Id. at 842-43. 

When the FEC is interpreting its own regulations, deference to the agency is 

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particularly high. Consarc Corp. v. U.S. Treasury Dep’t, 71 F.3d 909, 915 (D.C. 

Cir. 1995) (“[A]n agency’s application of its own regulations, receives an even 

greater degree of deference than the Chevron standard.” (internal quotation marks 

omitted)). 

II. DISCLOSURE OF APPELLANTS’ IDENTITIES IS REASONABLE

UNDER FECA, FEC REGULATIONS, AND THE COMMISSION’S

DISCLOSURE POLICY

Under the applicable standard of deferential review, the FEC should be

permitted to disclose appellants’ identities in connection with its file for MUR 

6920. Appellants’ names are included in documents the disclosure of which the 

agency has deemed “integral to its decisionmaking process.” FEC Disclosure 

Policy, 81 Fed. Reg. at 50703. Appellants were referenced in documents 

addressing whether there was reason to believe they violated FECA, whether 

discovery should be sought from them and pursued in litigation, and whether there 

was probable cause to believe that others committed FECA violations. 

Making public appellants’ identities allows the public to understand the 

Commission’s applications of federal campaign finance law and promotes 

accountability, consistent with FECA’s requirement that the Commission make 

public any “determination that a person has not violated” the Act. 52 U.S.C. 

§ 30109(a)(4)(B)(ii). The FEC’s regulation interpreting section 30109(a)(4)(B)(ii)

to apply to any no reason to believe or probable cause to believe finding or other 

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termination of FEC proceedings and “the basis therefor,” 11 C.F.R. § 111.20(a), 

and disclosure policy making public certain enforcement documents naming 

appellants “because they play a critical role in the resolution” of such matters, FEC 

Disclosure Policy, 81 Fed. Reg. at 50703, are reasonable and appropriate. Such 

disclosure also ensures that challenges to the FEC’s decisions brought under 

section 30109(a)(8)’s provision for judicial review of agency enforcement matters 

can be litigated in open court, as they have been for decades. And because it takes 

judicial guidance, including AFL-CIO, 333 F.3d 168, into account, disclosure is 

permissible. Release of appellants’ identities thus is reasonable and not arbitrary 

or capricious. 

A. The Commission Has the Authority to Adopt Its Disclosure

Policy, as Well as 11 C.F.R. § 111.20

When Congress delegates rule-making authority to an agency to implement 

a statute, that statute’s silence or ambiguity as to a specific issue demonstrates 

Congress’s intent, express or implied, to authorize that agency to reasonably 

interpret the statute it administers as to that issue. Nat’l Cable & Telecomms. 

Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005) (“[A]mbiguities in 

statutes within an agency’s jurisdiction to administer are delegations of authority 

to the agency to fill the statutory gap in reasonable fashion.”); Nat’l Cable & 

Telecomms. Ass’n v. Gulf Power Co., 534 U.S. 327, 339 (2002) (“[A]s a general 

rule, agencies have authority to fill gaps where the statutes are silent.”). 

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Congressional silence in FECA, as well as the ambiguities therein, demonstrate 

that Congress entrusted the FEC to reasonably interpret and implement FECA and 

achieve the goals set forth therein. As the Court has held, the Commission’s 

“express authorization to elucidate statutory policy in administering FECA 

‘implies that Congress intended the FEC . . . to resolve any ambiguities in 

statutory language,’” and so “‘the FEC’s interpretation of the Act should be 

accorded considerable deference.’” United States v. Kanchanalak, 192 F.3d 1037, 

1049 (D.C. Cir. 1999) (citation omitted); see also Orloski v. FEC, 795 F.2d 156, 

164 (D.C. Cir. 1986). 

1. The FEC Has Authority to Establish Its Disclosure Policy

Appellants claim that, merely because 52 U.S.C. § 30109(a)(4)(B)(ii) 

affirmatively requires disclosure of conciliation agreements and determinations of 

non-violation, the Commission is prohibited from disclosing anything else under 

its current disclosure policy. (Br. at 30, 32-34.) This claim is meritless. 

The plain language of section 30109(a)(4)(B)(ii) and its context demonstrate 

that Congress did not unambiguously forbid disclosure of the information at issue 

here. The provision itself includes no such prohibition. Crucially, and contrary to 

appellants’ claim (Br. at 32), while section 30109(a)(4)(B)(ii) specifies that a 

conciliation agreement or a determination that a person has not violated FECA 

“shall” be made public by the Commission, it nowhere says that these are these are 

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only things that may be disclosed upon the completion of a MUR. 52 U.S.C. 

§ 30109(a)(4)(B)(ii).

Furthermore, FECA sections 30109(a)(4)(B)(i) and 30109(a)(12)(A)4

demonstrate that, when Congress intended to prohibit the FEC from disclosing 

certain information, it did so explicitly. For this reason, Albany Engineering v. 

FERC, 548 F.3d 1071 (D.C. Cir. 2008), which appellants rely upon (Br. at 34), 

actually undercuts their argument. In that case, this Court held that, because “the 

certainty of other costs was as plain as plain could be, Congress’s express 

provision for [reimbursement of] three types [of costs] could hardly leave room” 

for the agency to require reimbursement of an unspecified type of cost. Albany 

Eng’g, 548 F.3d at 1075. Here, when Congress founded the FEC in 1974, it was 

well-established that Congress required all agencies “to adhere to a general 

philosophy of full agency disclosure.” U.S. Dep’t of Justice v. Tax Analysts, 492 

U.S. 136, 142 (1989) (internal quotation marks omitted). It thus was “as plain as 

plain could be” that information not specifically prohibited from disclosure by 

Congress would be — as Congress intended — presumptively disclosable. 

4

 The district court soundly rejected appellants’ argument below that the 

disclosures at issue fell within section 30109(a)(12)(A), as contrary to binding 

D.C. Circuit precedent. (J.A. 551 (citing AFL-CIO, 333 F.3d at 174).) Appellants

have now abandoned this argument on appeal. Fox v. Gov’t of D.C., 794 F.3d 25,

29 (D.C. Cir. 2015) (issues not raised on appeal are forfeited).

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Congress’s failure to specifically prohibit disclosure of the information at issue 

here thus indicates that Congress intended that information to be presumptively 

disclosable, not prohibited from disclosure as appellants contend. 

The FEC, like most agencies, must determine the procedures for the 

maintenance of its records. 52 U.S.C. §§ 30106(e), 30107(a)(8); 5 U.S.C. §§ 301, 

552. By requiring the FEC to affirmatively disclose certain information and

specifically barring certain other information from disclosure in FECA — while at 

the same time mandating a presumption of agency openness generally — Congress 

left the quintessential “gap” for the FEC to fill regarding any information falling 

outside of these categories. Chevron, 467 U.S. at 843-44 (“If Congress has 

explicitly left a gap for the agency to fill, there is an express delegation of authority 

to the agency to elucidate a specific provision of the statute by regulation.”). The 

cases appellants cite do not demonstrate otherwise. (Br. at 27 (citing Marlow v. 

New Food Guy, Inc., 861 F.3d 1157, 1163 (10th Cir. 2017) (recognizing that an 

agency has discretionary authority when it has a duty to act but there are “gaps in 

the instructions” on how to do so)).) Indeed, this Court confirmed in AFL-CIO that 

the FEC may make disclosures of exactly the type at issue here, observing that the 

governmental interests in deterrence and promoting accountability “may well 

justify releasing more information than the minimum disclosures required by 

section [30109](a).” 333 F.3d at 179. As this Court noted, the Commission’s 

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construction of FECA to permit the agency to disclose more than the items 

specifically addressed in the statute was a longstanding procedural policy predating 

even its original disclosure regulations, and “Congress took no action to 

disapprove the regulation when the agency submitted it for review pursuant to [52 

U.S.C. § 30111(d)].” Id. at 175.5

Appellants argue that Congress did not give the FEC the express or implied 

authority to make disclosure decisions (Br. at 34), but this is plainly incorrect. 

Congress gave the agency the “primary and substantial responsibility for 

administering and enforcing [FECA],” “extensive rulemaking and adjudicative 

powers,” and the authority to “formulate general policy with respect to the 

administration of [the] Act.” Buckley v. Valeo, 424 U.S. 1, 109, 110 (1976) (per 

curiam). And when Congress did so, it was well-established that “[g]rants of 

agency authority comparable in scope . . . have been held to authorize public 

disclosure of information . . . , as the agency may determine to be proper upon a 

balancing of the public and private interests involved.” F.C.C. v. Schreiber, 381 

U.S. 279, 291-92 (1965); see also F.T.C. v. Anderson, 631 F.2d 741, 746 (D.C. Cir. 

1979) (“The agency’s discretion in regard to procedural rules includes discretion in 

5 Accord EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 600 n.17 

(1981) (“In the 15 years during which the [EEOC] has consistently allowed limited 

disclosure to the charging party, Congress has never expressed its disapproval, and 

its silence in this regard suggests its consent to the Commission’s practice.”).

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such matters as publicity and disclosure.”). Section 30109(a)(4)(B)(ii) and the 

larger context of FECA itself thus reveal that Congress intended to commit the 

public disclosure of information not explicitly required or forbidden to the 

agency’s sound discretion. 

2. Because Section 30109(a)(4)(B)(ii) Is Ambiguous, Congress

Authorized the FEC to Reasonably Interpret It

Appellants nevertheless argue that FECA’s mandatory disclosure 

requirement of “a determination that a person has not violated this Act,” 52 U.S.C. 

§ 30109(a)(4)(B)(ii), unambiguously applies only to a decision made by four or

more Commissioners that a person is actually innocent. (Br. at 32-33.) And that, 

therefore, the FEC does not have the authority to reasonably interpret this 

provision. (Id.) In so arguing, however, appellants impermissibly ignore this 

provision’s broader position within FECA. 

As the Supreme Court has explained, “when deciding whether [statutory] 

language is plain, we must read the words in their context and with a view to their 

place in the overall statutory scheme.” King v. Burwell, 135 S. Ct. 2480, 2489 

(2015) (internal quotation marks omitted). The Court’s “duty, after all, is to 

construe statutes, not isolated provisions.” Id. (internal quotation marks omitted). 

When determining whether section 30109(a)(4)(B)(ii) is ambiguous, the Court thus 

must consider that provision’s context within FECA’s larger statutory scheme. 

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In context, what precisely constitutes a “determination that a person has not 

violated the Act,” 52 U.S.C. § 30109(a)(4)(B)(ii), is ambiguous. As this Court has 

recognized, “unlike other agencies — where deadlocks are rather atypical — [the] 

FEC will regularly deadlock as part of its modus operandi.” Public Citizen, Inc. v. 

FERC, 839 F.3d 1165, 1171 (D.C. Cir. 2016). Because the “FEC cannot 

investigate complaints absent majority vote,” “the statute compels [the] FEC to 

dismiss complaints in deadlock situations.” Id. at 1170. Accordingly, this Court 

has rejected the argument that Commission action caused by the lack of a majority 

vote “decides nothing.” Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 

1131, 1133 (D.C. Cir. 1987) (“DCCC”); see also Public Citizen, 839 F.3d at 1170-

71 (distinguishing FECA from other organic statutes because Commission 

“decisions” resulting from a split vote of Commissioners fully and finally resolve 

an FEC enforcement matter); FEC v. Nat’l Republican Senatorial Comm., 966 

F.2d 1471, 1476 (D.C. Cir. 1992). Reading section 30109(a)(4)(B)(ii) in context, it

thus is ambiguous whether a “determination” encompasses agency action resulting 

from an absence of four votes to proceed. Cf. Navistar, Inc. v. Jackson, 840 F. 

Supp. 2d 357, 364 (D.D.C. 2012) (deferring to an agency’s interpretation of what 

constitutes a “determination” under a statute it enforces). 

Nor can section 30109(a)(4)(B)(ii) be read, in context, to be unambiguously 

limited to only determinations of actual innocence, as appellants argue. (Br. at 33, 

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40-41.) Appellants’ view depends upon an improper effort to interpret

“determination” in isolation and a refusal to “look at the word’s function within the 

broader statutory context.” Abramski v. United States, 134 S. Ct. 2259, 2267 n.6 

(2014). Section 30109(a)(4)(B)(ii) is part of a broader enforcement regime 

whereby by all dismissal decisions, regardless of whether that dismissal results 

from a split decision and regardless of the Commission’s dismissal rationale, are 

subject to judicial review. 52 U.S.C. § 30109(a)(8); DCCC, 831 F.2d at 1132. 

Appellants nonetheless argue that section 30109(a)(4)(B)(ii) is 

unambiguously limited to determinations of actual innocence because a 

Commission decision against finding reason-to-believe or probable-cause 

“clear[s]” a respondent of wrongdoing. (Br. at 41.) Appellants are incorrect. The 

Commission may not proceed for a variety of reasons, and some unanimous 

Commission rejections of a recommendation to find reason-to-believe are not 

strictly speaking the same as “a determination that a person has not violated” 

FECA, 52 U.S.C. § 30109(a)(4)(B)(ii). To the contrary, the Commission may 

explain that, while there is reason to believe or probable cause to believe a 

violation occurred, it is nonetheless dismissing the case for a variety of reasons, 

such as prosecutorial discretion. E.g., MURs 4317 & 4323, Huckabee Election 

Comm., Statement of Reasons, http://eqs.fec.gov/eqsdocsMUR/00003A0A.pdf 

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(unanimously voting to find probable cause but exercising prosecutorial discretion 

to take no further action). 

Nor are appellants correct that the purpose of section 30109(a)(4)(B)(ii) is to 

“lift[] a cloud of suspicion over the respondent” because “administrative 

complainants routinely publicize their claims.” (Br. at 40.) To the contrary, that 

provision applies equally to complaint-generated matters and internally-generated 

matters, and respondents in internally-generated matters cannot be publicly 

identified prior to resolution under section 30109(a)(12)(A). There is no cloud to 

lift in internally-generated matters. Appellants’ interpretation is thus not 

unambiguously compelled by the statute’s language. See Hibbs v. Winn, 542 U.S. 

88, 101 (2004) (“‘A statute should be construed so that effect is given to all its 

provisions, so that no part will be inoperative or superfluous, void or 

insignificant[.]’” (quoting 2A N. Singer, Statutes and Statutory Constr. § 46.06, pp. 

181-86 (rev. 6th ed. 2000))). Further, while CREW, the administrative

complainant in the underlying matter here, may have publicly announced the filing 

of its complaint (Br. at 40 n.9), the happenstance of such occurrences should not, 

and does not, affect the agency’s disclosure obligations and policies. 

Because section 30109(a)(4)(B)(ii) is ambiguous, the Commission has the 

authority to reasonably interpret it, which it has done in its disclosure policy and 11 

C.F.R. § 111.20.

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B. Disclosure of Appellants’ Identities Pursuant to the Commission’s

Carefully Tailored Disclosure Policy Is Reasonable

As the district court found (J.A. 560-63), the FEC’s intended disclosure of 

appellants’ identities under its disclosure policy is reasonable and should be 

sustained. Appellants do not contest that the documents containing their identities 

are required to be disclosed under the FEC’s current disclosure policy. This policy 

has been tailored in light of the agency’s experience and judicial guidance. After 

careful consideration, the Commission reasonably identified “several categories of 

documents integral to its decisionmaking process that will be disclosed upon 

termination of an enforcement matter.” FEC Disclosure Policy, 81 Fed. Reg. at 

50703. Disclosure of appellants’ identities, under that disclosure policy, readily 

satisfies the highly deferential standard of review that applies here. It is reasonable 

for the Commission to conclude that the public has a right to know the identities of 

the persons who not only undisputedly participated in the events that were the 

subject of a Commission investigation, but also who themselves were the subject 

of a Commission vote regarding whether there was reason to believe that they 

violated FECA. The Commission has considered the public and private interests 

involved and reasonably concluded that disclosure of documents including their 

names “tilts decidedly in favor of public disclosure, even if the documents reveal 

some confidential information.” Id. 

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An important part of FECA’s regime is its detailed statutory framework for 

enforcement — one which permits more disclosure and openness to scrutiny of 

legal determinations when enforcement matters are resolved than for other 

agencies. Congress ensured that the FEC’s constructions of FECA during the 

enforcement process would be open to public and judicial review. FECA’s judicial 

review provision for dismissal decisions is “unusual” in that it permits a private 

party to challenge legal interpretations when the Commission dismisses 

administrative complaints. Chamber of Commerce v. FEC, 69 F.3d 600, 603 (D.C. 

Cir. 1995). A decision not to enforce is normally unreviewable, Heckler v. 

Chaney, 470 U.S. 821, 831 (1985), but the only FEC decisions not to enforce that 

are unreviewable are those based on the agency’s prosecutorial discretion. Citizens 

for Responsibility & Ethics in Wash. v. FEC, No. 17-5049, -- F.3d --, 2018 WL 

2993249, at *3 (D.C. Cir. June 15, 2018). Although “[t]ypically, the decision not 

to prosecute insulates individuals who have been investigated but not charged from 

th[e] rather significant intrusion into their lives” occasioned by public scrutiny, 

Fund for Constitutional Gov’t v. Nat’l Archives & Records Serv., 656 F.2d 856, 

864 (D.C. Cir. 1981), Congress made a different policy choice regarding some 

such decisions in the area of campaign finance, AFL-CIO, 333 F.3d at 175.6

 

6

 This principle of openness relates generally to judicial review under 52 

U.S.C. § 30109(a)(8), but that provision establishes review only for Commission 

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In AFL-CIO, for example, the Court compared Congress’s approach to 

confidentiality in FEC investigations to that in grand jury proceedings. The Court 

found that, while targets of an ongoing FEC investigation may have “a strong 

confidentiality interest analogous to the interests of targets of grand jury 

investigations,” this “analogy breaks down once a Commission investigation 

closes.” 333 F.3d at 175 (internal quotation marks omitted). The Court reasoned 

that, while Congress decided to continue to protect the identity of “suspects 

exonerated by a grand jury,” “FECA expressly requires disclosure of ‘no violation’ 

findings.” Id. (citing Fed. R. Crim. P. 6(e)(6); 52 U.S.C. § 30109(a)(4)(B)(ii)). 

Thus, “[c]essante ratione legis cessat ipse lex (the rationale of a legal rule no 

longer being applicable, that rule itself no longer applies).” Zadvydas v. Davis, 

533 U.S. 678, 699 (2001) (internal quotation marks omitted). 

Plaintiffs’ reliance on U.S. Department of Justice v. Reporters Committee for 

Freedom of Press, 489 U.S. 749 (1989), involving the disclosure of rap-sheet 

information is inapt for the same reason. (Br. at 21-22.) In contrast to FECA’s 

enforcement regime, there is a “web of federal statutory and regulatory provisions 

that limit[] the disclosure of rap-sheet information.” Reporters Comm. For 

failures to act or “an order of the Commission dismissing a[n administrative] 

complaint.” The Commission has moved to dismiss CREW’s related lawsuit 

against the FEC, see supra pp. 7-8 n.3, because MUR 6920 resulted in a multiparty 

conciliation agreement, not an outright dismissal of the complaint. 

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Freedom of Press, 489 U.S. at 764-65. Under FECA, however, mandatory 

affirmative public disclosure of persons found to not have violated FECA is part of 

the statutory scheme. Thus, even if appellants are correct that the identity of an 

alleged criminal in a rap sheet may be “more about ‘one private citizen seeking 

information about another” (Br. at 22 (quoting Reporters Comm. For Freedom of 

Press, 489 U.S. at 773)), knowing the identity of those materially involved in 

investigated activity is appropriate and consistent with FECA’s accountability 

purpose. 

FECA’s judicial review provision demonstrates that public confidence in the 

Commission’s performance of its enforcement duties in a fair, consistent, and 

nonpartisan manner is necessary to FECA’s goal of preserving public faith in our 

electoral system. The FEC is nonpartisan inherently “in that no more than three of 

its six voting members may be of the same political party, § [30106](a)(1), and it 

must decide issues charged with the dynamics of party politics.” FEC v. 

Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981). To promote 

accountability of Commission investigations, the public must have access to the 

identities of persons who have been the subject of substantive dismissals of 

administrative complaints in order to confirm the FEC’s nonpartisan enforcement 

of FECA. Screening for partisanship is not permissible without identities. It is 

reasonable here for the Commission to conclude that the public has a right to know 

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the identities of persons found to be involved in a chain of events that led to a 

multiparty conciliation agreement and six-figure penalty, in which it was agreed 

that the respondents would no longer contest that their actions amounted to a 

violation of FECA’s straw donor provision. 

In arguing that their names add “nothing” to the public record (Br. at 29), 

appellants “hinge[] [their] argument on the mistaken premise that publicly 

releasing [their] names . . . would not shed light on how the government operates.” 

Edelman v. S.E.C., 239 F. Supp. 3d 45, 55 (D.D.C. 2017) (citation and internal 

quotation marks omitted); compare Citizens for Responsibility & Ethics in Wash. v. 

U.S. Dep’t of Justice, 746 F.3d 1082, 1092-93 (D.C. Cir. 2014) (holding that there 

was “a weighty public interest in shining a light on . . . the DOJ’s ultimate decision 

not to prosecute a prominent member of the Congress for any involvement he may 

have had” with public corruption for which others had been convicted); People for 

the Am. Way Found. v. Nat’l Park Serv., 503 F. Supp. 2d 284, 306 (D.D.C. 2007) 

(holding that “the public interest in knowing who may be exerting influence on 

[agency] officials . . . outweighs any privacy interest in one’s name”); Lardner v. 

U.S. Dep’t of Justice, Civ. No. 03-0180(JDB), 2005 WL 758267, at *18 (D.D.C. 

Mar. 31, 2005) (holding that “the considerable public interest in identifying the 

actors who are able to exert influence on the pardon application and selection 

process” outweighs the privacy interest in the names of individuals supporting 

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clemency applications); Judicial Watch of Fla., Inc. v. U.S. Dep’t of Justice, 102 F. 

Supp. 2d 6, 18 (D.D.C. 2000) (“Depriving the public of knowledge of the writer’s 

identity would deprive the public of a fact which could suggest that their Justice 

Department had been steered by political pressure rather than by the relevant facts 

and law.”); see also Baltimore Sun v. U.S. Marshals Serv., 131 F. Supp. 2d 725, 

729-30 (D. Md. 2001) (holding that “a valid public interest exists in the names” at

issue because this information “would enable the public to assess law enforcement 

agencies’ exercise” of discretion); cf. also Doe v. Pub. Citizen, 749 F.3d 246, 273 

(4th Cir. 2014) (“The public has an interest in knowing the names of the litigants, 

and disclosing the parties’ identities furthers openness of judicial proceedings.” 

(internal citations omitted)); Doe v. City of Chicago, 360 F.3d 667, 669 (7th Cir. 

2004) (“The concealment of a party’s name impedes public access to the facts of 

the case, which include the parties’ identity.”). 

Particularly where a central purpose of FECA is “provid[ing] the electorate 

with information as to where political campaign money comes from,” Buckley, 424 

U.S. at 66, and here where part of what will be disclosed is the funder of other 

persons deemed to have used the funds unlawfully, appellants’ request for 

anonymity is misplaced. Whether John Doe 2 was the “true source” for purposes 

of straw donor liability in 52 U.S.C. § 30122, does not change that John Doe 2’s 

provision of money shortly before the contribution at issue was a critical, closely 

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111.20(a)] is reasonable”). Rather, they make the much narrower argument that it 

cannot be reasonably construed to encompass them, directly or indirectly. (Br. at 

35-43.)

Appellants, however, cannot overcome the “exceedingly deferential” 

standard of review for the Commission’s interpretation of its own regulations, 

which requires affirmance unless the agency’s interpretation is “plainly erroneous 

or inconsistent with the regulation.” Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 

613 (2013) (internal quotation marks omitted); Br. at 31. As the district court 

correctly concluded, this case “fall[s] well within the provision of the regulation 

requiring disclosure in cases where the Commission ‘otherwise terminates 

proceedings.’” (J.A. 560-61 (quoting 11 C.F.R. § 111.20(a)). Here, section 

111.20(a) supports disclosure of appellants’ identities both as part of the disclosure 

of the basis for the decision reached as to the named respondents in MUR 6920 and 

as to the reason-to-believe proceedings regarding appellants themselves. 

Addressing the resolution of MUR 6920 as to the parties who conciliated 

first, it is neither plainly erroneous nor inconsistent with section 111.20(a) to 

construe this regulation to permit disclosure of information beyond that pertaining 

solely to named respondents, as appellants contend. (Br. at 36.) While appellants 

correctly note that “an agency interpretation . . . [i]s substantively invalid when it 

conflict[s] with the text of the regulation” (Br. at 31 (alterations in original; 

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internal quotation marks omitted)), that is not the case here. The district court 

correctly found that “the language of the regulation is not so narrow.” (J.A. 561.) 

Nor is it inconsistent with the regulation to disclose information pertaining to 

significant third parties. Even appellants recognize that, at a minimum, the 

conciliation agreement set forth the basis of the Commission’s final determination 

in MUR 6920. (See Br. at 39.) Yet that document discusses not only the role of 

the named respondents, but also the roles played by American Conservative 

Union’s former executive director Gregg Keller and the former sole manager 

officer and director of Government Integrity, LLC, Christopher W. Byrd. 

(Conciliation Agreement, 

https://www.fec.gov/files/legal/murs/6920/17044434756.pdf.) Particularly 

because artificial entities cannot act except through individual persons, disclosure 

of these individuals’ roles and the information that was obtained from them 

undoubtedly furthers the public’s knowledge of, and ability to assess the agency’s 

actions taken, on MUR 6920. Accordingly, appellants have not demonstrated that 

interpreting section 111.20(a) to permit disclosure of information about persons or 

entities other than the named respondents is itself plainly erroneous or inconsistent 

with the regulation. 

Nor is it plainly erroneous or inconsistent with the regulation to interpret 

section 111.20(a) to support the disclosure of appellants’ identities as part of the 

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Lastly, appellants argue that section 111.20(a) cannot be reasonably 

interpreted to apply to them directly. (Br. at 36-38.) Not so. First, appellants rely 

upon inapplicable regulations and policies to argue that, because the Commission 

never “initiated” proceedings against them, the Commission could not have 

terminated proceedings against them so as to trigger section 111.20(a)’s disclosure 

requirement. (Br. at 36-37.) But the Commission’s regulations could not be more 

plain that a new matter can be “initiated” not only “by a complaint,” but also based 

on “information ascertained by the Commission in the normal course of carrying 

out its supervisory responsibilities.” 11 C.F.R. § 111.3(a); see also 52 U.S.C. 

§ 30109(a)(2). The agency may thus consider whether there is reason to believe

that persons who had not been identified by name as respondents violated FECA 

during the course of carrying out an investigation of a complaint-generated matter. 

In MUR 6920, the Office of General Counsel obtained information upon which it 

recommended finding reason to believe appellants violated FECA and the 

Commissioners voted on that recommendation and issued statements of reasons. 

(J.A. 119-33; J.A. 135-37; J.A. 203-11.) Those steps constitute proceedings that 

were initiated and took place. Furthermore, and in contrast to appellants’ 

arguments (Br. at 5, 11), only “person[s] alleged” in an administrative “complaint 

to have committed such a violation” require notice prior to a reason-to-believe 

vote. 52 U.S.C. § 30109(a)(1). Other persons who the Commission generates for a 

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reason-to-believe vote do not. Id. § 30109(a)(2); 11 C.F.R. §§ 111.3(b), 111.8(a)-

(b). Proceedings against appellants thus were initiated and terminated,9

 and the 

Commission’s interpretation of its own regulation is reasonable. 

Accordingly, appellants have not demonstrated that applying 11 C.F.R. 

§ 111.20(a) to them directly is plainly erroneous or inconsistent with the regulation

under the applicable exceedingly deferential standard of review. 

III. FOIA EXEMPTION 7(C) DOES NOT PRECLUDE DISCLOSING

APPELLANTS’ IDENTITIES

A. FOIA Exemption 7(C) Is Not a Categorical Bar to the

Commission’s Disclosure of the Information Here

Appellants’ argument that FOIA exemptions operate as affirmative bars to 

disclosure was rejected by the Supreme Court in Chrysler Corp. v. Brown, 441 

U.S. 281 (1979). There, a private party sought to enjoin the agency from 

disclosing exempt information for a third party’s FOIA request, arguing in that socalled “reverse-FOIA” case that FOIA forbade agencies from releasing exempt 

information. Id. at 291. The Supreme Court rejected this argument, explaining 

that “the conclusion that [FOIA’s] exemptions impose affirmative duties on an 

agency to withhold information . . . is not supported by the language, logic, or 

9 As discussed above, appellants also err in arguing that the Commission took 

no “action” as to them because such reasoning has been squarely rejected by this 

Court. Supra p. 23; Citizens for Responsibility & Ethics in Wash., 2018 WL 

2993249, at *1. 

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history of the Act.” Id.; see also id. at 293 (“Congress did not design the FOIA 

exemptions to be mandatory bars to disclosure.”). The Court thus concluded that 

“FOIA is exclusively a disclosure statute” and “does not foreclose disclosure.” Id.

at 292; see also Bartholdi Cable Co. v. F.C.C., 114 F.3d 274, 282 (D.C. Cir. 1997) 

(“FOIA’s exemptions simply permit, but do not require, an agency to withhold 

exempted information from the public.”); Worthington Compressors, Inc. v. 

Costle, 662 F.2d 45, 54 (D.C. Cir. 1981) (“In the typical reverse-FOIA case, we 

should emphasize, the applicability of [a FOIA exemption] does not give the 

submitters a right to compel the agency to withhold the requested material.”). 

Neither SafeCard Services, Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) 

(“Safecard”), nor Nation Magazine, Wash. Bureau v. U.S. Customs Service, 71 

F.3d 885 (D.C. Cir. 1995) (“Nation Magazine”), upon which appellants principally

rely, call Chrysler Corp. into question. Unlike Chrysler Corp., which was a 

reverse-FOIA case, SafeCard and Nation Magazine were traditional FOIA cases, 

involving a request for information submitted to an agency by an outside party. In 

those cases, the Court merely recognized that, when responding to a third party’s 

FOIA request, an agency was permitted to categorically withhold certain names as 

exempt from FOIA’s disclosure requirements, rather than requiring the agency to 

provide more individualized proof to substantiate its withholding. Safecard, 926 

F.2d at 1206; Nation Magazine, 71 F.3d at 896. In neither case did this Court

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consider — much less hold — that FOIA categorically prohibits agencies from 

disclosing such information. Nor could they, as such a holding would contradict 

binding Supreme Court precedent.10 Appellants’ claim that the Commission is 

“categorically” prohibited (e.g., Br. at 20) from releasing their identities is 

incorrect. 

B. FEC Regulations Do Not Prohibit the Disclosures Here

Appellants next argue that FEC’s regulations bar the disclosure of the 

information here because they “expressly incorporate FOIA Exemption 7(C).” 

(Br. at 7, 22.) This argument is similarly without basis. Not only is it 

foundationally flawed with respect to the applicability of Exemption 7(C), for the 

reasons just discussed, but it is also erroneous even as to the particular FEC 

regulations appellants identify. 

Two of the three provisions appellants rely upon to substantiate their 

argument unambiguously apply only to the agency’s response to FOIA requests — 

not to the agency’s affirmative release of information. 11 C.F.R. § 4.1(c), (d); Br. 

10 For the same reason, appellants’ reliance upon two district court decisions is 

similarly misplaced. (See Br. at 23 (citing AFL-CIO v. FEC, 177 F. Supp. 2d 48 

(D.D.C. 2001), and Tripp v. U.S. Dep’t of Def., 193 F. Supp. 2d 229 (D.D.C. 

2002)).) The district court in AFL-CIO not only misconstrued Safecard’s holding, 

but also failed to address Chrysler Corp. In Tripp, the district court subsequently 

relied upon the lower court’s opinion in AFL-CIO, but did so only in dicta and 

prior to this Court’s AFL-CIO decision, which largely overturned it. 

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at 22-23 (citing 11 C.F.R. § 4.5(a)(7)(iii)); Br. at 7 (citing 11 C.F.R. § 4.4(b)). The 

information at issue here is being released under the Commission’s affirmative 

disclosure obligations, however, not in response to a FOIA request from a third 

party. (J.A. 57.) Thus, this is not a FOIA case, or even a true reverse-FOIA case, 

and sections 4.4(b) and 4.5(a)(7)(iii) do not apply. 

The third and final provision appellants point to is 11 C.F.R. § 5.4(a)(4) (see

Br. at 23), which provides that, under FECA, the Commission shall affirmatively 

disclose “[o]pinions of Commissioners rendered in enforcement cases and General 

Counsel’s Reports and non-exempt . . . investigatory materials[.]” 11. C.F.R. 

§ 5.4(a)(4). But this is the precise provision that this Court held was invalid in

AFL-CIO, 333 F.3d at 179. The Commission has since made clear that its 

affirmative disclosure obligations are governed by its current disclosure policy. 

FEC Disclosure Policy, 81 Fed. Reg. at 50703. 

In any event, the regulation plainly does not limit the disclosure of either 

Commissioner statements or General Counsel Reports to only those that are nonexempt, as “non-exempt” only modifies the last and separately-referenced category 

of documents termed “investigatory material.” 11 C.F.R. § 5.4(a)(4); see also 

Guam Indus. Servs., Inc. v. Rumsfeld, 383 F. Supp. 2d 112, 119 n.5 (D.D.C. 2005) 

(“[T]he conjunctive ‘and’ directs that the item preceding it and that succeeding it 

be different.”). Here, many of the redacted documents at issue are Commissioner 

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statements, as reflected in the certifications of their votes and their statements of 

reasons, or General Counsel’s Reports.11 Because these documents may be made 

public without redaction of appellants’ identities, disclosure of the remaining 

documents at issue in unredacted form is permitted. See Cottone v. Reno, 193 F.3d 

550, 554 (D.C. Cir. 1999) (“Under our public-domain doctrine, materials normally 

immunized from disclosure under FOIA lose their protective cloak once disclosed 

and preserved in a permanent public record.”). 

C. Because the Commission Has a Rational Basis for Disclosing

Appellants’ Identities, Appellants’ Purported Reverse-FOIA

Claim Must Fail.

Appellants cannot satisfy their burden to demonstrate that disclosure of their 

identities is arbitrary and capricious. “Unlike a typical FOIA case, in which the 

court would undertake its own analysis of the interests at stake, under th[e] 

deferential [arbitrary and capricious] standard of review, the court does not 

substitute its judgement for that of the [FEC].” Jurewicz, 741 F.3d at 1330-31 

(citations omitted). Instead, “[t]he standard mandates judicial affirmance if a 

11 Of the fourteen documents identified by appellants as containing redactions 

of their identities, nine are Commissioner statements or General Counsel’s 

Reports. (J.A. 93 (entries 3, 6-11, 13-14).) Of the remaining documents, three are 

merely Designations of Counsel containing no substantive information (id. (entries 

1, 4-5)), and the other two do not discuss allegations not already set forth in the 

opinions and reports (id. (entries 2, 12)). 

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rational basis for the agency’s decision is presented even though [the court] might 

otherwise disagree.” Envtl. Def. Fund, Inc., 657 F.2d at 283 (citations omitted). 

Under the highly deferential standard of review that governs judicial review 

in actions seeking to block agency disclosure of information, the FEC’s disclosure 

decision has a rational basis and thus must be affirmed. FOIA’s privacy protection 

is limited to only “personal” privacy and to only “unwarranted” or “clearly 

unwarranted” invasions of such privacy. 5 U.S.C. § 552(a)(2)(A), (b)(7)(c). As 

discussed below, as an artificial entity, John Doe 2 does not have any personal 

privacy rights under FOIA, and because any allegations against John Doe 1 were 

solely in his official capacity as trustee of John Doe 2, any privacy interests he may 

have are reduced, at best. 

1. The Commissioners’ Statement of Reasons and September

20, 2017 Vote Certification Are Subject to FOIA’s

Mandatory Disclosure Requirements

As a preliminary matter and in direct contravention of appellants’ claims, 

several of the key documents at issue here (J.A. 203-11 (statements of reasons) and 

J.A. 135-37 (vote certification)) are subject to FOIA’s mandatory disclosure 

requirement for “final opinions, including concurring and dissenting opinions, as 

well as orders, made in the adjudication of cases” and “final votes of each member 

in every agency proceeding.” 5 U.S.C. § 552(a)(2)(A), (a)(5); Bristol-Meyers Co. 

v. F.T.C., 598 F.2d 18, 25 (D.C. Cir. 1978) (holding that the commission’s

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explanation of its decision “to terminate an adjudicatory proceeding or not to 

include a proposed charge in a complaint” qualifies as a “final opinion” under 

section 552(a)(2)(A)). As such, FOIA Exemption 7(C) does not apply to them. 

See 1974 FOIA Amendments Conference Committee Report, S. Conf. Rep. 93-

1200, 93d Cong., 2d Sess. (1974), 1974 U.S.C.C.A.N. 6285, 6291. 

Notably, FOIA does not permit redactions due to personal privacy from final 

agency voting records, such as the Commission’s certifications here. 5 U.S.C. 

§ 552(a)(5). And while FOIA provides that an agency “may” redact information

from agency opinions and orders, it permits redaction only to “the extent required 

to prevent a clearly unwarranted invasion of personal privacy.” Id. § 552(a)(2). It 

further requires that, if an agency elects to redact such information, “in each case 

the justification for the deletion shall be explained fully in writing.” Id. 

As this Court has held, “[i]n addition to Congress’s general purpose to make 

disclosure the dominant practice and withholding the exception,” the “requirement 

that disclosure be ‘clearly unwarranted’ instructs us to ‘tilt the balance (of 

disclosure interests against privacy interests) in favor of disclosure.’” Wash. Post 

Co. v. U.S. Dep’t of Health & Human Servs., 690 F.2d 252, 261 (D.C. Cir. 1982) 

(citation omitted); see also Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 

37 (D.C. Cir. 2002) (holding that the “presumption favoring disclosure . . . is at its 

zenith” under the exemption for clearly unwarranted invasions of privacy). 

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2. As An Artificial Entity, John Doe 2 Does Not Have

“Personal” Privacy Rights

Appellants incorrectly assert that John Doe 2’s identity “implicates a privacy 

interest protected by” FOIA. (Br. at 26.) As the district court found (J.A. 562-63), 

FOIA’s protection for “personal privacy,” however, does not extend to 

corporations or other artificial entities like John Doe 2. AT&T Inc., 562 U.S. at 

403-09. While the Supreme Court’s holding in AT&T pertained only to

corporations, its analysis and rationale was not so limited. As the Supreme Court 

explained, “‘[p]ersonal’ ordinarily refers to individuals,” and “[w]e do not usually 

speak of personal characteristics, personal effects, [etc.] as referring to 

corporations or other artificial entities.” Id. at 403; see also id. at 406 (quoting 

Restatement (Second) of Torts § 652I, Comment c (1976)) (“A corporation, 

partnership or unincorporated association has no personal right to privacy.”)). This 

rationale applies equally to trusts, which are not natural persons, but are formally 

organized entities, with legally separate identities from their trustee(s) and 

beneficiaries, and trustee(s) act in a representational capacity. Although there may 

be differences between corporations and trusts, none of these differences imbue a 

trust with “personal” rights. Compare United States v. Harrison, 653 F.2d 359, 

361 (8th Cir. 1981) (holding that documents belonging to a small family trust are 

not “personal” documents protected against compulsory self-incrimination); Iowa 

Citizens for Cmty. Improvement v. U.S. Dep’t of Agric., 256 F. Supp. 2d 946, 952 

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n.10 (S.D. Iowa 2002) (doubting that a trust has privacy interests protected by

FOIA). Tellingly, appellants cite no authority in support of their claim that a trust 

is materially distinguishable in this context. 

Instead, relying on Multi Ag Media LLC v. Department of Agriculture, 515 

F.3d 1224 (D.C. Cir. 2008), appellants argue that “the Trust’s name presents a

substantial risk of identifying its trustee” and thus cannot be disclosed due to the 

trustee’s privacy rights. (Br. at 27.) Appellants are incorrect that the trustee’s 

name cannot be disclosed. See infra pp. 47-49. But even if they were correct, 

Multi Ag Media is wholly inapposite. In that typical FOIA case, the Court 

recognized that business records could potentially be subject to FOIA Exemption 6 

where the records contained “information easily traceable to an individual” and 

would “necessarily reveal” that individual’s personal, as opposed to business, 

information. 515 F.3d at 1228-29 (emphasis added). But in contrast to the 

situation in Multi Ag Media, here there is not any evidence in the record 

substantiating appellants’ assertion that disclosing John Doe 2’s name would cause 

“a substantial risk of identifying its trustee” (Br. at 27) — much less that John Doe 

2’s name would be “easily traceable” to John Doe 1 and “necessarily reveal” his 

personal information, 515 F.3d at 1228-29. As the party seeking to prevent 

disclosure, appellants have the burden of proof. Chiquita Brands Int’l, 805 F.3d at 

294.

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personal and family life, not business judgments and relationships.”).12 And the 

Court confirmed that “[t]his is so even if disclosure might tarnish someone’s 

professional reputation.” Wash. Post Co., 863 F.2d at 100. 

AFL-CIO itself did not hold otherwise, as appellants argue. (Br. at 25-26.) 

To the contrary, the Court there found that FOIA did “little to protect the First 

Amendment interests at issue,” and it was the First Amendment interests on which 

the Court based its decision. AFL-CIO, 333 F.3d at 178. If anything, AFL-CIO

thus undercuts appellants’ argument that the Court in that case recognized rights 

protected by FOIA. 

Nor is the instant case a situation where the documents would reveal that 

John Doe 1 was investigated for a crime, and thus the cases cited by appellants are 

inapposite. (See Br. at 25.) Rather, John Doe 1 was only discussed in FEC 

documents in his “official capacity” as trustee for John Doe 2. As is wellestablished, official-capacity suits are merely “another way of pleading an action 

against an entity of which [the trustee] is an agent.” Kentucky v. Graham, 473 U.S. 

159, 165-66 (1985) (internal quotation marks omitted); cf. FEC, Statement of 

Policy Regarding Treasurers Subject to Enf’t Proceedings, 70 Fed. Reg. 3, 4 (Jan. 

12 To the extent that the unpublished district court opinion from over 20 years 

ago appellants rely upon may have indicated otherwise (Br. at 26 (citing Alexander 

& Alexander Servs. v. SEC, Civ. No. 92-1112 (JHG), 1993 WL 439799 (D.D.C. 

Oct. 19, 1993)), it is in tension with the cited precedents of this Court. 

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3, 2005) (“In other words, an official capacity proceeding ‘is not a suit against the 

official but rather is a suit against the official’s office.’” (quoting Will v. Mich. 

Dep’t of State Police, 491 U.S. 58, 71 (1989))). 

As in Washington Post, the documents at issue do not reveal any intimate 

private facts about John Doe 1, nor do they personally implicate him in an alleged 

FECA violation. Accordingly, to the extent John Doe 1 has cognizable privacy 

rights here, they are, at best, diminished. See People for the Ethical Treatment of 

Animals v. Nat’l Inst. of Health, 745 F.3d 535, 545 (D.C. Cir. 2014) (holding that 

the researchers’ privacy interests were “diminished” where the documents would 

reveal an investigation of the organization overseeing them, rather than an 

investigation of them personally). 

* * *

In sum, the Commission has rationally and reasonably concluded that 

disclosing appellants’ identities furthers the significant public interests of 

disclosure and government accountability under FECA, which it has been charged 

to implement. Indeed, given that transparency is at the heart of both FECA and 

FOIA, it would be perverse to interpret FOIA to prevent disclosure in a manner 

that undermines the FEC’s “salutary interest in exposing its decision making to 

public scrutiny” (J.A. 563). See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 

214, 242 (1978) (holding that the “basic purpose of FOIA is to ensure an informed 

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citizenry, vital to the functioning of a democratic society, needed to check against 

corruption”). 

IV. THE FIRST AMENDMENT DOES NOT BAR DISCLOSURE OF

APPELLANTS’ IDENTITIES

As the district court correctly found, disclosure of appellants’ identities

under the Commission’s carefully tailored disclosure policy readily survives First 

Amendment review. (J.A. 554-59.) Because disclosure “‘do[es] not prevent 

anyone from speaking,’” courts apply “exacting scrutiny” to disclosure 

requirements, which “‘requires a ‘substantial relation’ between the disclosure 

requirement and a ‘sufficiently important’ governmental interest.’” Doe v. Reed, 

561 U.S. 186, 196 (2010) (quoting Citizens United v. FEC, 558 U.S. 310 (2010)). 

The FEC’s disclosure policy serves important accountability and deterrence 

interests in a manner that is substantially related to providing the public with the 

documents that “play[ed] a critical role in the resolution of a matter.” FEC 

Disclosure Policy, 81 Fed. Reg. at 50703. Disclosure of appellants’ identities in 

the documents at issue furthers these important government interests. Particularly 

because the First Amendment interests appellants have alleged are tenuous, at best, 

disclosure of their identities is constitutional under the First Amendment. 

A. Appellants’ Alleged First Amendment Interests Are Insubstantial

In the district court, appellants did not dispute that they participated in the 

events that were the subject of the Commission’s investigation 

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court correctly concluded (J.A. 557), such reputational damage is not protected by 

the First Amendment. Paul v. Davis, 424 U.S. 693, 713 (1976). In Davis, the 

respondent argued that the government publicly naming him as an “active 

shoplifter” after he had been charged with shoplifting but prior to any 

determination of guilt and where the charges were subsequently dismissed violated 

his “right to privacy guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth 

Amendments.” 124 U.S. at 696, 712. The Supreme Court, however, refused to 

find a constitutional right of privacy based on the government’s decision to 

“publicize a record of an official act such as an arrest,” noting that “[n]one of our 

substantive privacy decisions hold this or anything like this.” Id. at 713. 

Accordingly, appellants’ generalized and unsupported “First Amendment 

Interest[s]” (Br. at 47) and constitutional claims of privacy are insubstantial, at 

best.

B. Disclosure of Appellants’ Identities Does Not Impermissibly

Infringe on Appellants’ First Amendment Rights, If Any

Even if the Court assumes appellants have First Amendment privacy 

interests they may assert in this context, such interests do not rise to the level of 

requiring the FEC to withhold their identities indefinitely. As the district court 

correctly found, “the constitutional issue has already been decided in the [FEC’s] 

favor.” (J.A. 558; id. at 558-59 (explaining that the burdens of disclosure in the 

campaign finance context survive heightened constitutional scrutiny).) In contrast 

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to appellants’ “insubstantial privacy concerns” (J.A. 563), the FEC’s 

acknowledged interests in accountability and deterrence from disclosure 

undoubtedly “reflect[s] the seriousness of the actual burden” on appellants from 

disclosure of their identities. Reed, 561 U.S. at 196 (internal quotation marks 

omitted). Because the FEC’s policy is carefully calibrated to take into account 

public informational interests, the agency’s own accountability, and the privacy 

interests that arise during the processing of administrative enforcement matters, 

disclosure of appellants’ identities pursuant to that policy is permissible under the 

First Amendment. 

As appellants acknowledge, this Court previously recognized that the 

Commission’s interests in public accountability and deterrence constitute valid 

governmental interests for the agency’s disclosure of its enforcement matters under 

the First Amendment. AFL-CIO, 333 F.3d at 178 (stating that “we have no doubt 

that these interests are valid”); Br. at 46, 54 (recognizing that the AFL-CIO court 

“identif[ied] deterring future violations and promoting Commission accountability 

as valid governmental interests in disclosure” (internal quotation marks omitted)). 

Rather than casting doubt on those interests, the Court took issue only with the 

FEC’s “fail[ure] to tailor its disclosure policy to avoid unnecessarily infringing . . . 

First Amendment rights.” AFL-CIO, 333 F.3d at 175. But the agency has since 

cured that problem by explicitly balancing those interests in a reasonable way. 

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these things constitute harassment. Compare 5 U.S.C. § 552(a)(2)(A) (requiring 

publication of dissenting opinions); Nat’l Ass’n for Advancement of Colored 

People v. State of Ala. ex rel. Patterson, 357 U.S. 449, 462 (1958) (in which the 

NAACP “made an uncontroverted showing that on past occasions revelation of the 

identity of its rank-and-file members has exposed these members to economic 

reprisal, loss of employment, threat of physical coercion, and other manifestations 

of public hostility”); Buckley, 424 U.S. at 69-71 (rejecting minor party’s challenge 

because “no appellant [had] tendered record evidence of the sort proffered in 

NAACP v. Alabama,” and so had failed to make the “[r]equisite [f]actual 

[s]howing”); see also J.A. 559 (rejecting notion that appellants will face

harassment or reprisal). 

While appellants attack the validity of the FEC’s deterrence interest as 

applied to them (Br. at 44, 54-55), the Court can sustain disclosure solely based on 

the Commission’s obvious and concededly valid accountability interest alone. See 

supra pp. 28-32 (discussing the FEC’s accountability interests). But appellants’ 

challenge to the FEC’s deterrence interest is also unfounded. While appellants 

may prefer to think of themselves as “hav[ing] been cleared of wrongdoing” (Br. at 

54 (quoting AFL-CIO, 333 F.3d at 178)), this view is misperceived. Two 

Commissioners voted in favor of finding reason to believe appellants violated 

FECA. And the three Commissioners who voted against finding reason to believe 

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appellants violated FECA did not reach any conclusion regarding whether 

appellants may have violated FECA. Rather, two of those Commissioners 

explained that they did so vote as a matter of prosecutorial discretion in the 

investigation and handling of MUR 6920 because of procedural, fair notice, and 

statute of limitations concerns, and in the larger context of concluding an important 

settlement. (J.A. 208-11.) 

Contrary to appellants’ repeated claims that the FEC simply wants to “name 

and shame” the blameless (e.g., Br. at 2), the purposes of disclosing appellants’ 

identities does not include deterring lawful activity, but does include providing the 

regulated community with a full picture of the actions that led to numerous parties’ 

conciliation with the agency and payment of a substantial penalty. Appellants 

cannot ignore that

 that John Doe 2 provided funds used for a contribution the 

Commission found was unlawful, that some Commissioners believed there was 

reason to believe that appellants themselves violated FECA, and that other 

Commissioners who voted against finding reason to believe did so not because they 

reached a conclusion regarding whether appellants’ conduct was lawful, but due to 

other considerations. Appellants’ identities provides a complete picture of the 

actions and relationships that led

thus 

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furthers the Commission’s “valid” interests in deterrence. AFL-CIO, 333 F.3d at 

178. Disclosure of appellants’ identities is constitutional.

CONCLUSION

For the foregoing reasons, the Commission respectfully requests that the 

district court’s judgment be affirmed. 

Respectfully submitted, 

Lisa J. Stevenson 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Charles Kitcher 

Acting Assistant General Counsel 

ckitcher@fec.gov 

June 18, 2018 

Robert W. Bonham III 

Senior Attorney 

rbonham@fec.gov 

/s/ Haven G. Ward________ 

Haven G. Ward 

Attorney 

hward@fec.gov 

FEDERAL ELECTION 

COMMISSION 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT, 

TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS

I hereby certify, on this 18th day of June, 2018, that: 

1. This document complies with the word limit of Fed. R. App. P. 32(a)(7)

because, excluding the parts of the document exempted by Fed. R. App.

32(f) and Circuit Rule 32(e), this document contains 12,967 words.

2. This document complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type-style requirements of Fed. R. App. 32(a)(6) because

this document has been prepared in a proportionally spaced typeface using

Microsoft Word 2013 in a 14-point Times New Roman font.

/s/ Haven G. Ward

Haven G. Ward 

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CERTIFICATE OF SERVICE

I hereby certify that on this 18th day of June, 2018, I electronically filed the 

foregoing document with the Clerk of the United States Court of Appeals for the 

D.C. Circuit by using the Court’s CM/ECF system. All participants are registered 

CM/ECF users and will be served by the appellate CM/ECF system.

/s/ Haven G. Ward

Haven G. Ward

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