1

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

)

CENTER FOR COMPETITIVE POLITICS, )

)

Plaintiff, ) Civ. No. 14-970 (RBW)

)

v. )

) MOTION FOR 

FEDERAL ELECTION COMMISSION, ) SUMMARY JUDGMENT

)

Defendant. ) 

)

FEDERAL ELECTION COMMISSION’S MOTION FOR SUMMARY JUDGMENT

Defendant Federal Election Commission respectfully moves this Court for an order 

granting summary judgment to the Commission pursuant to Rule 56 of the Federal Rules of Civil 

Procedure and Local Rule 7(h). In support of this motion, the Commission is filing a 

Memorandum in Support of Its Motion for Summary Judgment, the Declaration of Robert M. 

Kahn, Defendant Federal Election Commission’s Statement of Material Facts as to Which There 

Is No Genuine Dispute, and a Proposed Order.

Respectfully Submitted,

Lisa J. Stevenson (D.C. Bar No. 457628)

Deputy General Counsel - Law

lstevenson@fec.gov

Kevin Deeley

Acting Associate General Counsel

kdeeley@fec.gov

Erin Chlopak (D.C. Bar No. 496370)

Acting Assistant General Counsel

echlopak@fec.gov

Case 1:14-cv-00970-RBW Document 7 Filed 07/28/14 Page 1 of 2
2

/s/ Steve N. Hajjar

Steve N. Hajjar

Attorney

shajjar@fec.gov

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463

(202) 694-1650 

Counsel for Defendant

Federal Election Commission

July 28, 2014

Case 1:14-cv-00970-RBW Document 7 Filed 07/28/14 Page 2 of 2
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

)

CENTER FOR COMPETITIVE POLITICS, )

)

Plaintiff, ) Civ. No. 14-970 (RBW)

)

v. )

)

FEDERAL ELECTION COMMISSION, ) MEMORANDUM

)

Defendant. ) 

)

FEDERAL ELECTION COMMISSION’S MEMORANDUM IN SUPPORT OF ITS 

MOTION FOR SUMMARY JUDGMENT

Lisa J. Stevenson (D.C. Bar No. 457628)

Deputy General Counsel - Law

lstevenson@fec.gov

Kevin Deeley

Acting Associate General Counsel

kdeeley@fec.gov

Erin Chlopak (D.C. Bar. No. 496370)

Acting Assistant General Counsel

echlopak@fec.gov

Steve Hajjar

Attorney

shajjar@fec.gov

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463

(202) 694-1650 

Counsel for Defendant

Federal Election Commission

July 28, 2014

Case 1:14-cv-00970-RBW Document 7-1 Filed 07/28/14 Page 1 of 36
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Table of Contents

Page

BACKGROUND .......................................................................................................................2

I. PARTIES .......................................................................................................................2

II. FEC ADMINISTRATIVE ENFORCEMENT PROCEDURES ...................................2

III. ADMINISTRATIVE COMPLAINT AND PROCEEDINGS IN MUR 6396 ..............5

IV. CCP’s FOIA REQUEST................................................................................................7

ARGUMENT.............................................................................................................................9

I. STANDARD OF REVIEW...........................................................................................9

II. THE JUNE 2011 FIRST GENERAL COUNSEL’S REPORT IS PRIVILEGED

AND NOT SUBJECT TO DISCLOSURE UNDER FOIA........................................10

A. The June 2011 Report is Privileged Under FOIA Exemption 5 ......................10

1. The Entire June 2011 Report is Privileged Attorney Work 

Product .................................................................................................11

2. The Entire June 2011 Report is Protected by the DeliberativeProcess Privilege..................................................................................14

B. Portions of the June 2011 Report Are Also Subject to FOIA 

Exemption 7(E)................................................................................................19

III. THE COMMISSION HAS NOT WAIVED ANY OF THE PRIVILEGES 

APPLICABLE TO THE JUNE 2011 REPORT..........................................................21

A. FEC Policy Regarding Disclosure of Certain Commission Documents..........22

B. The 2009 Policy Does Not Address Staff Recommendations That Are 

Withdrawn From Commission Consideration .................................................23

C. The 2009 Statement of Policy Is Not a Waiver ...............................................24

D. The 2009 Policy Is Not Binding ......................................................................25

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IV. THE COMMISSION FULFILLED ITS LEGAL OBLIGATIONS IN NOTIFYING

CCP OF THE DENIAL OF ITS ADMINISTRATIVE APPEAL .............................27

CONCLUSION........................................................................................................................28

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Table of Authorities

Page

Cases

Access Reports v. Dep’t of Justice, 926 F.2d 1192 (D.C. Cir. 1991).................................11, 15

ACLU v. U.S. Dep’t of Def., 628 F.3d 612 (D.C. Cir. 2011).....................................................9

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003) .............................................................22, 24

Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504 (D.C. Cir. 2011) ...........19

Anguimate v. U.S. Dep’t of Homeland Sec., 918 F. Supp. 2d 13 (D.D.C. 2013).....................10

Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312 (D.C. Cir. 2006) .............10

Batterton v. Marshall, 648 F.2d 694 (D.C. Cir. 1990) ............................................................26

Blackwell v. FBI, 646 F.3d 37 (D.C. Cir. 2011) ......................................................................20

Bowne of New York City, Inc. v. AmBase Corp., 150 F.R.D. 465 (S.D.N.Y. 1993)................25

Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521 (D.C. Cir. 2011).................................9

Buckley v. Valeo, 424 U.S. 1 (1976)..........................................................................................2

Chamber of Commerce v. U.S. Dep’t of Labor, 174 F.3d 206 (D.C. Cir. 1999).....................26

Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980)............11, 17, 18

Davis v. Dep’t of Justice, 970 F. Supp. 2d 10 (D.D.C. 2013)..............................................9, 10

Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) ...........10 

Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001).....................18

Elec. Frontier Found. v. Dep’t of Justice, 739 F.3d 1 (D.C. Cir. 2014) petition for cert. filed, 82 

U.S.L.W. 3736 (U.S. Jun. 9, 2014) (No. 13-1474)............................................................16, 17

FEC v. Craig for U.S. Senate, 933 F. Supp. 2d 111 (D.D.C. 2013)........................................12

FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480 (1985) ...............................4

FEC v. Novacek, 739 F. Supp. 957 (N.D. Tex. 2010) .............................................................12

Case 1:14-cv-00970-RBW Document 7-1 Filed 07/28/14 Page 4 of 36
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FEC v. Republican Senatorial Comm. v. FEC, 966 F.2d 1471 (D.C. Cir. 1992)....................27

Heggestad v. Dep’t of Justice, 182 F. Supp. 2d 1 (D.D.C. 2000)................................ 12-13, 17

Hickman v. Taylor, 329 U.S. 495 (1947).................................................................................11

Herron for Congress v. FEC, 903 F. Supp. 2d 9 (D.D.C. 2012).............................................12

In re Apollo Group, Inc. Sec. Litig., 251 F.R.D. 12 (D.D.C. 2008).........................................15

In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997)...................................................................18

Jordan v. Dep’t of Justice, 591 F.2d 753 (D.C. Cir. 1978)......................................................14

Judicial Watch v. Dep’t of Justice, 432 F.3d 366 (D.C. Cir. 2005).........................................13

Judicial Watch v. FDA, 449 F.3d 141 (D.C. Cir. 2006) ............................................................5

Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939 (Ct. Cl. 1958).............14

Kishore v. Dep’t of Justice, 575 F. Supp. 2d 243 (D.D.C. 2008) ............................................11

Mapother v. Dep’t of Justice, 3 F.3d 1533 (D.C. Cir. 1982).............................................18, 19

Mead Data Central, Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242 (D.C. Cir. 1977).............11

Nader v. FEC, 823 F. Supp. 2d 53 (D.D.C. 2011)...................................................................12

NLRB v Sears, Roebuck & Co., 421 U.S. 132 (1975)........................................................16, 19

Pacific Gas & Elec. Co. v. Fed. Power Comm’n, 506 F.2d 33 (D.C. Cir. 1974)....................26

Public Citizen v. Dep’t of State, 100 F. Supp. 2d 10 (D.D.C. 2000) .......................................11

Public Citizen v. FEC, No. 14-148 (RJL) (D.D.C. Jan. 31, 2014) ..........................................12

Public Emps. for Envtl. Responsibility v. U.S. Section, Int’l Boundary and Water Comm’n,

740 F.3d 195 (D.C. Cir. 2014).....................................................................................20

Rockwell Int’l Corp. v. Dep’t of Justice, 235 F.3d 598 (D.C. Cir. 2001)................................25

Russell v. Dep’t of the Air Force, 682 F.2d 1045 (D.C. Cir. 1982).........................................14

SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991)...............................................10

Case 1:14-cv-00970-RBW Document 7-1 Filed 07/28/14 Page 5 of 36
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Schiller v. NLRB, 964 F.2d 1205 (D.C. Cir. 1992), abrogated on other grounds by Milner v. 

Dep’t. of Navy, __ U.S. __, 131 S. Ct. 1259 (2011) ................................................................12

Syncor Int’l Corp. v. Shalala, 127 F.3d 90 (D.C. Cir. 1990)...................................................26

Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997)..........................................................15, 19

Tennenbaum v. Deloitte & Touche, 77 F.3d 337 (9th Cir. 1996) ............................................25

United States v. Deloitte LLP, 610 F.3d 129 (D.C. Cir. 2010)................................................25

United States v. Exxon Corp., 87 F.R.D. 624, 636 (D.D.C. 1980). .........................................14

Upjohn Co. v. United States, 449 U.S. 383 (1981)..................................................................11

Wolfe v. Dep’t of Health & Human Servs., 839 F.2d 768 (D.C. Cir. 1988) ............................14

Statutes, Rules and Regulations

Federal Election Campaign Act of 1971, 2 U.S.C. §§ 431-57...................................................2

2 U.S.C. § 432............................................................................................................................6

2 U.S.C. § 433............................................................................................................................6

2 U.S.C. § 434............................................................................................................................6

2 U.S.C. § 437c(c)..............................................................................................................15, 16

2 U.S.C. § 437c(b)(1)............................................................................................................2,15

2 U.S.C. § 437d(a) .....................................................................................................................2

2 U.S.C. § 437d(a)(6).................................................................................................................2

2 U.S.C. § 437d(a)(7).................................................................................................................2

2 U.S.C. § 437d(a)(8).................................................................................................................2

2 U.S.C. § 437d(e) ...............................................................................................................2, 12

2 U.S.C. § 437f ..........................................................................................................................2

2 U.S.C. § 437g................................................................................................................1, 2, 12

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2 U.S.C. § 437g(a)(1).................................................................................................................2

2 U.S.C. § 437g(a)(2).............................................................................................................2, 3

2 U.S.C. § 437g(a)(3).............................................................................................................3, 4

2 U.S.C. § 437g(a)(4)(A)(i) .......................................................................................................4

2 U.S.C. § 437g(a)(5)(A)...........................................................................................................4

2 U.S.C. § 437g(a)(6).................................................................................................................2

2 U.S.C. § 437g(a)(6)(A).....................................................................................................4, 12

2 U.S.C. § 437g(a)(8)...................................................................................................12, 27, 28

2 U.S.C. § 437g(a)(8)(A)...........................................................................................................4

2 U.S.C. § 437g(a)(8)(C) ...........................................................................................................4

2 U.S.C. § 437g(a)(12)(A).......................................................................................................26

2 U.S.C. § 438(a)(8)...................................................................................................................2

5 U.S.C. § 552(a)(4)(B) ...........................................................................................................10

5 U.S.C. § 552(a)(6)(A)(i) .......................................................................................................27

5 U.S.C. § 552(a)(6)(A)(ii) ......................................................................................................27

5 U.S.C. § 552(b)(5) ................................................................................................................10

5 U.S.C. § 552(b)(7)(E) .......................................................................................................8, 19

5 U.S.C. § 552(a)(4)(F)(i)........................................................................................................27

26 U.S.C. § 501(c)(3).................................................................................................................2

11 C.F.R. § 111.16.....................................................................................................................4

11 C.F.R. § 111.18(d) ................................................................................................................4

Fed. R. Civ. P. 4(i).....................................................................................................................9

Fed. R. Civ. P. 4(i)(2) ................................................................................................................9

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Fed. R. Civ. P. 26(b)(3)............................................................................................................11

Miscellaneous

Statement of Policy Regarding Closure of Enforcement and Related Files, 

68 Fed. Reg. 70,423 (Dec. 20, 2003).........................................................21, 22, 23, 24

Statement of Policy Regarding Placing First General Counsel’s Reports on the Public Record, 

74 Fed. Reg. 66,132 (Dec. 14, 2009).......................................21, 22, 23, 24, 25, 26, 27

6 James Wm. Moore, et al., Moore’s Federal Practice § 26.70[6][c] (3d ed. 2004)....... 24-25

2 Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine

(5th ed. 2007)..............................................................................................................25

Statement of Reasons of Chairman Lee E. Goodman and Commissioners Caroline C. Hunter and 

Matthew S. Peterson in MUR 6396 (Jan. 8, 2014), available at

http://eqs.fec.gov/eqsdocsMUR/14044350970.pdf. ......................................................7 

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Plaintiff Center for Competitive Politics seeks an order requiring the Federal Election 

Commission to produce, under the Freedom of Information Act, a document containing initial 

legal analysis and recommendations from the Commission’s in-house lawyers, which the 

attorneys subsequently withdrew and revised, in an administrative enforcement matter that is 

now the subject of litigation. FOIA plainly does not require disclosure of such a privileged 

document; summary judgment should be granted to the Commission. 

In June 2011, attorneys in the Commission’s Office of General Counsel provided the 

Commission their legal analysis and recommendations regarding certain alleged violations of

federal campaign finance laws. Under the enforcement procedures mandated by the Federal 

Election Campaign Act, 2 U.S.C. § 437g, the administrative enforcement matter could — and 

did — lead to litigation. The Commission never approved or rejected the June 2011 legal 

guidance; before the Commission completed action on the matter, the Office of General Counsel

withdrew the document from Commission consideration and later submitted a revised legal 

analysis. Ultimately, three Commissioners voted to accept the recommendations in the later 

report and three Commissioners voted to reject them. 

The Center for Competitive Politics’s FOIA complaint asks this Court to order that the 

withdrawn June 2011 legal analysis be publicly disclosed. But the document is manifestly 

deliberative and predecisional, and was prepared by Commission attorneys for their client in 

anticipation of litigation. As such, it is plainly privileged and this Court should grant summary 

judgment to the Commission.

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BACKGROUND

I. PARTIES

The Federal Election Commission is an independent agency of the United States 

government with exclusive jurisdiction over the administration, interpretation, and civil 

enforcement of the Federal Election Campaign Act of 1971, 2 U.S.C. §§ 431-57 (“FECA” or 

“Act”). See generally 2 U.S.C. §§ 437c(b)(1), 437d(a), 437g. Congress authorized the 

Commission to “formulate policy” under FECA, see, e.g., 2 U.S.C. § 437c(b)(1), and to make 

rules and issue advisory opinions, 2 U.S.C. §§ 437d(a)(7), (8); 437f; 438(a)(8). See also Buckley 

v. Valeo, 424 U.S. 1, 110-11 (1976). The Commission is also authorized to institute 

investigations of possible violations of the Act, 2 U.S.C. § 437g(a)(1)-(2), and the agency has 

exclusive jurisdiction to initiate civil enforcement actions in the United States district courts, 

2 U.S.C. §§ 437c(b)(1), 437d(a)(6), 437d(e), 437g(a)(6).

According to its complaint, plaintiff Center for Competitive Politics (“CCP”) is an 

educational nonprofit corporation organized under 26 U.S.C. § 501(c)(3). (CCP Compl. ¶ 5.) 

CCP alleges that it regularly represents parties regulated by the Commission. (Id.)

II. FEC ADMINISTRATIVE ENFORCEMENT PROCEDURES

The Act permits any person to file an administrative complaint with the Commission 

alleging a violation of the Act. 2 U.S.C. § 437g(a)(1). Upon receipt of such a complaint, the 

Commission’s Office of General Counsel prepares a report to the Commission known as a 

General Counsel’s Report or GCR, which analyzes the allegations in the complaint, applies the 

relevant law to the facts alleged, and sets forth the Office of General Counsel’s recommendations

for Commission action. The first GCR in an enforcement Matter Under Review (“MUR”) 

usually includes a recommendation from the General Counsel’s Office that the Commission take 

Case 1:14-cv-00970-RBW Document 7-1 Filed 07/28/14 Page 10 of 36
3

one of the following actions regarding each alleged violation: (1) find reason to believe that a 

violation either occurred or is about to occur; (2) find no reason to believe; (3) dismiss the matter 

as an exercise of prosecutorial discretion; or (4) dismiss the matter with a cautionary message to 

the respondent regarding its legal obligations under the Act or Commission regulations. The first 

GCR also typically includes a separate proposed “Factual and Legal Analysis” for each 

respondent as to which the General Counsel’s Office is recommending Commission action. The 

proposed Factual and Legal Analysis generally sets forth draft factual and legal bases for the 

recommended Commission action. In matters in which the Commission accepts the 

recommendations in the General Counsel’s Report, the Commission may adopt the proposed 

Factual and Legal Analysis as its own.

Generally, if one or more Commissioners objects to a first General Counsel’s Report after 

it has been circulated to the Commission, or if fewer than four Commissioners vote to approve or 

reject the GCR’s recommendations by the voting deadline, the Commission considers the 

enforcement matter at a closed Commission Executive Session during which the Commission 

may, inter alia, discuss the Office of General Counsel’s recommendations and vote on whether 

there is “reason to believe” that a violation has occurred. 2 U.S.C. § 437g(a)(2). 

If at least four members of the Commission vote to find reason to believe a violation has 

occurred, the Commission ordinarily then investigates the allegations. Id. After the 

investigation, the General Counsel’s Office may recommend that the Commission find that there 

is “probable cause” to believe the Act has been violated. 2 U.S.C. § 437g(a)(3). The General 

Counsel’s Office must notify the respondents of its recommendation and provide them with a 

brief stating the Office’s position on the issues. Id. The respondents are then entitled to file a 

Case 1:14-cv-00970-RBW Document 7-1 Filed 07/28/14 Page 11 of 36
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responsive brief. Id. Next, the Office of General Counsel prepares a report to the Commission 

with further recommendations in light of the briefs and investigation. 11 C.F.R. § 111.16. 

If at least four members of the Commission vote to find probable cause to believe that a 

violation has occurred, 2 U.S.C. § 437g(a)(4)(A)(i), the Commission must first attempt to resolve 

the matter by “informal methods of conference, conciliation, and persuasion, and to enter into a 

conciliation agreement” with the respondents. Id. A conciliation agreement may require a 

respondent to pay a civil penalty “which does not exceed the greater of $5,000 or an amount 

equal to any contribution or expenditure involved.” 2 U.S.C. § 437g(a)(5)(A).1 If informal 

methods of conciliation fail, the Commission may, “upon an affirmative vote of 4 of its 

members,” file a de novo civil enforcement suit in federal district court. 2 U.S.C. 

§ 437g(a)(6)(A).

If the Commission dismisses a complaint at any stage in the administrative enforcement 

process, the complainant may seek judicial review of that determination in this District pursuant 

to 2 U.S.C. § 437g(a)(8)(A). If a reviewing judge declares that a Commission dismissal was 

“contrary to law,” the Court can order the Commission to conform to that declaration within 30 

days. 2 U.S.C. § 437g(a)(8)(C). If the Commission fails to conform to the declaration within 30 

days, the complainant may obtain a private right of action against the administrative respondents

for the alleged violations. Id.; FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 

488 (1985).

 1 Commission regulations also permit the agency to enter into a conciliation agreement 

with a respondent before finding probable cause. See 11 C.F.R. § 111.18(d). Any conciliation 

agreement reached prior to a finding of probable cause has the same force and effect of any other 

conciliation agreement. Id.

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III. ADMINISTRATIVE COMPLAINT AND PROCEEDINGS IN MUR 6396

On October 13, 2010, Public Citizen, ProtectOurElections.org, ProsperityAgenda.us, 

AmericanCrossroadsWatch.org, Kevin Zeese, and Craig Holman (collectively “Public Citizen”) 

filed an administrative complaint with the Commission alleging that Crossroads Grassroots 

Policy Strategies (“Crossroads”) violated the Act by failing to register as a political committee, 

file required disclosure reports, and comply with the organizational requirements of the Act. The 

Commission designated the matter as MUR 6396. Crossroads responded to the administrative 

complaint by denying that it qualified as a political committee and otherwise denying that it had 

violated FECA. (Compl. for Decl. & Inj. Relief, Public Citizen v. FEC, No. 14-148 (RJL), 

(D.D.C. Jan. 31, 2014) [Doc. #1] (“Public Citizen Compl.”) ¶¶ 37-38.) 

On June 21, 2011, the Office of General Counsel provided the Commission a First 

General Counsel’s Report for MUR 6396, which included an accompanying draft proposed 

Factual and Legal Analysis. (Kahn Decl. ¶¶ 11, 13.

2

) After the Office of General Counsel 

submitted the June 2011 report to the Commission, the document was circulated by the 

Commission Secretary for a Commission vote. (Id. ¶ 14.) Objections were made to the report 

and pursuant to a Commission directive, the pending enforcement matter was placed on the 

agenda for discussion by the Commission at an Executive Session on September 27, 2011. (Id.) 

The June 2011 report was discussed at the September 27 Commission Executive Session. 

(Id. ¶ 15.) Following that discussion but before the Commission made any determination 

regarding the recommendations in the report, the Office of General Counsel withdrew the report 

(including the attached draft proposed Factual and Legal Analysis) from Commission 

 2 The Commission submits the Kahn Declaration in lieu of a Vaughn index. See Judicial 

Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C. Cir. 2006) (“[A]n agency may even submit other 

measures in combination with or in lieu of the index itself.”). See infra pp. 7-8. 

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6

consideration. (Id.) The Commission never made any determination regarding its attorneys’ 

recommendations in the June 2011 report, and it never adopted the proposed Factual and Legal 

Analysis attached to that report. (Id.) 

On November 21, 2012, attorneys in the General Counsel’s Office provided a revised

First General Counsel’s Report to the Commission setting forth their analyses and 

recommendations regarding the allegations against Crossroads in MUR 6396. (Id. ¶ 16.) The 

Commission’s lawyers recommended that the Commission find reason to believe that Crossroads 

violated 2 U.S.C. §§ 432, 433, and 434 by failing to organize, register, and report as a political 

committee, and further recommended that the Commission authorize an investigation to 

determine whether there was probable cause to believe that Crossroads had violated the Act. 

(Public Citizen Compl. ¶ 44.) 

On December 3, 2013, the Commission voted on the Office of General Counsel’s

November 2012 recommendations. Three Commissioners voted to find reason to believe that 

Crossroads had violated FECA, approve the proposed Factual and Legal Analysis attached to the

November 2012 report, and authorize an investigation; and three Commissioners voted not to 

find reason to believe.

3

 (Public Citizen Compl. ¶¶ 4, 45.) The Commission then voted 

unanimously to close the file and the Commissioners thereafter issued “statements of reasons”

explaining their reasons for voting as they did. (Id. ¶¶ 4, 45-48.) In addition, the Commission 

publicly released the November 2012 First General Counsel’s Report, consistent with a general 

Commission policy of disclosing certain enforcement documents after an administrative 

enforcement matter has been closed. See infra pp. 22-23. The earlier analysis that the 

 3 CCP’s Complaint mistakenly alleges (Compl. ¶ 10) that “a majority of the FEC’s 

commissioners declined to find reason to believe” that Crossroads had violated FECA. 

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Commission’s attorneys provided to the Commission in June 2011 but then withdrew was not

publicly released.

4

 

IV. CCP’s FOIA REQUEST

On April 3, 2014, the Commission received a FOIA request from CCP seeking “an 

unredacted copy of the First General Counsel’s Report, dated June 22, 2011, in the matter of 

Crossroads Grassroots Policy Strategies (MUR 6396).” (Kahn Decl. ¶ 6; Letter from Allen 

Dickerson, CCP (Apr. 3, 2014), CCP Compl. Exh. A.)

On April 10, 2014, the Commission’s FOIA Requester Service Center (“FOIA Service 

Center”) denied CCP’s request, citing FOIA Exemption 5 for intra-agency memoranda that 

“would not be available by law to a party other than an agency in litigation with the agency.” 

(See Kahn Decl. ¶ 7; Email from Robert M. Kahn, FOIA Service Center (Apr. 10, 2014), CCP 

Compl. Exh. B.) The denial informed CCP that the “document you requested is subject to the 

privileges protected by Exemption 5, including the deliberative process privilege, attorney workproduct privilege, and/or attorney-client privilege.” (CCP Compl. Exh. B.) The FOIA Service 

Center further explained that portions of the requested document were also exempt from 

disclosure under FOIA Exemption 7(E), which protects from disclosure information in law 

enforcement records that “would disclose techniques and procedures for law enforcement 

 4 Commissioners Petersen and Hunter and Chairman Goodman issued a joint statement of 

reasons on January 8, 2014, explaining their reasons for not voting to find reason to believe that 

Crossroads had violated the Act. The three Commissioners attached to their statement a copy of 

the withdrawn June 2011 report including the accompanying proposed Factual and Legal 

Analysis attached to it. Because the withdrawn report and accompanying proposed Factual and 

Legal Analysis are privileged, see infra pp. 10-20, and the Commission has not waived any of 

the applicable privileges, see infra pp. 24-25, the portion of the statement of reasons attaching 

such privileged material was redacted in its entirety in the version of the statement of reasons 

released to the public. See Statement of Reasons of Chairman Lee E. Goodman and 

Commissioners Caroline C. Hunter and Matthew S. Peterson in MUR 6396 (Jan. 8, 2014),

available at http://eqs.fec.gov/eqsdocsMUR/14044350970.pdf. 

Case 1:14-cv-00970-RBW Document 7-1 Filed 07/28/14 Page 15 of 36
8

investigations or prosecutions, or would disclose guidelines for law enforcement investigations 

or prosecutions if such disclosure could reasonably be expected to risk circumvention of the 

law.” (See Kahn Decl. ¶ 7; CCP Compl. Exh. B (quoting 5 U.S.C. § 552(b)(7)(E)).) The 

response explained that the requested document “includes information concerning guidelines for 

law enforcement investigations or prosecutions that if disclosed could reasonably be expected to 

risk circumvention of the law, and thus the information is covered by Exemption 7(E).” (CCP 

Compl. Exh. B.) 

On April 29, 2014, CCP appealed the FOIA Service Center’s denial of the request

arguing that the record sought was not privileged under either FOIA Exemption 5 or 7(E). (CCP 

Compl. Exh. C.) CCP argued that the deliberative-process privilege did not apply to the 

withdrawn report because the Commission’s general policy in favor of publicly releasing First 

General Counsel’s Reports in closed enforcement matters suggested that the Commission’s 

lawyers should not have expected their advice and recommendations to be shielded from public 

disclosure. (See Letter from Allen Dickerson, CCP (Apr. 29, 2014), CCP Compl. Exh. C at 2.) 

CCP also disputed the applicability of the attorney work-product doctrine, arguing that the 

possibility of litigation — which is now pending, see infra. 12 — was “too remote” to invoke 

that privilege. (CCP Compl. Exh. C at 3.) And CCP argued that the attorney-client privilege 

“does not appear to apply” because the Commission’s general disclosure policy “eliminate[d] the 

expectation of confidentiality” upon which the attorney-client privilege relies. (Id. at 3.) 

In addition to disputing the applicability of any privileges, CCP asserted that “[i]t seems 

improbable” that the requested report did not contain any reasonably segregable, non-exempt 

information that could be produced under FOIA. (Id. at 4-5.) 

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9

On May 28, 2014, the Commission’s FOIA Service Center informed CCP that the 

Commission had “constructively denied” CCP’s appeal because the Commission “was unable to 

render an opinion on whether to approve or deny the appeal by a majority vote.” (See Email 

from Robert M. Kahn, FOIA Service Center (May 28, 2014), CCP Compl. Exh. E.)

CCP filed its complaint for declaratory and injunctive relief in this Court on June 9, 

2014.5

ARGUMENT

I. STANDARD OF REVIEW

FOIA matters are typically resolved on motions for summary judgment. Brayton v. 

Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). If an agency withholds 

responsive documents, it bears the burden of demonstrating the applicability of the claimed 

exemptions. ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011). 

The government meets its burden and merits summary judgment when it submits

declarations that demonstrate with adequate specificity the reason for the withholding and that 

“the information withheld logically falls within the claimed exemption.” Id. at 619; see also

Davis v. Dep’t of Justice, 970 F. Supp. 2d 10, 14 (D.D.C. 2013) (internal citation and quotation 

 5 CCP may have failed to properly serve the United States in this matter. Federal Rule of 

Civil Procedure 4(i), which governs service of process on an agency of the United States 

government, requires plaintiffs to serve the agency, the Attorney General, and the United States 

Attorney in the district where the action is brought with a “copy of the summons and of the 

complaint.” CCP served the United States Attorney and the Attorney General with a copy of the 

summons issued to the Federal Election Commission, but, as noted in the June 11, 2014 minute 

entry in the docket for this case, did not obtain or serve separate summonses issued to the United 

States Attorney or the Attorney General. It is unclear whether, as the docket entry suggests, Rule 

4 requires a plaintiff suing a federal agency to obtain a separate summons issued to each 

government entity for which service is required. See Fed. R. Civ. P. 4(i)(2) (providing that 

service on a federal agency requires service on the United States and delivery of “a copy of the 

summons and of the complaint by registered or certified mail to the agency”). If Rule 4(i) does 

require a plaintiff to obtain a separate summons for the agency, Attorney General, and United 

States Attorney, CCP has not properly served the United States in this matter.

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10

marks omitted) (“Summary judgment in a FOIA case may be based solely on information 

provided in an agency’s supporting affidavits or declarations if they are relatively detailed and 

non-conclusory . . . and when they describe the documents and the justifications for 

nondisclosure with reasonably specific detail, demonstrate that the information withheld 

logically falls within the claimed exemption, and are not controverted by either contrary 

evidence in the record [or] by evidence of agency bad faith.”).

“Agency affidavits submitted in the FOIA context are . . . ‘accorded a presumption of 

good faith.’” Anguimate v. U.S. Dep’t of Homeland Sec., 918 F. Supp. 2d 13, 17 (D.D.C. 2013) 

(quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). 

In a case brought under FOIA seeking to enjoin an agency from withholding agency 

records, the district court “shall determine the matter de novo.” 5 U.S.C. § 552(a)(4)(B); Dep’t 

of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989). 

II. THE JUNE 2011 FIRST GENERAL COUNSEL’S REPORT IS PRIVILEGED 

AND NOT SUBJECT TO DISCLOSURE UNDER FOIA

A. The June 2011 Report is Privileged Under FOIA Exemption 5

The Commission properly denied CCP’s FOIA request under Exemption 5 because the 

requested document is plainly covered by the attorney work-product and deliberative-process

privileges. FOIA Exemption 5 prevents disclosure of “inter-agency or intra-agency 

memorandums or letters which would not be available by law to a party other than an agency in 

litigation with the agency.” 5 U.S.C. § 552(b)(5). “Exemption 5 incorporates the traditional 

privileges that the Government could assert in civil litigation against a private litigant,” including 

the attorney work-product and deliberative-process privileges. Baker & Hostetler LLP v. U.S. 

Dep’t of Commerce, 473 F.3d 312, 321 (D.C. Cir. 2006). “[T]he purpose of the [Exemption 5] 

privilege is to encourage the frank discussion of legal and policy issues within the government.” 

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Access Reports v. Dep’t of Justice, 926 F.2d 1192, 1194 (D.C. Cir. 1991) (quotation marks 

omitted); Mead Data Central, Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 252 (D.C. Cir. 

1977) (“Exemption five is intended to protect the quality of agency decision-making by 

preventing the disclosure requirement of the FOIA from cutting off the flow of information to 

agency decision-makers.”). A decision in favor of the Commission here not only adheres to the 

text of Exemption 5, it manifestly furthers that exemption’s purpose by protecting the 

confidentiality of legal advice provided to the Commission during the pendency of enforcement 

matters at the administrative phase.

1. The Entire June 2011 Report is Privileged Attorney Work Product

The June 2011 report is precisely the type of document to which work-product protection 

is afforded. “The primary purpose of [the attorney work-product privilege] is to protect against 

disclosure the mental impressions, conclusions, opinions, or legal theories of an attorney or other 

representative of a party concerning litigation.” Kishore v. Dep’t of Justice, 575 F. Supp. 2d 243, 

260 (D.D.C. 2008) (citing Fed. R. Civ. P. 26(b)(3)). Attorney work product constitutes: 1) any 

document that is 2) prepared in anticipation of litigation, including administrative proceedings, 

3) by or for a party, or by or for that party’s representative. See Upjohn Co. v. United States, 449 

U.S. 383, 397-98 (1981); Hickman v. Taylor, 329 U.S. 495, 509-10 (1947); Coastal States Gas 

Corp. v. Dep’t of Energy, 617 F.2d 854, 864 (D.C. Cir. 1980); Public Citizen v. Dep’t of State, 

100 F. Supp. 2d 10, 29-30 (D.D.C. 2000) (“The privilege is not limited to civil proceedings, but 

extends to administrative proceedings as well.”).

There can be no dispute that CCP seeks a document prepared by the Commission’s 

Office of General Counsel (the Commission’s representative) for its client (the Commission). 

The June 2011 report contains the Commission’s attorneys’ legal theories, analyses, mental 

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12

impressions, and advice regarding the application of the Act and Commission regulations to 

alleged activities that were the subject of a Commission enforcement matter. (Kahn Decl. ¶ 18.) 

The report was also plainly prepared in anticipation of litigation. The section 437g 

enforcement process is a statutorily mandated administrative process that expressly includes

paths to litigation by or against the Commission. The Act authorizes the Commission to exercise 

its enforcement authority and file suit against a respondent to civilly enforce the Act in the event 

informal conciliation efforts fails. Id. at § 437g(a)(6)(A); supra p. 4. The Act also expressly 

provides that if the Commission dismisses an administrative complaint, the complainant may 

bring suit against the Commission alleging that the dismissal was contrary to law. 2 U.S.C. 

§ 437g(a)(8). Here, it is unnecessary to speculate about the likelihood of litigation arising out of 

the Commission’s resolution of the administrative complaint against Crossroads; such a lawsuit 

has already been brought against the Commission for its dismissal of that complaint. (See

Compl. Public Citizen v. FEC, No 14-148 (RJL) (D.D.C. Jan. 31, 2014).) It is thus clear that 

Commission administrative enforcement matters may lead to litigation — as occurred here and 

in scores of other cases.

6

 The legal analyses and recommendations prepared by Commission 

attorneys for the Commission’s consideration in exercising its enforcement powers thus clearly 

qualify for work-product protection. See Schiller v. NLRB, 964 F.2d 1205, 1208 (D.C. Cir. 

1992) (“Exemption 5 extends to documents prepared in anticipation of foreseeable litigation, 

even if no specific claim is contemplated.”), abrogated on other grounds by Milner v. Dep’t. of 

Navy, __ U.S. __, 131 S. Ct. 1259 (2011); Heggestad v. Dep’t of Justice, 182 F. Supp. 2d 1, 11 

 6 See, e.g., FEC v. Craig for U.S. Senate, 933 F. Supp. 2d 111 (D.D.C. 2013) (The 

Commission filed de novo suit pursuant to 2 U.S.C. §§ 437d(e) and 437g(a)(8)); FEC v. 

Novacek, 739 F. Supp. 957 (N.D. Tex. 2010) (same); Herron for Congress v. FEC, 903 F. Supp. 

2d 9 (D.D.C. 2012) (suit brought against the Commission under 2 U.S.C. § 437g(a)(8) alleging 

that the Commission’s dismissal of administrative complaint was contrary to law); Nader v. 

FEC, 823 F. Supp. 2d 53 (D.D.C. 2011) (same).

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(D.D.C. 2000) (“The prosecution memoranda at issue here were created as an integral part of the 

[agency’s] investigation and its decision-making process with regard to whether or not to 

prosecute . . . . This material is precisely the type of information universally held to be attorney

work-product in the context of civil discovery.”). 

CCP complains (Compl. ¶ 28) that the Commission declined to release “even . . . a 

partially unredacted” version of the June 2011 report, but the Commission had no obligation to 

do so. Under the attorney work-product doctrine, the entire document is privileged and the 

government is under no obligation to attempt to identify and provide any segregable portions. 

“[A]ny part of [a document] prepared in anticipation of litigation, not just the portions 

concerning opinions, legal theories, and the like, is protected by the work product doctrine and 

falls under exemption 5.” Judicial Watch v. Dep’t of Justice, 432 F.3d 366, 371 (D.C. Cir. 

2005); see also id. (“[F]actual material is itself privileged when it appears within documents that 

are attorney work product. If a document is fully protected as work product, then segregability is 

not required.”).7

The entire June 2011 report is privileged attorney work product, and was properly 

withheld under FOIA Exemption 5. The Commission should be awarded summary judgment on 

that basis alone.

 7 To the extent that CCP is seeking not only the June 2011 report but also the proposed 

Factual and Legal Analysis attached to it, both of which comprise the redacted material attached 

to the January 8, 2014 Statement of Reasons of Commissioners Petersen and Hunter and 

Chairman Goodman, the Commission’s arguments in this Memorandum about the June 2011 

report apply with equal force to the proposed Factual and Legal Analysis attached thereto. The 

proposed Factual and Legal Analysis simply summarizes the factual and legal analysis initially 

recommended by the Office of General Counsel in greater detail in its General Counsel’s Report 

(see Kahn Decl. ¶ 13), and is thus privileged and protected by Exemption 5 for all the same 

reasons that the June 2011 report is privileged and exempt from disclosure. 

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2. The Entire June 2011 Report is Protected by the Deliberative-Process 

Privilege

The deliberative-process privilege is a special privilege recognizing the importance of 

internal debate in government. The privilege “protect[s] the decisionmaking processes of 

government agencies” and “encourage[s] the frank discussion of legal and policy issues” by 

ensuring that agencies are not “forced to operate in a fishbowl.” Wolfe v. Dep’t of Health & 

Human Servs., 839 F.2d 768, 773 (D.C. Cir.1988) (en banc) (internal quotation marks omitted). 

It is intended to “protect[ ] the ‘administrative reasoning process,’ or those thoughts, ideas and 

analyses that encompass the process by which an agency reaches a decision.” United States v.

Exxon Corp., 87 F.R.D. 624, 636 (D.D.C. 1980). That protection recognizes that “[f]ree and 

open comments on the advantages and disadvantages of a proposed course of governmental 

management would be adversely affected if the civil servant or executive assistant were 

compelled by publicity to bear the blame for errors or bad judgment properly chargeable to the 

responsible individual with power to decide and act.” Kaiser Aluminum & Chem. Corp. v. 

United States, 157 F. Supp. 939, 945-46 (Ct. Cl. 1958). As the Court of Appeals for the D.C. 

Circuit has explained, there are three important purposes of the deliberative-process privilege:

First, it protects creative debate and candid consideration of alternatives within an 

agency, and, thereby, improves the quality of agency policy decisions. Second, it 

protects the public from the confusion that would result from premature exposure to 

discussions occurring before the policies affecting it had actually been settled upon. And 

third, it protects the integrity of the decision-making process itself by confirming that 

“officials should be judged by what they decided(,) not for matters they considered before 

making up their minds.”

Russell v. Dep’t of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982) (quoting Jordan v. Dep’t 

of Justice, 591 F.2d 753, 772-73 (D.C. Cir. 1978)).

The deliberative-process privilege protects only those documents that are both (i) “predecisional,” i.e., temporally antecedent to the challenged policy or decision; and (ii) actually 

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“deliberative,” or related to the process by which the decision was reached. Tax Analysts v. IRS,

117 F.3d 607, 616 (D.C. Cir. 1997); In re Apollo Group, Inc. Sec. Litig., 251 F.R.D. 12 (D.D.C. 

2008). Recognizing that the “deliberative” and “predecisional” requirements “tend to merge,” 

the D.C. Circuit has explained that while deliberative documents “reflect[] the give-and-take of 

the consultative process,” predecisional materials generally “reflect the agency ‘give-and-take’ 

leading up to a decision that is characteristic of the deliberative process.” Access Reports, 926 

F.2d at 1195. 

The June 2011 report plainly meets both requirements. It is deliberative and reflects the 

give-and-take of the consultative process: the legal analysis was submitted to the Commission 

by its attorneys for the purpose of aiding the Commission in the exercise of its powers to seek to 

obtain compliance with and civilly enforce the Act. 2 U.S.C. § 437c(b)(1); see Kahn Decl. ¶ 12. 

The report is also plainly predecisional: it preceded, and was drafted to help facilitate, the 

Commission’s decision whether to find reason to believe that Crossroads had violated the Act. 

(Kahn Decl. ¶¶ 12-15.) 

Indeed, not only did the June 2011 report precede the Commission’s decision in MUR 

6396, the Commission never completed consideration of that guidance from counsel because the 

General Counsel’s Office withdrew it before any final determination by the Commission. (Id.

¶¶ 14-15.) Since FECA authorizes only the Commission, not its attorneys, to formulate policy

under and civilly enforce the Act, 2 U.S.C. § 437c(b)(1), the withdrawn analyses and 

recommendations could not have been anything but deliberative and predecisional. Id. at 

§ 437c(c) (“All decisions of the Commission with respect to the exercise of its duties and powers 

under the provisions of this Act shall be made by a majority vote of the members of the

Commission.”). A recommendation by Commission counsel that advises the Commission to 

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take certain legal action is simply not a reflection of the agency’s legal position unless and until 

the Commission adopts the proposed analyses and takes the recommended actions. Elec.

Frontier Found. v. Dep’t of Justice (“EFF”), 739 F.3d 1, 8 (D.C. Cir. 2014), petition for cert. 

filed, 82 U.S.L.W. 3736 (U.S. Jun. 9, 2014) (No. 13-1474) (explaining that advice memorandum 

of Department of Justice’s Office of Legal Counsel provided to FBI officials was “not the law of 

an agency unless the agency adopts it” and was covered by the deliberative-process privilege). 

The Commission never took any such action regarding the June 2011 report. (Kahn Decl. ¶ 15.) 

CCP is thus plainly mistaken when it suggests (Compl. ¶ 27) that disclosure of the report 

could “‘inform the regulated community about what the law is’” by possibly revealing 

“‘information regarding the General Counsel’s preferred legal test for determining major 

purpose,’” a factor relevant to determining whether a group must register with the Commission 

and file periodic disclosure reports. Even if it were true that the withdrawn report might shed 

light on certain analysis “preferred” by the General Counsel’s Office, such information would 

not identify “‘what the law is,’” because only the Commission, acting through a majority vote of 

its Commissioners, is authorized to interpret and enforce the Act. See 2 U.S.C. § 437c(c). A 

legal analysis prepared and subsequently withdrawn by the Commission’s lawyers, never 

adopted by the Commission, is no statement of “what the law is.” 

The deliberative-process privilege “calls for disclosure of all opinions and interpretations 

which embody the agency’s effective law and policy, and the withholding of all papers which 

reflect the agency’s group thinking in the process of working out its policy and determining what 

its law shall be.” EFF, 739 F.3d at 7 (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153 

(1975)). Since the withdrawn report does not embody the law and only reflects internal 

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17

deliberations before an administrative enforcement matter was resolved, the document is clearly

privileged.

8

Moreover, shielding the reconsidered legal analysis from disclosure furthers the 

important policy interests underlying the deliberative-process privilege. Here, the interest in 

encouraging candid internal discussions is implicated not only in the legal analysis and 

recommendations contained in the June 2011 report; that interest is also implicated in the Office 

of General Counsel’s decision to withdraw its initial legal analysis and produce a revised report 

for the Commission’s consideration. (See Kahn Decl. ¶¶ 15-16.) In particular, if the 

deliberative-process privilege “serves to assure that subordinates within an agency will feel free 

to provide the decisionmaker with their uninhibited opinions and recommendations without fear 

of later being subject to public ridicule or criticism,” Coastal States Gas Corp., 617 F.2d at 866, 

the privilege must also protect the ability of agency staff to revise or refine their analysis and 

recommendations to their agency-client without fear that their revisions or refinements will be 

subject to public scrutiny. See Heggestad, 182 F. Supp. at 7 (explaining that deliberative-process 

privilege protects “not only particular documents, but also the integrity of the deliberative 

process itself”).

An order requiring government agencies to produce earlier versions of staff legal 

analyses that agency counsel have withdrawn, revised, and resubmitted to their agency-client 

would contravene the fundamental purposes of the deliberative-process privilege and could have 

a chilling effect on agency staff, who may be less inclined to refine their analyses and 

 8 Since the June 2011 report is not a binding agency opinion or interpretation that the 

Commission “actually applies in cases before it,” it is not “working law,” that is “a body of 

secret law, used by it in the discharge of its regulatory duties and in its dealing with the public, 

but hidden behind a veil of privilege because it is not designated as formal, binding, or final.” 

EFF, 739 F.3d at 7 (internal quotation marks omitted).

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recommendations in future administrative matters. Coastal States Gas Corp., 617 F.2d at 866; 

see Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 9 (2001) (explaining 

that the “object [of the deliberative-process privilege] is to enhance the quality of agency 

decisions, by protecting open and frank discussion among those who make them within the 

government’”) (citation and quotation marks omitted).

In addition, CCP’s claimed interest in the report (Compl. ¶ 27) is not relevant to 

determining the applicability of any privilege here. In civil discovery, the work-product and 

deliberative-process privileges can be overcome by a sufficient showing of need. But the needs 

of plaintiffs in FOIA cases are not relevant in determining whether Exemption 5 privileges 

apply. In re Sealed Case, 121 F.3d 729, 737 n.5 (D.C. Cir. 1997) (“[T]he courts have held that 

the particular purpose for which a FOIA plaintiff seeks information is not relevant in determining 

whether FOIA requires disclosure.”). CCP’s purported interest in the withdrawn report — even 

if it could be cast as a “need” — is of no moment to the Commission’s showing that the report 

remains privileged.

Finally, the deliberative-process privilege, like the work-product privilege, see supra pp. 

13-14, exempts the Commission from any obligation to segregate and disclose any factual 

material contained in the June 2011 report. “[F]actual material . . . assembled through an 

exercise of judgment in extracting pertinent material from a vast number of documents for the 

benefit of an official called upon to take discretionary action” is exempt from disclosure under 

Exemption 5. Mapother v. Dep’t of Justice, 3 F.3d 1533, 1539 (D.C. Cir. 1993). Any facts that 

appear in the report were selected by Commission attorneys from the universe of available facts 

for inclusion to support the Office of General Counsel’s analysis and recommendations to its 

client. Analyzing and applying the Act and Commission regulations to certain facts reflects an 

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19

“exercise of discretion and judgment calls” by Commission counsel and those facts are exempt 

from disclosure. Id.; Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 513-14 

(D.C. Cir. 2011) (explaining that factual summaries “culled . . . from the much larger universe of 

facts presented to [a federal advisory committee] . . . reflect an exercise of judgment as to what 

issues are most relevant to the pre-decisional findings and recommendations . . . and are exempt 

under Exemption 5”) (citations and quotation marks omitted).

Since the entire June 2011 report plainly reflects “deliberations comprising part of a 

process by which governmental decisions and policies are formulated,” Sears, Roebuck & Co., 

421 U.S. at 150, the deliberative-process privilege clearly applies and provides an independent 

basis for the Commission’s proper withholding of the entire document under FOIA Exemption 5. 

For this independent reason as well, summary judgment should be granted in the Commission’s 

favor.

9

B. Portions of the June 2011 Report Are Also Subject to FOIA Exemption 7(E)

Under FOIA Exemption 7(E), certain law enforcement records that would “disclose 

techniques and procedures for law enforcement investigations or prosecutions, or would disclose 

guidelines for law enforcement investigations or prosecutions” need not be released “if such 

disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. 

§ 552(b)(7)(E). The D.C. Circuit has explained that this exemption sets a “low bar for the 

 9 The Commission does not rely on the attorney-client privilege here. That privilege, 

which the Court of Appeals has limited to communications that rest on confidential information 

provided by a client to its attorney, see, e.g., Tax Analysts, 117 F.3d at 618, is unnecessary to the 

Commission’s defense of this FOIA action and is less clearly applicable to the particular 

circumstances of this case than the attorney work-product and deliberative-process privileges. 

Nevertheless, the Commission notes that CCP’s assertion (CCP Compl. Exh. C at 3) that the 

Commission’s general policy of disclosing certain enforcement documents in closed enforcement 

matters precludes the Commission’s reliance on the attorney-client privilege is wrong for all of 

the reasons discussed infra at Part III. 

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agency to justify withholding”: the agency need only provide an explanation of what procedures 

would be disclosed. Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011) (“[E]xemption 7(E) only 

requires that the [agency] demonstrate logically how the release of the requested information 

might create a risk of circumvention of the law.”); Public Emps. for Envtl. Responsibility v. U.S. 

Section, Int’l Boundary and Water Comm’n, 740 F.3d 195, 205 (D.C. Cir. 2014) (explaining that 

the agency must demonstrate that disclosure “might increase the risk that a law will be violated 

or that past violators will escape legal consequences”) (quotation marks omitted).

The Commission explained to CCP (CCP Compl. Exh. B) that the requested document 

“includes information concerning guidelines for law enforcement investigations or prosecutions 

that if disclosed could reasonably be expected to risk circumvention of the law.” Specifically, 

the first page of the June 2011 report includes information related to formal scoring criteria that 

the Commission uses to allocate resources and decide which matters to pursue. (Kahn Decl.

¶¶ 21-22.) Such scores if made public could reveal Commission priorities for pursuing certain 

types of campaign-finance violations over others. (Id. ¶ 22.) As an agency with limited 

resources, the Commission must often choose among competing demands and priorities. 

Revealing the Commission’s formal scoring criteria could reasonably be expected to risk 

circumvention of the Act as to violations that, although of lower priority than others, are still 

unlawful. Thus, regardless of the Court’s decision regarding the applicability of FOIA 

Exemption 5 to the report as a whole, the information on the first page related to the 

Commission’s formal scoring criteria is independently shielded from disclosure under FOIA 

Exemption 7(E).

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III. THE COMMISSION HAS NOT WAIVED ANY OF THE PRIVILEGES 

APPLICABLE TO THE JUNE 2011 REPORT

CCP appears to rely (Compl. ¶ 17) on the Commission’s general policy “in favor of 

releasing First General Counsel’s Reports” to challenge the applicability of the privileges and 

FOIA exemptions outlined above. But that policy provides no support for CCP’s FOIA claim.

First, the Commission’s policy statements addressing disclosure of certain General 

Counsel’s Reports do not discuss reports that, like the document CCP seeks, are withdrawn by 

the General Counsel’s Office prior to any final Commission decision on whether to accept or 

reject the recommendations contained in the report. Second, the Commission’s general policy in 

favor of releasing certain categories of Commission documents in closed enforcement matters is 

not a waiver of any privileges that apply to a particular document that was never disclosed. 

Indeed, even as to those categories of documents that the Commission has clearly indicated its 

general intention to make public, the Commission has explicitly stated that any disclosure is 

subject to applicable redactions consistent with FECA or FOIA. See Statement of Policy

Regarding Placing First General Counsel’s Reports on the Public Record, 74 Fed. Reg. 66,132, 

66,133 (Dec. 14, 2009) (“2009 Policy”); Statement of Policy Regarding Closure of Enforcement 

and Related Files, 68 Fed. Reg. 70,423, 70,428 (Dec. 20, 2003) (“2003 Policy”). And third, a 

general policy in favor of releasing certain categories of Commission records is not a binding 

obligation to release even those documents that are clearly covered by the policy, let alone an 

obligation to release a privileged agency document not specifically addressed by the policy. 

In short, the Commission’s policy statements favoring disclosure of certain Commission 

documents, subject to applicable privileges, do not require the Commission to release, or to 

waive the privileges and FOIA exemptions applicable to, the withdrawn legal analysis CCP 

seeks to obtain in this case.

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A. FEC Policy Regarding Disclosure of Certain Commission Documents

In 2003, the Commission issued a statement of policy for publicly disclosing several 

limited categories of Commission documents that “play a critical role in the resolution of [an 

enforcement] matter” and are thus “integral to [the Comission’s] decisionmaking process” at the 

conclusion of an enforcement proceeding. 2003 Policy, 68 Fed. Reg. at 70,427. The 

Commission adopted the 2003 Policy in the wake of a court decision that found impermissible 

the Commission’s prior practice of disclosing a wide range of investigative materials considered 

by the Commission in its disposition of an administrative enforcement matter. See 2009 Policy, 

74 Fed. Reg. at 66,132; AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003). Among the categories 

of documents covered by the 2003 Policy were General Counsel’s Reports that recommended 

“dismissal, reason to believe, no reason to believe, no action at this time, probable cause to 

believe, no probable cause to believe, no further action, or acceptance of a conciliation 

agreement.” 2003 Policy, 68 Fed. Reg. at 70,427. The 2003 Policy specified that the 

Commission’s disclosure of such documents would be subject to redactions consistent with 

FECA and the Commission’s authority to withhold material under an applicable FOIA 

exemption. Id. at 70,428. It contained no discussion of any intended Commission practice 

regarding General Counsel’s Reports that are withdrawn by the General Counsel’s Office from 

Commission consideration prior to the Commission’s determination of whether to accept or 

reject the withdrawn report’s recommendations.

In 2006, the Commission reconsidered and decided to discontinue its practice of placing 

First General Counsel’s Reports on the public record, while continuing to disclose certain 

Factual and Legal Analyses that provided an explanation for the Commission’s decision in a 

particular enforcement matter, i.e. proposed Factual and Legal Analyses that were actually 

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adopted by the Commission. See 2009 Policy, 74 Fed. Reg. at 66,132. In 2009, however, the 

Commission issued a statement of policy announcing the Commission’s resumption of its prior 

practice of placing First General Counsel’s Reports on the public record, to restore an approach 

consistent with the Commission’s continued practice of disclosing certain other General 

Counsel’s reports. 2009 Policy, 74 Fed. Reg. at 66,132. The 2009 Policy, like the 2003 Policy, 

explained that the Commission’s disclosure would be subject to redactions consistent with the 

Act and applicable FOIA exemptions. Id. at 66,133. Also like the earlier policy, the 2009 Policy 

is silent on the Commission’s intentions regarding reports that are withdrawn prior to the

Commission concluding its consideration of a recommendation. 

B. The 2009 Policy Does Not Address Staff Recommendations That Are 

Withdrawn From Commission Consideration

As a preliminary matter, in neither the 2009 Policy, nor the 2003 Policy upon which it is 

based, did the Commission so much as discuss or mention withdrawn reports, let alone express 

an intent to disclose them. The Commission's explanation that its disclosure policy is intended to 

make public documents “integral to its decisionmaking process” and “critical” to the resolution 

of Commission enforcement matters suggests that documents withdrawn from Commission 

consideration are not covered by the policy. 2003 Policy, 68 Fed. Reg. at 70,427-28. Unlike 

reports containing advice and recommendations that the Commission determines to accept or 

reject, withdrawn reports like the June 2011 report CCP seeks here, precisely because they are 

withdrawn prior to a Commission determination, generally are neither “critical” to the 

Commission’s resolution of an enforcement matter nor “integral” to the Commission’s 

decisionmaking process.

Since the general policy statements about disclosure of staff recommendations do not 

address those that were withdrawn from Commission consideration, and in light of the important 

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interests underlying the privileges clearly applicable to the June 2011 report, see supra Part II, 

the Commission’s policy statements should not be read expansively to include a confidential and 

privileged document.10

C. The 2009 Statement of Policy is Not a Waiver

But even if the 2009 Policy could be read to apply to withdrawn staff recommendations 

like those in the June 2011 report, it is not a binding, ex ante privilege waiver. Indeed, the 2009 

Policy, like the 2003 Policy, explicitly qualifies the Commission’s stated intent to disclose 

certain Commission documents as being subject to the Commission’s authority to withhold 

materials exempt from disclosure under FECA and FOIA. 74 Fed. Reg. at 66,133. As explained 

above, FOIA Exemption 5 encompasses the very privileges applicable to the June 2011 report 

CCP seeks here. 

More fundamentally, where, as here, the Commission has not disclosed the substance of 

the requested document, the agency plainly has not waived the privileges that adhere to the 

document. The attorney work-product and deliberative-process privileges may be waived in 

different ways, but all require actual disclosure of the substance of the communication at issue to

a third party. See, e.g., 6 James Wm. Moore, et al., Moore’s Federal Practice § 26.70[6][c] (3d 

 10 CCP also purports to rely (Compl. ¶ 20) on a Commission regulation that, prior to the 

Court of Appeals decision in AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003), provided for the 

Commission’s disclosure after the conclusion of an administrative enforcement matter of various 

categories of Commission investigatory materials, including General Counsel’s Reports. The 

D.C. Circuit in AFL-CIO found that section 5.4(a)(4) of the Commission’s regulations posed 

“‘serious constitutional difficulties’” because it failed to adequately balance the Commission’s 

disclosure interests against the First Amendment privacy interests of respondents in FEC 

enforcement matters, and thus concluded that the regulation was “impermissible.” AFL-CIO, 

333 F.3d at 179. CCP’s reliance on that regulation is thus misplaced. Indeed, it was the D.C. 

Circuit’s holding in AFL-CIO that led the Commission to adopt its subsequent, narrower policy 

statements promoting the disclosure of “critical” and “integral” enforcement documents, subject 

to applicable privileges and exemptions. See 2003 Policy, 68 Fed. Reg. at 70,427; 2009 Policy, 

74 Fed. Reg. at 66,132; see supra pp. 22. 

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ed. 2004) 26–467 (“A waiver of work-product protection encompasses only the items actually 

disclosed.”); 2 Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product 

Doctrine (5th ed. 2007) (“Epstein”) 1030-60 (discussing waiver of the work-product privilege);

id. at 1060-1114 (discussing court decisions recognizing waiver by mandated disclosure of a 

communication’s substance to the government, by inadvertent disclosure or selective disclosure, 

and by affirmative use of privileged material as a basis for a claim or defense).

11 

No such disclosure has occurred here, and the Commission is unaware of any decision 

holding that a non-binding expression of general intent to make public certain general categories 

of documents constitutes a waiver of privileges applicable to a particular future document. On 

the contrary, in the analogous context of the attorney-client privilege, courts have held that “a 

mere intention to waive the privilege” even as to a specific document is insufficient, because 

actual “disclosure rather than a promise is the linchpin of the waiver doctrine.” Tennenbaum v. 

Deloitte & Touche, 77 F.3d 337, 341-42 (9th Cir. 1996) (citing Bowne of New York City, Inc. v. 

AmBase Corp., 150 F.R.D. 465, 483 (S.D.N.Y. 1993) (holding that privilege holder’s “stated 

willingness” not to invoke privilege did not constitute a waiver in absence of “actual disclosure 

of privileged communications”)). 

D. The 2009 Policy Is Not Binding

Even if the 2009 Policy could be read both to apply to the withdrawn June 2011 report, 

and to suggest that the Commission generally intended to waive applicable privileges for 

 11 See also, e.g., Rockwell Int’l Corp. v. Dep’t of Justice, 235 F.3d 598, 605 (D.C. Cir. 

2001) (“[D]isclosure of work-product materials can waive the privilege for those materials if 

such disclosure, under the circumstances, is inconsistent with the maintenance of secrecy from 

the disclosing party’s adversary.”) (internal quotation marks omitted); United States v. Deloitte 

LLP, 610 F.3d 129, 140 (D.C. Cir. 2010) (“[D]isclosing work product to a third party can waive 

protection if such disclosure, under the circumstances, is inconsistent with the maintenance of 

secrecy from the disclosing party’s adversary.”) (citation and internal quotation marks omitted).

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withdrawn General Counsel’s Reports, the 2009 Policy is not binding on the Commission, or 

anyone else. Unlike legislative rules, which implement congressional intent and effect statutory 

purposes, Batterton v. Marshall, 648 F.2d 694, 701-02 (D.C. Cir. 1980), general statements of 

policy, like the 2009 Policy, are “statements issued by an agency to advise the public 

prospectively of the manner in which the agency proposes to exercise a discretionary power.” 

Pacific Gas & Electric Co. v. Fed. Power Comm’n, 506 F.2d 33, 38 n.17 (D.C. Cir. 1974) 

(quoting Dep’t of Justice, Attorney General’s Manual on the Administrative Procedure Act 30 

n.3 (1947)). General statements of policy are “binding on neither the public, nor the agency.” 

Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997) (internal citations omitted); see 

also Chamber of Commerce v. U.S. Dep’t of Labor, 174 F.3d 206, 212 (D.C. Cir. 1999) (“‘A 

general statement of policy does not establish a binding norm.’”) (quoting Pacific Gas, 506 F.2d 

at 38). As the D.C. Circuit has explained, an agency policy statement “merely represents an 

agency position with respect to how it will treat — typically enforce — the governing legal 

norm.” Syncor Int’l, 127 F.3d at 94.

The 2009 Policy did not affect a change in any substantive legal norm. It does not 

purport to affect the activities of anyone but the Commission itself. Nor does it reflect the 

Commission’s interpretation of congressional intent or any construction of the Act. The Act 

specifies what information may not be made public. See, e.g., 2 U.S.C. § 437g(a)(12)(A) (“Any 

notification or investigation made under [section 437g] shall not be made public by the 

Commission . . . without the written consent of the person receiving such notification or the 

person with respect to whom such investigation is made.”). It does not, however, specify what

enforcement documents must be made public at the conclusion of an enforcement matter. 

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In sum, under even the broadest reading of the 2009 Policy, that non-binding 

Commission statement does not require the Commission to release, or to waive the privileges 

applicable to, the June 2011 report.

IV. THE COMMISSION FULFILLED ITS LEGAL OBLIGATIONS IN NOTIFYING 

CCP OF THE DENIAL OF ITS ADMINISTRATIVE APPEAL 

CCP cites an irrelevant statutory provision and court decision in alleging (Compl. ¶ 32) 

that the Commission’s denial of its FOIA appeal lacked an adequate explanation and was thus 

arbitrary and capricious. That allegation is entirely baseless.

FOIA requires an agency to provide the reasons for its initial determination, 5 U.S.C. 

§ 552(a)(6)(A)(i), but contains no similar requirement that an agency provide its reasons for 

denying a FOIA appeal, id. § 552(a)(6)(A)(ii). This makes sense, since, as explained supra, p. 

10, judicial review of CCP’s FOIA claim is de novo. The Commission provided the required 

reasons for denying CCP’s FOIA request in its initial response, which explained that the 

withdrawn June 2011 report was subject to the various privileges, contained sensitive lawenforcement information, and accordingly would be withheld under FOIA Exemptions 5 and 

7(E). (Kahn Decl. ¶ 7; CCP Compl. Exh. B.) 

CCP’s complaint cites (Compl. ¶ 32) 5 U.S.C. § 552(a)(4)(F)(i), but that provision has no 

application here. Section 552(a)(4)(F)(i) authorizes the Special Counsel to initiate disciplinary 

proceedings after the court orders the production of records, assesses attorneys’ fees, and finds 

that agency personnel may have acted arbitrarily and capriciously with respect to withholding. 

That section does not require an agency to explain its reasons for denying a FOIA appeal. 

CCP also cites (Compl. ¶ 32) FEC v. Nat’l Republican Senatorial Comm. v. FEC, 966 

F.2d 1471, 1476 (D.C. Cir. 1992). That case involved deferential judicial review of the 

Commission’s dismissal of an administrative complaint pursuant to 2 U.S.C. § 437g(a)(8), which 

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does require an explanation of the agency’s reasoning. Id. It did not involve the quite different 

context of a de novo FOIA action.

CONCLUSION

For all the foregoing reasons the Court should grant the Commission’s Motion for 

Summary Judgment and dismiss CCP’s complaint.

Respectfully Submitted,

Lisa J. Stevenson (D.C. Bar No. 457628)

Deputy General Counsel - Law

lstevenson@fec.gov

Kevin Deeley

Acting Associate General Counsel

kdeeley@fec.gov

Erin Chlopak (D.C. Bar. No. 496370)

Acting Assistant General Counsel

echlopak@fec.gov

/s/ Steve Hajjar

Steve Hajjar

Attorney

shajjar@fec.gov

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463

(202) 694-1650 

Counsel for Defendant

Federal Election Commission

July 28, 2014

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