ORAL ARGUMENT NOT YET SCHEDULED 

NO. 18-5099 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

JOHN DOE 1 AND JOHN DOE 2, 

Plaintiffs-Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

On Appeal from a Final Judgment of the 

U.S. District Court for the District of Columbia, 

(Honorable Amy Berman Jackson) 

BRIEF OF PLAINTIFFS-APPELLANTS 

William W. Taylor, III 

Carlos T. Angulo 

Dermot Lynch 

ZUCKERMAN SPAEDER LLP 

1800 M Street, NW 

Suite 1000 

Washington, DC 20036 

202-778-1800 

202-822-8106 (fax) 

wtaylor@zuckerman.com 

cangulo@zuckerman.com 

dlynch@zuckerman.com 

Counsel for Plaintiff-Appellant 

John Doe 1

Michael Dry 

John P. Elwood 

Kathleen Cooperstein 

VINSON & ELKINS 

2200 Pennsylvania Avenue, NW 

Suite 500 West 

Washington, DC 20037 

202-639-6500 

202-879-8984 (fax) 

mdry@velaw.com 

jelwood@velaw.com 

kcooperstein@velaw.com 

Counsel for Plaintiff-Appellant 

John Doe 2

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED 

CASES 

Pursuant to D.C. Circuit Rule 28(a)(1)(A), Plaintiffs-Appellants, through 

counsel, certify as follows:

(1) Parties and Amici. 

Plaintiffs: Plaintiffs-Appellants (hereafter collectively “Plaintiffs”) are John 

Doe 2, a trust, and John Doe 1, the trustee of John Doe 2.1

Defendant: The Defendant-Appellee is the Federal Election Commission 

(“FEC”). 

Intervenors and Defendants: The Center for Responsibility and Ethics in 

Washington (“CREW”) and Anne Weismann unsuccessfully sought to intervene as 

defendants in the District Court. Plaintiffs are unaware if CREW and Ms. 

Weismann intend to move to intervene before this Court. 

Amici: When the District Court denied CREW’s and Ms. Weismann’s 

motion to intervene, it granted them leave to file an amicus brief in support of the 

FEC, which they filed on February 12, 2018. 

(2) Rulings Under Review 

Plaintiffs seek review of the District Court’s order and opinion issued March 

23, 2018, in John Doe 1, et al. v. Federal Election Commission, Civ. Action No. 

1

 Plaintiffs use pseudonyms in this filing. They have filed under seal with this 

Court their true identities. 

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17-2694 (ABJ) (D.D.C.) (ECF Nos. 46 and 47). See 2018 U.S. Dist. LEXIS 48135 

(Mar. 23, 2018). 

(3) Related Cases 

CREW and Ms. Weismann filed a complaint against the FEC pursuant to 52 

U.S.C. § 30109(a)(8) alleging that the FEC’s decision with respect to the 

underlying administrative matter that is at issue in this case was contrary to law. 

See CREW v. FEC, No. 17-2770-ABJ (D.D.C). That matter is pending in the 

district court. 

/s/ William W. Taylor, III 

Counsel for John Doe 1 

/s/ Michael Dry 

Counsel for John Doe 2

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CORPORATE DISCLOSURE STATEMENT2

Pursuant to D.C. Circuit Rule 26.1, Plaintiffs John Doe 1 and John Doe 2, by 

counsel, certify as follows: 

John Doe 2 is a closely-held trust. John Doe 1 is John Doe 2’s trustee. 

No publicly held corporation has a 10 percent or greater ownership interest 

in John Doe 2. 

2

 Plaintiffs have filed a sealed version of this Disclosure Statement with this Court. 

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TABLE OF CONTENTS 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED 

CASES ................................................................................................................... i

CORPORATE DISCLOSURE STATEMENT ....................................................... iii

TABLE OF AUTHORITIES .................................................................................... vi

GLOSSARY ............................................................................................................ xii

STATEMENT OF JURISDICTION...................................................................... xiii

LIST OF KEY STATUTES, REGULATIONS, AND AGENCY 

POLICIES ......................................................................................................... xiii

INTRODUCTION ..................................................................................................... 1

ISSUES PRESENTED FOR REVIEW ..................................................................... 4

STATEMENT OF THE CASE .................................................................................. 4

I. STATUTORY AND REGULATORY FRAMEWORK ...................................... 4

A. FEC Investigations ........................................................................................ 4

B. Public Disclosure of Information Relating to FEC 

Investigations ................................................................................................ 6

II. FACTUAL AND PROCEDURAL BACKGROUND ......................................... 8

A. MUR 6920 ..................................................................................................... 9

B. Plaintiffs’ Involvement in MUR 6920......................................................... 10

C. Proceedings in the District Court ................................................................ 14

STANDARD OF REVIEW ..................................................................................... 16

SUMMARY OF ARGUMENT ............................................................................... 17

ARGUMENT ........................................................................................................... 20

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I. FOIA EXEMPTION (7)(C) AND FEC REGULATIONS AND 

POLICIES APPLYING THIS EXEMPTION CATEGORICALLY 

PROHIBIT RELEASE OF PLAINTIFFS’ IDENTITIES. ................................. 20

A. The Trustee Has a Personal Privacy Interest Protected Under 

Exemption 7(C) ........................................................................................... 25

B. Disclosure of the Trust’s Identity Likewise Implicates a 

Privacy Interest Protected by Exemption 7(C) ........................................... 26

C. The Public Interest Is Not Served by Disclosure of Plaintiffs’ 

Identities ...................................................................................................... 27

II. DISCLOSURE OF PLAINTIFFS’ IDENTITIES IS ARBITRARY 

AND CAPRICIOUS AND CONTRARY TO FECA ........................................ 30

A. The FEC Lacks Authority Under FECA to Disclose Plaintiffs’ 

Identities ...................................................................................................... 32

B. The FEC’s Regulations Do Not Authorize Disclosure of 

Plaintiffs’ Identities ..................................................................................... 35

III. DISCLOSURE OF PLAINTIFFS’ IDENTITIES WOULD 

VIOLATE THEIR FIRST AMENDMENT RIGHTS ........................................ 43

A. Compelled Disclosure of Political Activity in the Context of 

FEC Investigations and Proceedings Implicates First 

Amendment Rights. .................................................................................... 44

B. Plaintiffs Have Demonstrated a First Amendment Interest in 

Preventing the Disclosure of Their Identities ............................................. 47

1. AFL-CIO Governs this Case, and Plaintiffs Have a Clear First 

Amendment Interest in Preventing Disclosure ...................................47

2. Plaintiffs Do Not Assert the Right to Make an Anonymous 

Contribution .........................................................................................51

C. The FEC’s Asserted Interests in Deterrence and 

Accountability in No Way Justify Disclosure Over Plaintiffs’ 

First Amendment Rights ............................................................................. 53

CONCLUSION ........................................................................................................ 55

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TABLE OF AUTHORITIES 

CASES

ACLU v. United States DOJ, 

655 F.3d 1 (D.C. Cir. 2011)..................................................................................27 

Albany Eng’g v. FERC, 

548 F.3d 1071 (D.C. Cir. 2008) ...........................................................................34 

Alexander & Alexander Servs. v. SEC, 

Civ. A. No. 92-1112 (JHG), 1993 WL 439799 (D.D.C. Oct. 19, 1993) ..............26 

*AFL-CIO v. FEC

177 F. Supp. 2d 48 (D.D.C. 2001) .................................................... 20, 21, 23, 24 

*AFL-CIO v. FEC, 

333 F.3d 168 (D.C. Cir. 2003) 

 ................ 7-8, 15, 19, 25, 26, 30, 31, 34, 35, 43, 44. 46, 47, 48, 49, 50, 51, 53, 54 

Auer v. Robbins, 

519 U.S. 452 (1997) .............................................................................................31 

Baez v. United States DOJ, 

647 F.2d 1328 (D.C. Cir. 1980) ...........................................................................22 

Buckley v. Valeo, 

424 U.S. 1 (1976) .............................................................................. 45, 46, 48, 49 

Catholic Health Initiatives v. Sebelius, 

617 F.3d 490, 497 (D.C. Cir. 2010) .....................................................................16 

Cement Kiln Recycling Coalition v. EPA, 

493 F.3d 207 (D.C. Cir. 2007) ...................................................................... 36, 38 

Chevron U.S.A., Inc. v. NRDC, 

467 U.S. 837 (1984) .................................................. 15. 30, 31, 32, 33, 34, 43, 44 

Christopher v. SmithKline Beecham Corp., 

567 U.S. 142 (2012) .............................................................................................31 

*Authorities upon which we chiefly rely are marked with astericks. 

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Citizens for Responsibility & Ethics in Wash. v. United States 

Dep’t of Justice, 746 F.3d 1082 (D.C. Cir. 2014) ................................................29 

Citizens United v. FEC, 

558 U.S. 310 (2010) ...................................................................................... 50, 52 

Common Cause v. FEC, 

842 F.2d 436 (D.C. Cir. 1988) .............................................................................33 

Davis v. United States Dep’t of Justice, 

968 F.2d 1276 (D.C. Cir. 1992) ...........................................................................28 

FBI v. Abramson, 

456 U.S. 615 (1982) .............................................................................................20 

FCC v. AT&T Inc., 

562 U.S. 397 (2011) ...................................................................................... 26, 27 

FEC v. Machinists Non-Partisan Political League, 

655 F.2d 380 (D.C. Cir. 1981) .............................................................................46 

FEC v. Nat’l Rifle Ass’n, 

553 F. Supp. 1331 (D.D.C. 1983) ........................................................................52 

Fund for Const. Gov’t v. Nat’l Archives and Records Serv., 

656 F.2d 856 (D.C. Cir. 1981) .............................................................................22 

Judicial Watch, Inc. v. Nat’l Archives & Records Admin., 

876 F.3d 346 (D.C. Cir. 2017) .............................................................................28 

Kenny v. Wilson, 

885 F.3d 280 (4th Cir. 2018) ................................................................................54 

Kidd Commc’ns v. FCC, 

427 F.3d 1 (D.C. Cir. 2005)..................................................................................32 

Marlow v. New Food Guy, Inc., 

861 F.3d 1157 (10th Cir. 2017) ............................................................................34 

McConnell v. FEC, 

540 U.S. 93 (2003) ...............................................................................................45 

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McCutcheon v. FEC, 

134 S. Ct. 1434 (2014) .........................................................................................46 

Menkes v. United States Dep’t of Homeland Security, 

637 F.3d 319 (D.C. Cir. 2011) .............................................................................32 

Multi Ag Media LLC v. United States Dep’t of Agric., 

515 F.3d 1224, 1230 (D.C. Cir. 2008) .................................................................27 

Nat’l Envtl. Dev. Ass’ns Clean Air Project v. EPA, 

752 F.3d 999 (D.C. Cir. 2014) ...................................................................... 17, 27 

*Nation Magazine, Wash. Bureau v. United States Customs Serv., 

71 F.3d 885 (D.C. Cir. 1995) ...................................................... 17, 20, 21, 24, 25 

Northpoint Tech., Ltd. v. FCC, Inc., 

412 F.3d 145 (D.C. Cir. 2005) .............................................................................30 

Perez v. Mortg. Bankers Ass’n, 

135 S. Ct. 1199 (2015) .........................................................................................32 

Rhea Lana, Inc. v. United States DOL, 

824 F.3d 1023 (D.C. Cir. 2016) .................................................................... 31, 39 

Roth v. United States, 

354 U.S. 476 (1957) .............................................................................................45 

Ry. Labor Exec. Ass’n v. Nat’l Mediation Bd., 

29 F.3d 655 (D.C. Cir. 1994) ...............................................................................34 

*SafeCard Servs., Inc. v. SEC, 

926 F.2d 1197 (D.C. Cir. 1991) .................................................. 17, 20, 21, 22, 29 

Stern v. FBI, 

737 F.2d 84 (D.C. Cir. 1984) ......................................................................... 27-28 

Teva Pharms. USA, Inc. v. FDA, 

441 F.3d 1 (D.C. Cir. 2006)..................................................................................16 

Tripp v. United States Dep’t of Def., 

193 F. Supp. 2d 229 (D.D.C. 2002) .............................................................. 23, 24 

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United States v. Boender, 

649 F.3d 650 (7th Cir. 2011) ................................................................................52 

United States v. O’Donnell, 

608 F.3d 546 (9th Cir. 2010) ................................................................................52 

United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 

489 U.S. 749 (1989) .................................................................... 21, 22, 25, 28, 29 

Van Hollen v. FEC, 

811 F.3d 486 (D.C. Cir. 2016) ................................................................ 45, 46, 49 

Vill. of Barrington, Ill. v. Surface Transp. Bd., 

636 F.3d 650 (D.C. Cir. 2011) .............................................................................30 

STATUTES

2 U.S.C § 30101 ......................................................................................................... 4 

5 U.S.C. § 552(b)(7)(C) .......................................................................................7, 20 

5 U.S.C. § 706(2) .............................................................................................. 14, 16 

5 U.S.C. § 706(2)(A) ................................................................................................16 

5 U.S.C. § 706(2)(C) ................................................................................................16 

15 U.S.C. § 57b-2(b) .................................................................................................. 3 

15 U.S.C. § 57b-2(f)................................................................................................... 3 

52 U.S.C. § 30106(c) ........................................................................................ 33, 38 

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

52 U.S.C. § 30109(a)(1) ...........................................................................................11 

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

52 U.S.C. § 30109(a)(4) ...........................................................................................32 

52 U.S.C. § 30109(a)(4)(A)(i) ................................................................................... 6 

*52 U.S.C. § 30109(a)(4)(B)(ii) ................................................................... 7, 18, 32 

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52 U.S.C. § 30109(a)(12)(A) ..................................................................................... 6 

52 U.S.C. § 30122 ................................................................................................9, 52 

REGULATIONS

11 C.F.R. § 4.4(b) ...................................................................................................... 7 

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

*11 C.F.R. § 4.5(a)(7)(iii) ........................................................................................23 

11 C.F.R. § 5.4(a)(4) ............................................................................................7, 23 

11 C.F.R. § 111.6(a) ................................................................................................... 5 

11 C.F.R. § 111.6(b) .................................................................................................. 5 

11 C.F.R. § 111.9 .....................................................................................................11 

11 C.F.R. § 111.9(b) .................................................................................................. 6 

11 C.F.R. § 111.17(b) ..............................................................................................38 

11 C.F.R. § 111.19(b) ..............................................................................................37 

11 C.F.R. § 111.20 .......................................................................... 15, 32, 36, 37, 42 

*11 C.F.R. § 111.20(a) .............................................. 7, 18, 35, 36, 37, 38, 39, 41, 43 

11 C.F.R. § 111.20(b) ....................................................................................... 36, 37 

11 C.F.R. § 111.20(c) ........................................................................................ 36, 37 

12 C.F.R. § 1070.41(c) ............................................................................................... 2 

17 C.F.R § 200.80(b) ................................................................................................. 2 

17 C.F.R § 203.2 ........................................................................................................ 2 

17 C.F.R § 203.5 ........................................................................................................ 2 

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AGENCY PROCEDURES 

Agency Procedure for Notice to Respondents in Non-Complaint Generated 

Matters, 74 Fed. Reg. 38,617 (Aug. 4, 2009) ......................................................... 5 

*Disclosure of Certain Documents in Enforcement and Other Matters, 

81 Fed. Reg. 50,702 (Aug. 2, 2016) .... 8, 15, 17, 18, 23, 27, 29, 30, 31, 40, 43, 47 

FEDERAL RULES

Fed. R. Civ. P. 65(a)(2) ............................................................................................16 

OTHER AUTHORITIES

Citizens for Responsibility & Ethics in Wash., CREW Requests FEC 

and DOJ Investigate American Conservative Union’s Illegal Conduit 

Contribution (Feb. 27, 2015) ................................................................................40 

Statement of FEC Comm’r Weintraub, MUR 5659, In the Matter of 

Democratic Party of Haw. (July 14, 2005) ............................................................ 5 

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GLOSSARY 

APA Administrative Procedure Act 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

FOIA Freedom of Information Act 

MUR Matter Under Review 

OGC Office of the General Counsel of the Federal Election 

Commission 

PAC Political Action Committee 

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STATEMENT OF JURISDICTION 

This is an appeal from the District Court’s March 23, 2018 final order 

denying Plaintiffs’ efforts to enjoin the FEC from identifying Plaintiffs by name in 

materials to be publicly released after the close of one of the FEC’s investigations. 

The District Court had subject matter jurisdiction over this case under 28 U.S.C. 

§ 1331 and 5 U.S.C. §§ 702-706. Plaintiffs filed a timely notice of appeal on April 

11, 2018. Accordingly, this Court has jurisdiction pursuant to 28 U.S.C. § 1291. 

LIST OF KEY STATUTES, REGULATIONS, AND AGENCY POLICIES 

The pertinent statutes and regulations are: 

5 U.S.C. § 552(b)(7)(C) 

52 U.S.C. § 30109(a)(1) 

52 U.S.C. § 30109(a)(2) 

52 U.S.C. § 30109(a)(4)(A)(i) 

52 U.S.C. § 30109(a)(4)(B)(i), (ii) 

52 U.S.C. § 30109(a)(12)(A) 

11 C.F.R. § 4.5(a)(7)(iii) 

11 C.F.R. § 111.6 

11 C.F.R. § 111.9 

11 C.F.R. § 111.20 

81 Fed. Reg. 50,702 (Aug. 2, 2016) 

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These statutes, regulations, and policies are reprinted in the addendum to this 

brief.

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INTRODUCTION 

This case is about whether the FEC (alternatively, “the Commission”) may 

publicly disclose, through the release of materials related to a closed investigation, 

the identities of a trust and its trustee that (1) the Commission expressly declined 

even to investigate for violations of federal election laws, (2) were afforded none 

of the procedural due process required by the Federal Election Campaign Act 

(“FECA”), FEC regulations, and the Commission’s standard practices, (3) have 

never been found – even under the most minimal legal standard – to have violated 

any law, and (4) have since been accused by a sitting FEC Commissioner of 

violating the law through the very conduct the FEC formally declined to 

investigate. The answer, under the Freedom of Information Act (“FOIA”), the 

FECA, and the First Amendment, is “no.”

In looking to disclose Plaintiffs’ identities, the FEC seeks to accomplish 

through public shaming what it was unwilling and unable to do through the 

Commission’s detailed and mandatory enforcement processes – i.e., brand 

Plaintiffs as federal election law violators. This compelled disclosure outside of 

formal FEC processes is impermissible under FECA and FOIA (which FEC 

disclosure regulations and policies expressly incorporate). It also exerts a 

significant chilling effect on core First Amendment activity by discouraging 

political activity not found to have violated any law. Finally, the FEC’s erroneous 

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and unreasonable application of its disclosure policy in no way would advance the 

kinds of governmental interests in deterrence or the government’s own 

accountability that have traditionally warranted the extraordinary step of 

publishing investigatory materials about non-parties to a government investigation.

Indeed, the FEC’s assertion that it may name and shame any individual or 

entity that is part of an investigation is antithetical to the Commission’s mission 

and purpose. This Court has reiterated time and again the FEC’s duty to safeguard 

First Amendment rights when enforcing FECA. While Congress has enshrined in 

law the principle that the names of witnesses, subjects, and others identified in law 

enforcement records should not be disclosed, the FEC seeks in this case to 

dramatically depart from this core principle. 

The critical First Amendment interests at stake are at their zenith for an 

agency that regulates political speech and conduct. The FEC’s disclosure of 

investigative materials warrants greater caution than for agencies that enforce 

business regulations or prosecute crimes. Yet other federal investigative agencies 

adhere to the non-disclosure principle,3 and for good reason. In addition to the 

3

See, e.g., 17 C.F.R §§ 200.80(b); 203.2; 203.5 (providing that investigatory 

materials compiled in SEC investigations, including internal reports, are nonpublic 

and not subject to disclosure); 12 C.F.R. § 1070.41(c) (providing that, when it 

discloses information, the Consumer Financial Protection Bureau may not 

“identify, directly or indirectly, any particular person to whom the confidential 

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privacy interests implicated when private citizens are named in law enforcement 

records without a finding of wrongdoing, the rule against disclosure provides 

practical benefits. If the FEC’s shortsighted view of its role prevails, witnesses will 

be less likely to cooperate with an investigation, knowing that they might have 

their names dragged through the public square if they are merely part of the FEC’s 

investigation, even where they are given no opportunity to defend themselves and 

where the Commission has never found that they violated the law. The FEC’s 

position would permit any Commissioner who disapproves of the witness’s 

conduct to publicly declare the witness’s guilt – notwithstanding the lack of due 

process. 

In dismissing Plaintiffs’ arguments, the District Court ignored the express 

statutory language of FECA and FOIA, misstated Plaintiffs’ First Amendment 

interests in engaging in political participation without being tarred with charges 

they had no opportunity to answer, and uncritically accepted the FEC’s boilerplate 

and unsubstantiated assertions of the public interest in disclosure of Plaintiffs’ 

identities. This Court should reverse the District Court’s decision; reject the FEC’s 

efforts to brand Plaintiffs as lawbreakers without ever having made a finding that 

information pertains”); 15 U.S.C. § 57b-2(b), 2(f) (providing for confidentiality of 

investigations by the Federal Trade Commission). 

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they violated FECA; and maintain Plaintiffs’ fundamental statutory and 

constitutional rights to privacy and political participation. 

ISSUES PRESENTED FOR REVIEW 

Whether the FEC’s disclosure of Plaintiffs’ identities in connection with a 

closed investigation violates FECA, FOIA, and the First Amendment, where (1) 

the FEC failed to find that there was reason to believe Plaintiffs violated federal 

election laws and never named them as respondents to an administrative 

proceeding and investigation; (2) Plaintiffs received none of the due process 

protections afforded such respondents; and (3) an FEC Commissioner has publicly 

accused Plaintiffs of violating the law. 

STATEMENT OF THE CASE 

I. Statutory and Regulatory Framework 

A. FEC Investigations 

FECA, 2 U.S.C §§ 30101 et seq., establishes the FEC, which is empowered 

to investigate potential violations of federal election laws, including violations 

alleged in administrative complaints filed by private citizens. FECA sets forth a 

detailed framework governing the initiation and conduct of FEC investigations. 

Upon receiving an administrative complaint, the FEC must provide written 

notice of the complaint to any person alleged in the complaint to have violated 

FECA (a “respondent”) and give the respondent an opportunity to demonstrate in 

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writing why the complaint provides no basis for the Commission to take action 

against them. 52 U.S.C. § 30109(a); 11 C.F.R. § 111.6(a). The FEC must also give 

the respondent notice and an opportunity to respond before taking any vote on the 

complaint (other than a vote to dismiss it). 52 U.S.C. § 30109(a); 11 C.F.R. 

§ 111.6(b). If the FEC decides by an affirmative vote of four Commissioners that it 

has reason to believe a respondent violated, or is about to violate, FECA, it must 

provide the respondent with the factual basis for its determination and may then 

conduct an investigation into the alleged violation. 52 U.S.C. § 30109(a)(2). If, in 

the course of its investigation, the Commission determines that a party not named 

in the administrative complaint should be added as a respondent, its ordinary 

practice, consistent with the statutory requirements governing complaints against 

originally-named respondents, is to afford that party an opportunity to respond 

before the Commission holds a “reason to believe” vote that will trigger 

investigation of that respondent. See, e.g., 52 U.S.C. § 30109(a); Agency 

Procedure for Notice to Respondents in Non-Complaint Generated Matters, 74 

Fed. Reg. 38,617 (Aug. 4, 2009); see also Statement of FEC Comm’r Weintraub, 

MUR 5659, In the Matter of Democratic Party of Haw. (July 14, 2005) (stating 

that it is “a matter of fundamental fairness” that the Commission “uniformly” 

afford persons “the opportunity to answer the charges” against them before a 

reason-to-believe vote).

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If the Commission finds no reason to believe that a respondent has violated 

FECA or otherwise terminates its proceedings, the FEC’s Office of General 

Counsel (“OGC”) is required to advise both the complainant and the respondent by 

letter. 11 C.F.R. § 111.9(b). 

If the FEC finds reason to believe a FECA violation has occurred and 

conducts an investigation, it is then authorized to determine, again upon an 

affirmative vote of four Commissioners, that there is probable cause to believe a 

respondent violated FECA. 52 U.S.C. § 30109(a)(4)(A)(i). Upon such a finding of 

probable cause, the statute requires the FEC to attempt to prevent or correct such 

violation through “informal methods of conference, conciliation, and persuasion.” 

Id. One potential result of these efforts can be a “conciliation agreement” between 

the Commission and the respondent, which also requires an affirmative vote of 

four commissioners to be accepted. Id. A conciliation agreement “is a complete bar 

to any further action by the Commission.” Id.

B. Public Disclosure of Information Relating to FEC Investigations 

FECA and FEC regulations contain a detailed framework for the publication 

of information related to the Commission’s investigations. FECA provides that 

“[a]ny notification or investigation . . . shall not be made public.” Id. at 

§ 30109(a)(12)(A). The statute only provides for disclosure of a conciliation 

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agreement and “a determination that a person has not violated” federal election 

laws. 52 U.S.C. § 30109(a)(4)(B)(ii). 

The FEC’s regulation relating to disclosure states that “[i]f the Commission 

makes a finding of no reason to believe or no probable cause to believe or 

otherwise terminates its proceedings, it shall make public such action and the basis 

therefor.” 11 C.F.R. § 111.20(a). 

FEC regulations also incorporate provisions from FOIA, including FOIA 

“Exemption (7)(C),” which exempts from disclosure “records or information 

compiled for law enforcement purposes, but only to the extent that the production 

of such law enforcement records or information . . . could reasonably be expected 

to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. 

§ 552(b)(7)(C). The FEC’s regulations make clear that the Commission will not 

disclose information subject to this FOIA exemption. See 11 C.F.R. § 4.5(a)(7) 

(mirroring FOIA (7)(C) exemption for “records or information compiled for law 

enforcement purposes”); see also 11 C.F.R. § 5.4(a)(4) (providing that “nonexempt” investigatory materials shall be placed on the public record); 11 C.F.R. 

§ 4.4(b) (providing that the “Commission shall make available . . . all non-exempt

Agency records”) (emphasis added). 

Following this Court’s decision in American Federation of Labor & 

Congress of Industrial Organizations v. Federal Election Commission, 333 F.3d 

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168 (D.C. Cir. 2003) (“AFL-CIO”), which struck down the Commission’s prior 

disclosure policy because it failed to adequately protect First Amendment rights, 

the FEC adopted a revised policy regarding the disclosure of investigatory 

documents. See Disclosure of Certain Documents in Enforcement and Other 

Matters, 81 Fed. Reg. 50,702 (Aug. 2, 2016) (“Disclosure Policy”). The Disclosure 

Policy enumerates the specific types of documents the FEC will generally disclose 

at the conclusion of enforcement proceedings, id. at 50,703, and also states that the 

Disclosure Policy “does not alter any existing regulation or policy requiring or 

permitting the Commission to redact documents, including those covered under 

this policy, to comply with FECA, the principles set forth by the court of appeals in 

AFL-CIO, and the FOIA,” id. at 50,704. Under AFL-CIO, the FEC must provide a 

“First Amendment justification for publicly disclosing” information it “compile[d] 

. . . relating to speech or political activity for law enforcement purposes.” 333 F.3d 

at 179 (citation omitted). 

II. Factual and Procedural Background 

John Doe 2 (hereafter “the Trust”) is a trust, and John Doe 1 (hereafter “the 

Trustee”) is its trustee. As is relevant to this appeal, the Trust purportedly 

transferred a sum of money to one of the named respondents investigated by the 

FEC as described below. At no point has either Plaintiff conceded, nor has the FEC 

determined, that any such transfer would constitute a reportable event subject to 

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9 

FECA’s disclosure provisions. The FEC has never found that Plaintiffs were the 

“source” of the contribution for purposes of 52 U.S.C. § 30122, and Plaintiffs have 

not taken a position on this question.4

A. MUR 6920 

In February 2015, a third party filed an administrative complaint with the 

FEC alleging violations of FECA in connection with a $1.71 million contribution 

to the Now or Never Political Action Committee (“PAC”), an independent 

expenditure-only committee, or “SuperPAC,” made in 2012 in the name of the 

American Conservative Union. This complaint caused the FEC to open Matter 

Under Review (“MUR”) 6920. That matter concluded on October 31, 2017, when 

the FEC entered into a conciliation agreement with four respondents – (1) 

Government Integrity, LLC, which was alleged to have provided $1.8 million to 

the American Conservative Union that later formed the $1.71 million contribution 

to Now or Never PAC; (2) the American Conservative Union; (3) Now or Never 

PAC; and (4) the Now or Never PAC’s treasurer.5 The administrative complaint 

did not name either Plaintiff as a respondent; neither Plaintiff was ever added to 

4

 For this reason, the FEC’s assertion to this Court in its motion for an expedited 

briefing schedule that it is “undisputed” John Doe 2 was the “source of the 

contribution at issue” is erroneous and misleading. Mot. to Expedite at 12. 

5

 The full published casefile, including the original complaint filed with the FEC, is 

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

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 24 of 84
10 

MUR 6920 as a respondent; neither Plaintiff was party to or named in the 

conciliation agreement; and neither Plaintiff received written notice from OGC of 

the complaint or any Commission vote with respect to Plaintiffs. Nor were the 

Plaintiffs formally notified of the termination of proceedings in MUR 6920. In 

short, neither Plaintiff was ever named or treated as a respondent.

B. Plaintiffs’ Involvement in MUR 6920 

Plaintiffs’ sole involvement in MUR 6920 came almost five years after the 

contribution that gave rise to the administrative complaint and two-and-a-half 

years after the filing of that complaint. In August 2017, after the OGC identified 

the Trust as an entity that purportedly transferred funds to Government Integrity, 

LLC (which transferred funds to American Conservative Union, which made a 

contribution to Now or Never PAC), the FEC served both Plaintiffs with a 

subpoena in connection with MUR 6920. JA213. At that time, the FEC sent a letter 

to counsel for the Trustee expressly stating that “the Commission does not consider 

your client a respondent in this matter, but a witness only.” Id. (emphasis added). 

Plaintiffs did not respond to the subpoena, and on September 15, 2017, 

unbeknownst to Plaintiffs, and without their being given notice or an opportunity 

to respond, OGC recommended to the Commission that it (1) find reason to believe 

Plaintiffs, to whom OGC referred by name, violated FECA in connection with 

MUR 6920, and (2) authorize a subpoena enforcement action in federal district 

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11 

court. Id. On September 20, 2017, the Commission declined to follow these 

recommendations and thus, among other things, declined to find reason to believe 

Plaintiffs violated FECA. JA135-37.

At no point before the Commission’s September 20 decision were Plaintiffs 

(1) added to MUR 6920 as respondents, (2) notified of OGC’s recommendation or 

given any other indication that they may have been accused of having violated 

FECA, or (3) provided an opportunity to respond to OGC’s recommendation. As 

two Commissioners later observed, this lack of process was “irregular,” JA207 n.2: 

Under FECA and the FEC’s ordinary practice, an entity accused of violating FECA 

would be entitled to (1) notice of the allegations of illegality (including, where the 

entity is not named in an original complaint, through formal addition to the MUR 

as a respondent) and (2) an opportunity to respond to the allegations before the 

commission takes any action. See 52 U.S.C. § 30109(a)(1). Plaintiffs, who were 

never added as respondents to MUR 6920, and indeed were expressly assured by 

OGC that they were not considered respondents, received no such process. Nor 

were they notified in writing of any “termination of proceedings” under MUR 

6920 pursuant to FEC regulations, 11 C.F.R. § 111.9 − either after the

Commission’s September 20, 2017 vote declining to adopt OGC’s “reason to 

believe” recommendations or upon execution of the conciliation agreement 

between the FEC and the four respondents in that matter. 

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Indeed, it was only upon initiation of this litigation and the FEC’s 

subsequent release of the investigative materials in MUR 6920 that Plaintiffs 

learned they had been accused of anything and that there had been a Commission 

vote whether to find reason to believe they violated FECA. After execution of the 

conciliation agreement between the FEC and the respondents, counsel for Plaintiffs 

objected to any potential publication of Plaintiffs’ names in connection with the 

release of the MUR 6920 investigative file. After the FEC refused to redact 

Plaintiffs’ names from the documents they planned to release, Plaintiffs brought 

this action, and the parties reached agreement that the FEC would release a 

redacted version of the MUR 6920 file pending resolution of this litigation. Thus, it 

was only upon the FEC’s response to their inquiries that Plaintiffs learned anything 

about the OGC recommendations relating to them and the Commission’s vote.6

The impact of the lack of process provided to Plaintiffs became even more 

evident after the conclusion of MUR 6920. Following the commencement of this 

litigation, but before the Commission released the FEC’s materials to the public in 

6

 The documents the FEC has published in redacted form include: (1) the 

certification of the FEC’s September 20, 2017 vote in which the Commissioners, 

inter alia, declined to adopt OGC’s “reason to believe” recommendation regarding 

Plaintiffs; (2) OGC’s September 15, 2017, report making this recommendation; (3) 

correspondence and related pleadings submitted by the FEC or Respondents in 

MUR 6920 that reference Plaintiffs; (4) statements of reasons issued by two sets of 

FEC Commissioners in MUR 6920 that reference Plaintiffs; and (5) administrative 

forms signed by either the Trustee or the Trust. See JA93-211. 

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redacted form, FEC Commissioner Ellen Weintraub published, via the social 

media service Twitter, her redacted Statement of Reasons for supporting OGC’s 

September 15, 2017, recommendations relating to Plaintiffs. JA215; JA203-06. 

Although the Commission failed to find reason to believe Plaintiffs committed any 

illegal conduct and afforded them no formal process as part of MUR 6920, 

Commissioner Weintraub’s “tweet” accompanying her statement of reasons 

expressed complete certainty of Plaintiffs’ guilt, saying of them, “these guys 

laundered their millions thru 4 orgs, got away with keeping the name of the true 

donor secret, & are STILL suing @FEC to censor our reports.” JA215. 

Two other FEC Commissioners issued their own Statement of Reasons 

relating to Plaintiffs and MUR 6920. These Commissioners stated they voted 

against finding reason to believe Plaintiffs violated FECA because such finding 

would be based on a “novel theor[y] of violation” raising issues “of first 

impression” when the FEC lacked any “direct evidence” of a violation. JA208-09. 

The statement also acknowledged the lack of due process provided Plaintiffs, 

stating that OGC’s actions were “irregular” in seeking a reason to believe finding 

without first recommending that the Commission name Plaintiffs as respondents 

and affording them an opportunity to respond to the allegations against them. 

JA209. Moreover, the statement noted that Commissioner Weintraub’s tweet had 

“prejudged [Plaintiffs’] guilt” through her characterizations of their alleged 

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14 

conduct in the matter and had “presupposed facts and intent without investigation 

or consideration of a response,” which raised “serious due process concerns . . . .” 

JA209. 

C. Proceedings in the District Court 

After unsuccessfully urging the FEC not to publish their names in 

connection with the Commission’s release of its MUR 6920 investigative 

materials, Plaintiffs filed this action, seeking preliminary and permanent injunctive 

relief to prevent disclosure of their identities in connection with MUR 6920. JA11-

23. Plaintiffs contended that the FEC’s intended disclosure of their names was 

arbitrary and capricious and contrary to law, in violation of the Administrative 

Procedure Act (“APA”) (5 U.S.C. § 706(2)), because disclosure would violate 

FOIA, FECA, FEC regulations, and the First Amendment. JA11-23. Appellants 

also sought emergency relief. JA24-43. After the FEC agreed to release a version 

of the MUR investigative file that omitted Plaintiffs’ names during the pendency of 

this litigation, the District Court denied Plaintiffs’ request for emergency relief as 

moot and consolidated the briefing on the motion for preliminary injunction with 

the briefing on the merits. JA4 (December 18, 2017 minute order outlining this 

approach). 

The District Court entered judgment for the FEC, declining to enjoin the 

disclosure of Plaintiffs’ identities. JA257. The District Court analyzed the 

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15 

disclosure issues using the two-step framework set forth in Chevron U.S.A., Inc. v. 

NRDC, 467 U.S. 837 (1984). The District Court first determined under Chevron

“Step I” that FECA neither unambiguously required disclosure of Plaintiffs’ 

identities, as the FEC argued, nor prohibited disclosure, as Plaintiffs argued. 

JA265-67. The District Court, relying on this Court’s decision in AFL-CIO, 

determined that the key question was whether the Commission’s revised 

Disclosure Policy and its application to the information Plaintiffs sought to shield 

were constitutional under the First Amendment. JA271-76. The District Court held 

that the FEC’s policy and its application in this case were constitutional, 

concluding that Plaintiffs made no colorable claim that their associational or free 

speech rights would be chilled or otherwise infringed by disclosure of their 

identities and that this disclosure, in contrast to the disclosures at issue in AFLCIO, was narrow and “directly related” to the FEC’s investigation. JA273-76. 

Because it determined the challenged disclosures to be constitutional, the District 

Court proceeded to defer to, and to uphold, the FEC’s disclosure policy under 

Chevron “Step II,” holding that the FEC could publish Plaintiffs’ names under its 

regulatory authority to make public the Commission’s “termination of 

proceedings” in a matter. JA277-78 (citing 11 C.F.R. § 111.20). 

The District Court also rejected Plaintiffs’ contention that disclosure of their 

names was prohibited by FOIA Exemption (7)(C), concluding that the Trust lacked 

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a cognizable privacy interest and that the Trustee’s privacy interests were 

“minimal” because his actions were “solely on behalf of the trust and not himself” 

and were outweighed by the FEC’s asserted interests in disclosure. JA279-90. This 

appeal followed. 

STANDARD OF REVIEW 

The District Court consolidated Plaintiffs’ motion for a preliminary 

injunction with a final decision on the merits, pursuant to Fed. R. Civ. P. 65(a)(2). 

In essence, the District Court treated Plaintiffs’ motion as one for summary 

judgment. Therefore, this Court reviews the District Court’s “legal determination 

de novo.” Teva Pharms. USA, Inc. v. FDA, 441 F.3d 1, 3 (D.C. Cir. 2006). In 

effect, this Court reviews the FEC’s decision “under the familiar standards of the 

Administrative Procedure Act.” Id. (citations omitted).

Under the APA, a court “shall . . . hold unlawful and set aside agency action 

. . . found to be . . . in excess of statutory jurisdiction, authority, or limitations, or 

short of statutory right.” 5 U.S.C. § 706(2)(C). This type of illegal agency action 

includes actions that exceed the delegated authority Congress has granted the 

agency. Catholic Health Initiatives v. Sebelius, 617 F.3d 490, 497 (D.C. Cir. 2010). 

Under a separate provision of the APA, a court must set aside any agency action 

found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law.” 5 U.S.C. § 706(2)(A). An agency’s failure to follow its own 

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regulations constitutes arbitrary agency action. Nat’l Envtl. Dev. Ass’ns Clean Air 

Project v. EPA, 752 F.3d 999, 1009 (D.C. Cir. 2014). 

SUMMARY OF ARGUMENT 

Disclosure of Plaintiffs’ identities by the FEC would be illegal for three 

independent reasons. 

1. Disclosure would violate what this Court has long held is a 

“categorical” prohibition under FOIA Exemption (7)(C) against the disclosure of 

individuals named in records and information compiled for law enforcement 

purposes. SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991); 

Nation Magazine, Wash. Bureau v. United States Customs Serv., 71 F.3d 885, 896 

(D.C. Cir. 1995). Under this Court’s precedents, Exemption (7)(C), which is also 

incorporated in the FEC’s regulations and Disclosure Policy, categorically gives 

controlling weight to Plaintiffs’ compelling privacy interests in their personal 

information, requiring that it be kept confidential in light of the public’s 

insubstantial interests in disclosure. SafeCard, 926 F.2d at 1205. The District 

Court’s holdings that John Doe 1 (the trustee) had no significant privacy interests 

because he was merely acting on behalf of John Doe 2 (the trust) and that the Trust 

had no privacy interests at all in its identity contravened these clear Circuit 

precedents. Even if Exemption (7)(C) required balancing of the privacy interests 

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18 

and interests favoring disclosure, that balance tips dispositively in favor of privacy 

here. 

2. Disclosure of Plaintiffs’ identities would also violate the unambiguous 

terms of FECA, which provides for disclosure in only two instances: where there 

has been a finding of no violation of FECA or where the FEC enters into a 

conciliation agreement with a named respondent, 52 U.S.C. § 30109(a)(4)(B)(ii) – 

neither of which occurred here. The FEC therefore is without authority to disclose 

Plaintiffs’ identities under the unambiguous statutory language. To permit the 

FEC’s conduct here would allow it to usurp Congress’s role in setting the bounds 

of permissible disclosure in the sensitive area of the enforcement of campaign 

finance law. 

Even if FECA permitted disclosure, the FEC’s regulations and Disclosure 

Policy do not allow it, and the FEC’s contrary view was manifestly unreasonable. 

Specifically, the FEC’s regulation allowing disclosure of information in connection 

with the Commission’s “termination of proceedings,” 11 C.F.R. § 111.20(a), 

cannot be read to authorize disclosure of Plaintiffs’ identities, given that the FEC 

never initiated any “proceedings” against them, never took action against them, 

and Plaintiffs received none of the due process afforded respondents under FECA, 

FEC regulations, and the Commission’s ordinary practice. And there has been no 

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showing that the names of Plaintiffs were a “basis therefor” for the termination of 

proceedings. 

3. Disclosure of Plaintiffs identities would also violate the First 

Amendment. Because, as this Court and the Supreme Court have consistently held, 

FEC regulation – including the release of investigative information – implicates 

core constitutionally-protected political speech, this Court held in AFL-CIO that 

the FEC must justify its release of information under the First Amendment. The 

District Court’s determination that no significant First Amendment interests were 

implicated by the FEC’s disclosure of identifying information contravened these 

clear precedents. Plaintiffs have a compelling First Amendment interest in being 

identified in connection with an FEC enforcement proceeding, especially where a 

Commissioner branded them as lawbreakers even though there has been no finding 

that they violated FECA. Such a public attack would have a clear chilling effect on 

speech and political participation. On the other hand, the FEC can point to no 

interest in deterrence (since Plaintiffs’ conduct was never found to be wrongful) or 

in agency accountability that would be advanced by releasing the identities of 

individuals and entities that the Commission has not decided to investigate. In 

short, the First Amendment does not allow the FEC to “deter” protected political 

activity through the use of public shaming in lieu of a formal process that provides 

the respondent with notice and an opportunity to respond to claims of illegality. 

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ARGUMENT 

I. FOIA Exemption (7)(C) and FEC Regulations and Policies Applying 

this Exemption Categorically Prohibit Release of Plaintiffs’ Identities. 

FOIA Exemption 7(C) exempts from disclosure “records and information 

compiled for law enforcement purposes” whose release “could reasonably be 

expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. 

§ 552(b)(7)(C). There can be no dispute that the references to the Trust and Trustee 

in the FEC’s files constitute “records and information” compiled for law 

enforcement purposes. See FBI v. Abramson, 456 U.S. 615, 631-32 (1982). Thus, 

the question before this Court is whether disclosure of Plaintiffs’ identities, in light 

of FOIA Exemption (7)(C), is arbitrary and capricious under the APA. 

“[I]n a long line of FOIA cases,” this Court has held “that disclosure of the 

identities of private citizens mentioned in law enforcement files constitutes an 

unwarranted invasion of privacy and is thus exempt under 7(C).” Nation Magazine, 

71 F.3d at 896 (emphasis in original; collecting authorities). “In other words, 

names are exempt from disclosure – regardless of the public interest asserted” for 

disclosure. AFL-CIO v. FEC, 177 F. Supp. 2d 48, 61 (D.D.C. 2001), aff’d on other 

grounds, 333 F.3d 168 (D.C. Cir. 2003).

Indeed, this Court has unequivocally held that Exemption (7)(C) 

“categorically” exempts from disclosure the identities of subjects, witnesses, and 

informants contained in government law enforcement files. SafeCard, 926 F.2d at 

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21 

1206 (D.C. Cir. 1991) (emphasis added). The one narrow exception to this rule, not 

implicated here, is where “access to the names and addresses of private individuals 

. . . is necessary in order to confirm or refute compelling evidence that the agency 

is engaged in illegal activity.” Id.; see also AFL-CIO, 177 F. Supp. 2d at 61 

(disclosure of names prohibited “unless disclosure would bear directly on illegal 

agency activity”). This Court further clarified the scope of the categorical 

SafeCard rule in Nation Magazine, where it explained that “[a]s a general rule, 

SafeCard directs an agency to redact the names, addresses, or other identifiers of 

individuals mentioned in investigatory files in order to protect the privacy of those 

persons.” 71 F.3d at 896. 

Although analyzing a FOIA exemption normally requires a court to balance 

the public interest in disclosure against the asserted privacy interest, in SafeCard

this Court accepted the Supreme Court’s invitation in Department of Justice v. 

Reporters Committee for Freedom of the Press to adopt a categorical rule where, 

for certain kinds of Exemption 7(C) cases, “the balance characteristically tips in 

one direction.” 489 U.S. 749, 776 (1989). This Court took this approach in 

SafeCard because it determined that the public interest in disclosure of the 

identities of individuals named in law enforcement files is “not just less 

substantial” than the identified individuals’ privacy interests, “it is insubstantial.” 

SafeCard, 926 F.2d at 1205 (emphasis added). This rule follows from the Supreme 

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22 

Court’s holding in Reporters Committee that the purpose behind FOIA – i.e., 

shedding “light on an agency’s performance of its statutory duties,” 489 U.S. at 

773 − was “not fostered by disclosure of information about private citizens that is

accumulated in various governmental files [which] reveals little or nothing about 

an agency’s own conduct.” Id. In such cases, the inquiry is more about “one private 

citizen seeking information about another,” id. – which decidedly is not the 

purpose of FOIA. 

In contrast to the government’s insubstantial interest in disclosure, this Court 

has stated that “[t]here can be no clearer example of an unwarranted invasion of 

personal privacy than to release to the public that another individual was the 

subject” of a law enforcement investigation. Fund for Const. Gov’t v. Nat’l 

Archives and Records Serv., 656 F.2d 856, 864 (D.C. Cir. 1981) (quoting Baez v. 

United States DOJ, 647 F.2d 1328, 1338 (D.C. Cir. 1980)). Thus, in light of the 

urgent privacy interest and utter lack of countervailing public interest in 

circumstances involving the disclosure of the identities of subjects and witnesses of 

law enforcement investigations, this Court held in SafeCard that the balancing test 

always tilts towards the privacy interest, thus justifying the categorical rule against 

disclosure. See SafeCard, 926 F.2d at 1206. 

FEC regulations expressly incorporate FOIA Exemption (7)(C) into the 

Commission’s own rules governing the release of investigative information. See 11 

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C.F.R. § 4.5(a)(7)(iii) (providing that no requests for records shall be denied 

release under FOIA unless the record contains, inter alia, information subject to 

Exemption (7)(C)); see also 11 C.F.R. § 5.4(a)(4) (providing that “non-exempt” 

investigatory materials shall be placed on the public record). The FEC’s Disclosure 

Policy reiterates that the agency’s historical practice has been not to publish 

“materials exempt from disclosure under . . . [FOIA],” 81 Fed. Reg. at 50,702 

(citing 11 C.F.R. § 5.4(a)(4)), and states that the new policy “does not alter any 

existing regulation or policy requiring or permitting the Commission to redact 

documents, including those covered by this policy, to comply with . . . FOIA,” id. 

at 50,704. 

Thus, both because FOIA itself contains a “categorical” rule against 

identifying individuals in law enforcement files and because the FEC has 

incorporated FOIA requirements into its own regulations and policies, the FEC’s 

publication of the identities of Plaintiffs in this case gives rise to a so-called 

“reverse FOIA” claim under the APA for agency action that is arbitrary and 

capricious or contrary to law. See AFL-CIO, 177 F. Supp. 2d at 61-63 (sustaining 

reverse FOIA claim against FEC for identifying individual identities exempted 

from disclosure under Exemption (7)(C)); see also Tripp v. United States Dep’t of 

Def., 193 F. Supp. 2d 229, 238-40 (D.D.C. 2002) (agreeing that a violation of 

Exemption (7)(C) can give rise to a “reverse FOIA” claim under the APA). 

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Because the “disclosure of the identities of private citizens mentioned in law 

enforcement files constitutes an unwarranted invasion of privacy,” this Court has 

held that “SafeCard directs an agency to redact the names . . . of individuals 

mentioned in investigatory files in order to protect the privacy of those persons.” 

Nation Magazine, 71 F.3d at 896. Thus, a person may sue under the APA to 

prevent an “agency [from] acting unlawfully by releasing information” that is 

“require[d] to be withheld.” Tripp, 193 F. Supp. 2d at 239; see also AFL-CIO, 177 

F. Supp. 2d at 61-63. 

The District Court in this case barely considered Plaintiffs’ reverse FOIA 

claim when it declined to block the FEC from publishing Plaintiffs’ identities in 

connection with materials relating to MUR 6920. With respect to the Trustee, the 

District Court held that because his actions “were solely on behalf of the trust, not 

himself . . . his asserted privacy interests are minimal,” JA280 − even though the

FEC documents, in unredacted form, clearly identify him by name, not just as 

trustee of the Trust. With respect to the Trust, the District Court asserted 

summarily that the Trust, as a matter of law, lacked any privacy interests 

implicated by Exemption (7)(C). The District Court was incorrect as to both the 

Trust and the Trustee: Exemption (7)(C) unambiguously prohibits disclosure of 

both their identities. 

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A. The Trustee Has a Personal Privacy Interest Protected Under 

Exemption 7(C). 

This Court has held unequivocally and repeatedly that Exemption (7)(C)’s 

“categorical” rule against disclosure prohibits “disclosure of the identities of 

private citizens mentioned in law enforcement files.” Nation Magazine, 71 F.3d at 

896 (noting the “long line of FOIA cases” finding such disclosure to be “an 

unwarranted invasion of privacy and . . . thus exempt under (7)(C) (citations 

omitted)). The Trustee’s identity – his name − is exactly the information that the

FEC seeks to make public in connection with MUR 6920. But “disclosure of 

records regarding private citizens, identifiable by name, is not what the framers of 

the FOIA had in mind.” Reporters Comm. for Freedom of the Press, 489 U.S. at 

765 (emphasis added). 

The fact that the Trustee’s actions that are of interest to the FEC were 

“solely on behalf of” the Trust has no legal relevance and in no way detracts from 

the fact that his name would be used to identify him personally. Indeed, taken to its 

logical conclusion, this reasoning would broadly eliminate Exemption (7)(C)’s 

protection for individuals in any case of a FOIA request seeking law enforcement 

information about individuals acting as an employee or agent or in similar 

capacities – a sweeping outcome unsupported by any legal authority and clearly at 

odds with this Court’s “categorical” rule against disclosure. Indeed, in AFL-CIO, 

this Court never suggested that the “officials[] [and] employees” whose identifying 

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information was at issue there were entitled to lesser protection simply because 

they were acting on behalf of a labor organization. 333 F.3d at 172. On the 

contrary, it unambiguously recognized the existence of their interests in 

nondisclosure. Id. at 176. And another court has rejected the argument that 

agencies can disclose identities otherwise protected by Exemption (7)(C) merely 

because “the references dealt only with their professional capacities.” See 

Alexander & Alexander Servs. v. SEC, Civ. A. No. 92-1112 (JHG), 1993 WL 

439799, at *10 (D.D.C. Oct. 19, 1993). As that court reasoned, “personal 

information should be kept confidential,” because such information “is irrelevant 

to the inquiry whether the information sheds any light on what [the agency] was up 

to.” Id. (internal quotation marks omitted).

B. Disclosure of the Trust’s Identity Likewise Implicates a Privacy 

Interest Protected by Exemption 7(C). 

The Trust’s legal status does not, as the District Court held, necessarily 

preclude application of Exemption (7)(C). In reaching the opposite conclusion, the 

District Court relied on the Supreme Court’s decision in FCC v. AT&T Inc., 562 

U.S. 397, 409-10 (2011). JA279-90. But that case held only that a corporation does 

not necessarily have personal privacy interests protected by Exemption (7)(C) 

merely because it is regarded as a “person” for certain legal purposes. This Court, 

however, has recognized that where disclosure of business records threatens to 

reveal protected information about a natural person, such disclosures can be 

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27 

precluded under Exemption (7)(C). See Multi Ag Media LLC v. United States 

Dep’t of Agric., 515 F.3d 1224, 1230 (D.C. Cir. 2008). At a minimum, disclosing 

the Trust’s name presents a substantial risk of identifying its trustee, meaning the 

Trust’s identity is likewise protected. A trust is not like a corporation, because 

disclosure of a trust may implicate the privacy interests of natural persons – the 

trust’s settlor, trustee, and beneficiaries. Thus, AT&T does not control this case, 

and the District Court erred in failing to undertake any analysis of whether 

disclosing the Trust would implicate personal privacy rights. 

C. The Public Interest Is Not Served by Disclosure of Plaintiffs’ 

Identities. 

Even if Exemption 7(C) does not categorically prohibit release of Plaintiffs’ 

identities here, the FEC’s Disclosure Policy incorporates FOIA principles, which 

require the balancing of an individual’s interest in privacy against the public 

interest in disclosure before the release of information. ACLU v. United States 

DOJ, 655 F.3d 1, 6 (D.C. Cir. 2011). Balancing these principles in this case 

compels non-disclosure of Plaintiffs’ identities. Accordingly, were the FEC to 

disclose Plaintiffs’ identities it would do so in violation of its own regulations, 

which is unlawful. See Nat’l Envtl. Dev. Ass’ns Clean Air Project, 752 F.3d at 

1009.

Plaintiffs have a clear and compelling interest in not being publicly 

associated with actions by others that have been found to violate the law. See Stern 

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v. FBI, 737 F.2d 84, 91-92 (D.C. Cir. 1984) (noting that an individual has “a strong 

interest in not being associated unwarrantedly with alleged criminal activity”). This 

interest is particularly powerful given that Plaintiffs have been subjected to 

accusations by an FEC Commissioner on social media that they acted illegally as 

money launderers. If Plaintiffs’ identities were disclosed, these accusations would 

clearly harm their reputations, despite the fact that Plaintiffs have never been 

afforded notice and an opportunity to respond to those accusations in agency 

proceedings. See Judicial Watch, Inc. v. Nat’l Archives & Records Admin., 876 

F.3d 346, 350 (D.C. Cir. 2017) (noting that the disclosure of requested information 

would “produce the unwarranted result of placing [the subject of the information] 

in the position of having to defend her conduct in the public forum outside of the 

procedural protections normally afforded the accused in criminal proceedings”) 

(citation omitted)). 

By contrast, the only public interest to be weighed against these privacy 

interests under FOIA “is one that focuses on the citizens’ right to be informed 

about what their government is up to.” Davis v. United States Dep’t of Justice, 968 

F.2d 1276, 1282 (D.C. Cir. 1992) (citation, internal quotation omitted). As the 

Supreme Court has recognized, disclosure of the identities of individuals in law 

enforcement records does “not shed any light on the conduct of any Government 

agency or official.” See Reporters Comm. for Freedom of the Press, 489 U.S. at 

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29 

773. Indeed, even where disclosure of documents may be appropriate, this Court 

has held that redaction of “the names and identifying information of private 

citizens mentioned in law enforcement files” is appropriate, following the approach 

in SafeCard. See Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of 

Justice, 746 F.3d 1082, 1094 (D.C. Cir. 2014). This is precisely the sort of 

redaction that is recognized by the FEC’s Disclosure Policy. See 81 Fed. Reg. at 

50,704. 

Disclosing Plaintiffs’ names – rather than, for example, referring to them 

generically as a “Trust” and “Trustee” or by pseudonyms − adds nothing to

citizens’ understanding of “what their government is up to.” The District Court’s 

formulation of the public interest – its interest “in the agency’s decision to 

terminate this proceeding involving [respondent] Government Integrity without 

enforcing its subpoenas and following the money back to its source,” JA278 – does 

not change the equation. That interest can be fully advanced, without tarnishing 

Plaintiffs with allegations of illegal conduct they have never had the opportunity to 

respond to, by simply identifying them pseudonymously or generically as the 

purported source of the funds and the subject of an FEC subpoena. 

There is thus no valid public interest to weigh against Plaintiffs’ wellfounded privacy interests. Accordingly, disclosure of their identities would be 

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30 

arbitrary and capricious and contradict the FEC’s own regulations incorporating 

FOIA. 

II. Disclosure of Plaintiffs’ Identities is Arbitrary and Capricious and 

Contrary to FECA. 

In addition to violating the categorical prohibition against disclosure of 

Plaintiffs’ identities afforded by FOIA Exemption (7)(C) (standing on its own and 

as incorporated into the FEC’s regulations and policies), such disclosure is 

unreasonable, arbitrary and capricious, and contrary to law, in violation of the 

APA. In addition, to the extent the FEC’s Disclosure Policy requires disclosure 

exceeding the scope of disclosure allowable under FECA, it is unlawful. 

Plaintiffs challenge the FEC’s interpretation of FECA, as set out in the 

FEC’s regulations and Disclosure Policy. This challenge is governed by the 

familiar two-step Chevron framework. Under this framework, this Court will “stop 

the music at step one if the Congress ‘has directly spoken to the precise question at 

issue’ because [the Court] and the agency—‘must give effect to its unambiguously 

expressed intent.’” Northpoint Tech., Ltd. v. FCC, Inc., 412 F.3d 145, 151 (D.C. 

Cir. 2005) (quoting Chevron, 467 U.S. at 842-43 (alteration omitted)). As part of 

the “Step I” analysis, this Court “consider[s] the provisions at issue in context, 

using traditional tools of statutory construction and legislative history.” AFL-CIO, 

333 F.3d at 172. The agency is owed no deference at this stage. See Vill. of 

Barrington, Ill. v. Surface Transp. Bd., 636 F.3d 650, 660 (D.C. Cir. 2011). “Only 

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31 

if the statute is either silent or ambiguous on the question at issue [does this Court] 

defer to the agency’s reasonable interpretation.” AFL-CIO, 333 F.3d at 173. If this 

is so, the question at Chevron “Step II” is whether the agency’s action “reflects ‘a 

permissible construction of the statute.’” Id. at 175 (quoting Chevron, 467 U.S. at 

843). 

Furthermore, even if the FEC’s interpretation of FECA were valid, the 

FEC’s application of its disclosure regulation and Disclosure Policy is 

impermissible if, as here, it is manifestly unreasonable and contrary to the plain 

language of the regulation. Plaintiffs recognize that, “[a]s a general matter, an 

agency’s interpretation of its own regulations is ‘controlling unless plainly 

erroneous or inconsistent with the regulation.’” Rhea Lana, Inc. v. United States 

DOL, 824 F.3d 1023, 1030 (D.C. Cir. 2016) (quoting Auer v. Robbins, 519 U.S. 

452, 461 (1997) (quotation marks omitted)). However, this Court has held that this 

“deference is unwarranted ‘when it appears that the interpretation is nothing more 

than a convenient litigating position, or a post hoc rationalization advanced by an 

agency seeking to defend past agency action against attack.’” Id. at 1030-31 

(quoting Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155 (2012)). 

Moreover, an “agency interpretation . . . [i]s substantively invalid” when “it 

conflict[s] with the text of the regulation,” because “to defer in such a case would 

allow the agency to create de facto a new regulation.” Perez v. Mortg. Bankers 

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32 

Ass’n, 135 S. Ct. 1199, 1208 (2015). In addition to being contrary to the plain 

language of the regulation and a post hoc justification for an arbitrary agency 

action, the FEC’s application of its regulations here is manifestly unreasonable, 

and this Court will not “defer to an unreasonable agency interpretation of an 

ambiguous regulation.” Menkes v. United States Dep’t of Homeland Security, 637 

F.3d 319, 343 (D.C. Cir. 2011) (citation omitted) (Brown, J., dissenting in part) 

(citing, inter alia, Kidd Commc’ns v. FCC, 427 F.3d 1, 4 (D.C. Cir. 2005)). 

A. The FEC Lacks Authority Under FECA to Disclose Plaintiffs’ 

Identities. 

FECA affirmatively and unambiguously provides for disclosure of two – and 

only two – items: (1) “any conciliation agreement signed by both the Commission 

and the respondent” and (2) FEC “determination[s] that a person has not violated 

[FECA or other federal election laws].” 52 U.S.C. § 30109(a)(4)(B)(ii). Congress 

has spoken clearly and directly on the subject of disclosure of investigative 

information, leaving no gap for the agency to fill.7 Accordingly, no deference is 

owed under Chevron. The FEC lacks authority to disclose Plaintiffs’ identities 

because neither basis for disclosure under FECA applies here. It is undisputed that 

7

 11 C.F.R. § 111.20’s title, “Public disclosure of Commission action (52 U.S.C. 

§ 30109(a)(4)),” itself makes clear that the statutory provision the regulation 

implements is the affirmative disclosure provision found in 52 U.S.C. 

§ 30109(a)(4).

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33 

the conciliation agreement in MUR 6920 did not mention Plaintiffs and thus does 

not raise any disclosure issues. Therefore, the only question here is whether the 

FEC made a determination that Plaintiffs did not violate FECA. As the District 

Court properly concluded, JA266-67, the FEC made no such determination. 

All FEC decisions must be supported by a majority of (i.e., at least four) 

Commissioners, 52 U.S.C. § 30106(c); see also Common Cause v. FEC, 842 F.2d 

436, 449 n. 32 (D.C. Cir. 1988). There was no affirmative vote by four 

Commissioners in this case with respect to Plaintiffs’ conduct one way or another. 

As the District Court recognized, “the record reflects that the Commission did not 

make any ‘determination’ that plaintiffs had not violated [FECA]; it simply did not 

vote to find reason to believe that they had.” JA266-67. The District Court further 

held that “the Commission did not ‘make a finding of no reason’ to believe in this 

case. Rather, all the Commission did with respect to Plaintiffs was decline to make 

a finding that there was reason to believe, even though the OGC asked it to.” 

JA277. This conclusion should end the inquiry at Chevron Step I, as there is no 

authority in FECA to disclose anything with respect to Plaintiffs. The FEC may not 

usurp Congress’s role and authorize disclosure beyond that provided for in the 

statute. 

The FEC’s briefing before the District Court acknowledged that FECA was 

silent with respect to any disclosures beyond that explicitly mandated in the statute. 

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34 

JA241. Nevertheless, the FEC asserted that it had the authority under FECA to fill 

this supposed “gap.” Id. (citing Chevron, 467 U.S. at 842-43). However, this Court 

has rejected such overexpansive views of agency authority. It is axiomatic that 

“[a]gencies owe their capacity to act to the delegation of authority, either express 

or implied, from the legislature.” Ry. Labor Exec. Ass’n v. Nat’l Mediation Bd., 29 

F.3d 655, 670 (D.C. Cir. 1994). As such, an agency does not possess “plenary

authority to act within a given area simply because Congress has endowed it with 

some authority to act in that area.” Id. This Court has held that when Congress 

“direct[s]” an agency by making “express provision” it take a number of specified 

actions, it “could hardly leave room” for an agency to mandate other ones. Albany 

Eng’g v. FERC, 548 F.3d 1071, 1075 (D.C. Cir. 2008). Similarly, as the Tenth 

Circuit recently held, an agency cannot rely on the fact that a statute is “silent” for 

authority to enact a regulation, especially where the statute already provides the 

rule that covers the subject matter on which the agency seeks to regulate. See 

Marlow v. New Food Guy, Inc., 861 F.3d 1157, 1162-63 (10th Cir. 2017). 

Therefore, the FEC may not rely “on the absence of any [express] statutory 

directive to the contrary” for authority to disclose Plaintiffs’ identities. Id. at 1164.8

8

 This Court’s decision in AFL-CIO is not to the contrary. Although the Court 

noted that the governmental interests identified by the Commission in its First 

Amendment analysis “may well justify releasing more information than the 

minimum disclosures” required by FECA, it did not ultimately reach the question 

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35 

B. The FEC’s Regulations Do Not Authorize Disclosure of Plaintiffs’ 

Identities. 

Even if the absence of an express prohibition on disclosing Plaintiffs’ 

identities in FECA means that the FEC could issue regulations authorizing such 

disclosures, the regulations that the FEC has actually issued do not do so. The 

disclosure regulation at issue here, 11 C.F.R. § 111.20(a), provides that “[i]f the 

Commission makes a finding of no reason to believe or no probable cause to 

believe or otherwise terminates its proceedings, it shall make public such action 

and the basis therefor.” As explained above, the District Court correctly concluded 

that the FEC did not make a finding of no reason to believe or no probable cause 

with respect to Plaintiffs. JA277. But the District Court nevertheless erroneously 

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

requiring disclosure in cases where the Commission ‘otherwise terminates its 

proceedings.” JA277-78 (quoting 11 C.F.R. § 111.20(a)). Put another way, the 

District Court held that when the FEC “terminates” its proceedings in a matter, it 

may make public information about individuals or entities who were in any way 

involved in those proceedings – including their identities − even if, as here, they

presented here regarding the Commission’s authority under FECA. 333 F.3d at 

179. Whether the First Amendment might permit disclosure broader than that 

provided for in FECA is a different question and does not control whether 

Congress has authorized such disclosure. 

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36 

were non-parties to those proceedings. For at least three reasons, no reasonable 

reading of § 111.20(a) could authorize the disclosure of Plaintiffs’ names.

First, 11 C.F.R. § 111.20 must be read to permit disclosure of information 

only regarding those against whom the FEC has initiated proceedings, i.e., those 

who are named as respondents and who have received the benefit of the detailed, 

formal procedures FEC regulations establish to allow them to know the charges 

against them and contest allegations before the Commission acts. The type of 

“proceedings” referenced by § 111.20(a) are clearly the formal adversary 

proceedings outlined by FEC regulations, because each of the other actions 

referenced by § 111.20 is the culmination of such a proceeding: “finding[s] of no 

reason to believe or no probable cause,” “finalizing” a “conciliation agreement,” 

and “commence[ment]” of “a civil action.” 11 C.F.R. § 111.20(a), (b), and (c). 

Because none of those actions can, under the regulations, be taken without formal 

adversary proceedings – giving notice to the party who might be subject of adverse 

action (i.e., the respondent) and allowing them an opportunity to respond – it 

follows the term should have the same meaning when determining whether the 

Commission has “otherwise terminate[d] its proceedings.” Cf. Cement Kiln 

Recycling Coalition v. EPA, 493 F.3d 207, 221 (D.C. Cir. 2007) (“general words” 

in regulations are “construed to embrace only objects similar in nature to those 

objects enumerated by the preceding specific words” (citation omitted)). 

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37 

Plaintiffs, by contrast, were not the subject of any action before the 

Commission that could even conceivably fall within the definition of 

“proceedings.” In fact, OGC assured them that they were merely witnesses and not 

subjects of MUR 6920. JA213. And, as two Commissioners have acknowledged, 

Plaintiffs were provided none of the procedural protections afforded under FECA, 

FEC regulations, and ordinary Commission practice to persons against whom 

“proceedings” are initiated. In short, it makes sense to read the disclosure 

provisions to apply only to the kinds of “proceedings” likely to provide formal and 

fair process sufficient to give confidence to the resulting determination, but not to 

the sort of “irregular,” JA207 n.2, ad hoc procedures used here, which afford no 

such protections. 

Second, the regulation by its own terms only authorizes “[p]ublic disclosure 

of Commission action.” 11 C.F.R. § 111.20 (emphasis added). The actions whose 

disclosure the regulation authorizes are all actions that require the affirmative vote 

of at least four Commissioners: Commission “finding[s] of no reason to believe or 

no probable cause,” “finaliz[ing]” a “conciliation agreement,” and 

“commence[ment]” of “a civil action.” 11 C.F.R. § 111.20(a), (b), and (c); see also

§ 111.19(b) (necessary vote to commence civil action). By the same token, the 

regulation applies only when “the Commission . . . otherwise terminates its 

proceedings,” 11 C.F.R. § 111.20(a) (emphasis added), which can only be 

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38 

understood to mean through an affirmative vote of at least four Commissioners. Cf.

Cement Kiln Recycling Coalition, 493 F.3d at 221. Thus, the regulation plainly 

only applies when the Commission affirmatively votes to order proceedings 

terminated, as it sometimes does. The regulation does not apply when the 

Commission simply does not proceed for lack of affirmative vote. This 

understanding accords with the regulations’ rules for the timing of disclosures, 

which specify that they be made within 30 days of the date “on which the required 

notifications are sent.” 11 C.F.R. § 111.20(a). But no notifications are required 

when the Commission does not proceed through mere failure to act; they are 

required when “the Commission finds no probable cause to believe or otherwise

orders a termination of Commission proceedings.” 11 C.F.R. § 111.17(b) 

(emphasis added). And tellingly, the FEC never provided Plaintiffs any notice of 

the proceedings being “otherwise terminated,” suggesting they believed no such 

notice was “required.” 

As the District Court recognized, “[A]ll the Commission did with respect to 

plaintiffs was decline to make a finding that there was reason to believe.” JA277. 

In other words, the Commission did not “otherwise terminate[] its proceedings.” 

Without an affirmative vote, the resulting inaction is not a “decision[] of the 

Commission with respect to the exercise of its duties and powers” under FECA. 52 

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39 

U.S.C. § 30106(c). It resulted from an absence of any Commission decision. 

Accordingly, it triggered no required disclosures. 

Third, the language of the rule does not authorize the disclosure of Plaintiffs’ 

names in connection with the disclosure of the proceedings in MUR 6920. The 

unambiguous language of 11 C.F.R. § 111.20(a) authorizes the Commission to 

disclose two things: (1) the FEC’s action; and (2) the basis for that action. Thus, by 

its plain language, § 111.20(a) authorizes the disclosure of the basis for the FEC’s 

disposition of the proceeding. The FEC’s application of § 111.20(a) to require 

additional disclosure is contrary to the plain language of the regulation, see Rhea 

Lana, Inc., 824 F.3d at 1030, and unreasonable. 

Plaintiffs’ identities did not form any “basis” for the FEC’s disposition of 

MUR 6920. Indeed, Plaintiffs are not even mentioned in the conciliation 

agreement. Although the District Court held that it was reasonable for the FEC to 

disclose Plaintiffs’ names pursuant to § 111.20(a) because they were “involved” in 

the investigation and the conduct at issue, JA278-79, the regulation in no way 

requires making public the identities of non-respondents as part of the disclosure in 

MUR 6920. Indeed, given that MUR 6920 concluded without investigation of 

Plaintiffs’ conduct, much less a determination of probable cause to believe they 

violated the law, referring to Plaintiffs by name (rather than by pseudonym or 

generically as “the Trust” and “the Trustee”) would be manifestly unreasonable 

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40 

and at odds with fundamental notions of privacy enshrined in FECA and FOIA, 

which the FEC expressly incorporates into its Disclosure Policy. 81 Fed. Reg. at 

50,704. 

The other reasons the District Court gave for disclosure do not survive even 

brief scrutiny. Although the District Court asserted that it would be anomalous for 

the FEC’s regulations to fail to authorize disclosure of Plaintiffs’ identities but 

require the disclosure of the identities of those affirmatively exonerated by the 

Commission, JA278, this outcome is completely appropriate. An FEC decision 

affirmatively stating there is no reason to believe or no probable cause to believe 

that a respondent violated FECA is an affirmative exercise of the Commission’s 

power and represents its affirmative judgment that a violation has not occurred or 

should be excused. It is reasonable to require disclosure of the basis for that 

decision, which implicates the public interest in how the FEC exercises its power 

and lifts a cloud of suspicion over the respondent. This outcome is all the more 

appropriate where administrative complainants routinely publicize their claims of 

alleged illegal conduct against named respondents.9 The privacy concerns of 

9

 For instance, the administrative complainant in this matter posted the complaint 

to its public website at the same time it was filed. See Citizens for Responsibility & 

Ethics in Wash., CREW Requests FEC and DOJ Investigate American 

Conservative Union’s Illegal Conduit Contribution (Feb. 27, 2015) 

http://www.citizensforethics.org/legal-filing/crew-fec-doj-investigate-americanUSCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 55 of 84
41 

named respondents are reduced because the Commission is essentially clearing 

them of wrongdoing. In contrast, the FEC did not exercise its power here with 

respect to Plaintiffs, who were not respondents implicated in a complaint, and 

about whom the Commission took no action. There is therefore no accountability 

interest or need to resolve allegations against them that would warrant disclosure. 

The District Court also reasoned that publication of Plaintiffs’ identities was 

justified as part of the FEC’s termination of proceedings in MUR 6920 because 

Plaintiffs were “integrally involved in a narrow, focused investigation” and would 

have had their identities revealed if they had not resisted responding to the OGC 

subpoena. JA278. But the court cited no FEC statement in support of this 

characterization, nor did it justify a leap from authorized disclosure of the “basis” 

for a decision to disclosure of the names of any person “involved” in any way in 

the investigation. Likewise, there is nothing whatsoever in FECA (or for that 

matter FEC regulations) to suggest that the FEC may decide to disclose private 

information of a non-party based on its alleged “integral involve[ment]” in the 

conduct at issue in a MUR. Section 111.20(a) is, like FOIA, aimed at disclosing 

the basis for the Commission’s conduct, not the conduct of others. 

conservative-union-cpac-illegal/. The complainant routinely posts its numerous 

FEC complaints to its website. 

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42 

It is simply not enough that the FEC asserts that “the public must have 

access to the identities, including partisan connections, of such persons” who 

“materially participated in events investigated by the commission” in order to 

“assess the Commission’s nonpartisanship in enforcing the Act.” JA225. Even 

taking that statement at face value falls far short of demonstrating that Plaintiffs’ 

names were “the basis” for the “terminat[ion]” of the proceedings. Moreover, the 

same rationale could be used to override privacy rights completely, because it 

could always be asserted that the undisclosed names of witnesses are necessary “in 

order to assess the Commission’s nonpartisanship in enforcing the Act.” And in 

any event, no FEC Commissioner suggested that the Plaintiffs’ partisan affiliations 

had anything to do with the FEC’s actions. 

Put simply, FECA and 11 C.F.R. § 111.20 do not allow the FEC to have it 

both ways. The FEC seeks to achieve the effect of an affirmative finding that 

Plaintiffs violated FECA, without allowing Plaintiffs to challenge the allegations 

against them. Indeed, the FEC has leveraged the uncertainty created by its 

unlawful course to maximum effect. An FEC Commissioner has issued public 

statements accusing Plaintiffs of “laundering . . . millions” of dollars to hide the 

true source of the contribution at issue and asserting they “got away with [it].” 

JA215. At the same time, OGC asserted in its motion to expedite before this Court 

that it was “undisputed” that Plaintiffs were the source of the contribution, Mot. to 

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43 

Expedite 12, in order to urge this Court to deny relief to Plaintiffs.10 The 

Commissioner’s untested accusations and the FEC’s efforts to pre-judge the source 

of the contribution at issue in MUR 6920 both flow from the FEC’s ability to brand 

as wrongdoers any person or entity that OGC or any one Commissioner suspects of 

wrongdoing without the benefit of the process mandated by FECA. No reasonable 

interpretation of § 111.20(a) could permit this approach, which is the essence of 

arbitrary and capricious conduct.

III. Disclosure of Plaintiffs’ Identities Would Violate Their First 

Amendment Rights. 

Disclosure of Plaintiffs’ identities through release of the unredacted 

investigative file for MUR 6920 is also contrary to law under the APA because it 

violates the First Amendment. Therefore, to the extent the Commission’s 

Disclosure Policy or regulations are interpreted to compel disclosure, they are an 

impermissible interpretation of the statute under Chevron Step II. See AFL-CIO, 

333 F.3d at 179-80. 

Contrary to the District Court’s summary dismissal of the First Amendment 

interests implicated by disclosure of investigatory materials relating to Plaintiffs, 

JA273-76, this Court has held that these kinds of disclosures directly implicate 

10 The assertion in the FEC’s motion is inaccurate. Plaintiffs have never taken a 

position, and the FEC has made no finding, with respect to the source of the 

contribution at issue in MUR 6920. 

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44 

First Amendment rights, and that therefore the Commission must provide a “First 

Amendment justification for publicly disclosing” information “relating to speech 

or political activity for law enforcement purposes.” Id. at 179. The District Court 

failed to apply this Court’s clear precedent and in so doing mischaracterized and 

gave insufficient weight to the core First Amendment interests at stake in this case. 

The FEC here plainly asserts the right to publicly identify individuals and entities it 

alleges engaged in conduct relating to an illegal contribution solely to serve as a 

warning to others that they too might be publicly labeled money launderers or 

other unlawful actors − even where the Commission has not made even an initial

determination that the individual or entity may have done anything wrong. This 

asserted deterrence interest plainly threatens open participation in the electoral 

process, and with it critical First Amendment rights. 

A. Compelled Disclosure of Political Activity in the Context of FEC 

Investigations and Proceedings Implicates First Amendment 

Rights. 

That Plaintiffs have a protectable First Amendment interest in the disclosure 

of their identities in connection with an FEC enforcement proceeding was settled 

by this Court in AFL-CIO. In that case, the FEC sought to disclose information it 

collected from the respondent during an investigation where the FEC did not find 

that the respondent committed any wrongdoing. AFL-CIO, 333 F.3d at 171. The 

same circumstances are present here: The FEC seeks to compel disclosure of 

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45 

information that it asserts would reveal political affiliations and activities. There 

can be no doubt, based on longstanding precedent recognizing the FEC’s unique 

role in regulating core constitutional speech, that this compelled disclosure 

implicates First Amendment rights. 

“The First Amendment affords the broadest protection to . . . political 

expression in order ‘to assure [the] unfettered interchange of ideas for the bringing 

about of political and social changes desired by the people.’” Buckley v. Valeo, 424 

U.S. 1, 14 (1976) (quoting Roth v. United States, 354 U.S. 476, 484 (1957)). In 

Buckley, the Supreme Court held that “compelled disclosure [of political activity 

and affiliations], in itself, can seriously infringe on privacy of association and 

belief guaranteed by the First Amendment.” 424 U.S. at 64. Both the Supreme 

Court and this Court have reiterated this clear rule in the decades since Buckley. In 

McConnell v. FEC, the Supreme Court held that “compelled disclosure [of 

contributors] may impose an unconstitutional burden on the freedom to associate in 

support of a particular cause.” 540 U.S. 93, 198 (2003). This Court, too, has 

recognized that in the area of campaign finance law, “[d]isclosure chills speech,” 

and the values of disclosure and speech “exist in unmistakable tension.” Van 

Hollen v. FEC, 811 F.3d 486, 488 (D.C. Cir. 2016). Therefore, as this Court has 

recognized in this very context, “compelled disclosure of political affiliations and 

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46 

activities can impose just as substantial a burden on First Amendment rights as can 

direct regulation.” AFL-CIO, 333 F.3d at 175. 

Because of the First Amendment interests at stake, the FEC’s role is to act as 

guardian of these interests through its just and proper administration of the election 

laws. As this Court has held, the FEC is “[u]nique among federal administrative 

agencies” because “its sole purpose [is] the regulation of core constitutionally 

protected–activity – ‘the behavior of individuals and groups only insofar as they 

act, speak and associate for political purposes.’” Id. at 170 (quoting FEC v. 

Machinists Non-Partisan Political League, 655 F.2d 380, 387 (D.C. Cir. 1981)). 

“Thus, more than other agencies whose primary task may be limited to 

administering a particular statute, every action the FEC takes implicates 

fundamental rights,” Van Hollen, 811 F.3d at 499 (emphasis added), and the FEC 

has an obligation to tailor “disclosure requirements to satisfy constitutional 

interests in privacy.” Id.

Accordingly, as in every other context where government activity infringes 

on First Amendment rights, the FEC must identify a “substantial government 

interest[]” to justify disclosure. See Buckley, 424 U.S. at 66-68; McCutcheon v. 

FEC, 134 S. Ct. 1434, 1459 (2014). This Court in AFL-CIO identified two such 

interests: “deter[ring] FECA violations, and . . . promot[ing] the agency’s own 

public accountability.” 333 F.3d at 178. The FEC identified these same interests as 

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 61 of 84
47 

justifying the scope of the disclosure called for by its Disclosure Policy. See 81 

Fed. Reg. at 50,703. Neither of these interests supports disclosure here. 

B. Plaintiffs Have Demonstrated a First Amendment Interest in 

Preventing the Disclosure of Their Identities.

1. AFL-CIO Governs this Case, and Plaintiffs Have a Clear 

First Amendment Interest in Preventing Disclosure. 

This Court’s decision in AFL-CIO stands for the broad proposition that, 

because the compelled disclosure of political activities and affiliations inherently 

implicates the First Amendment and the FEC is tasked with safeguarding 

fundamental rights in the context of its investigations, the FEC must justify its 

decision to release identifying material from its investigative file. Instead of 

applying this rule, the District Court essentially limited AFL-CIO to its facts. 

JA271-73. Given its full and proper force, however, AFL-CIO controls the FEC’s 

proposed disclosure here. 

In AFL-CIO, this Court expressed its concern with the chilling effect on 

political participation and effectiveness that would result from compelled 

disclosure of the identities of the respondent’s personnel. See AFL-CIO, 333 F.3d 

at 176, 178. The District Court all but ignored this element of AFL-CIO, focusing 

instead on this Court’s discussion of disclosure of the respondent’s internal 

organizational materials and concluding that no similar concerns applied in this 

case. JA271-73. The District Court committed the same error as the FEC in AFLUSCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 62 of 84
48 

CIO: By contrasting the volume and type of materials that were to be disclosed in 

AFL-CIO, which this Court held only bore on “the strength of the First 

Amendment interests asserted, not to their existence,” AFL-CIO, 333 F.3d at 176, 

against Plaintiffs’ identities, the District Court erroneously held that a First 

Amendment interest did not exist. 

Notably, the FEC in this case has never challenged the existence of 

Plaintiffs’ First Amendment right against compelled disclosure, even though it has 

rigorously defended its asserted interests supporting disclosure. Despite the FEC’s 

position, however, the District Court held that “plaintiffs do not make any claim 

that anyone’s associational rights are being infringed, and disclosing the identities 

of plaintiffs would not involve the disclosure of anyone’s internal operations or 

political strategies.” JA272. The District Court dismissed Plaintiffs’ concerns about 

the chilling effect that would result from the threat of public opprobrium as mere 

“privacy concerns, not . . . constitutional concerns.” JA274. This distinction is 

unsupported, and indeed is directly contradicted, by the relevant precedent. 

Quoting Buckley, this Court held in AFL-CIO that compelled disclosure violates 

the First Amendment because “it intrudes on the ‘privacy of association and belief 

guaranteed by the First Amendment.’” 333 F.3d at 177 (quoting Buckley, 424 U.S. 

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 63 of 84
49 

at 64).11 Therefore, the District Court erred by failing to recognize the critical First 

Amendment interests in this case. 

The chilling effect that would result from this disclosure is consistent with 

the longstanding observations of the Supreme Court and this Court that compelled 

disclosure of political activity chills core First Amendment-protected speech. E.g., 

Van Hollen, 811 F.3d at 488 (noting that “[d]isclosure chills speech”); AFL-CIO, 

333 F.3d at 176 (quoting Buckley, 424 U.S. at 65-66, for the proposition that 

“disclosure of campaign contributions would chill political activity and therefore 

place ‘not insignificant burdens’ on First Amendment rights”). As the Trustee 

stated in his affidavit, disclosure of political activity and affiliations outside of the 

enforcement process will have a chilling effect on speech. JA45. In fact, chilling 

political activity is not an unfortunate side effect of disclosure, it is the FEC’s goal 

here. By disclosing Plaintiffs’ identities, without any finding that their conduct 

violated FECA (and without giving Plaintiffs any opportunity to prove they did 

not), the FEC hopes that others will be put “on notice” that they too could find 

themselves named and shamed as FECA violators without due process if they 

11 Although the quoted passage involved disclosure of an association’s confidential 

materials, the court recognized the First Amendment interest in nondisclosure of 

personal information, as noted above. 

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 64 of 84
50 

participate in the political process in a way even one Commissioner believes is 

inappropriate. JA240. 

The chilling effect of disclosure on Plaintiffs’ First Amendment interests is 

not merely speculative. It is on full display. Since the filing of this lawsuit, 

Plaintiffs have been subjected to public attacks by an FEC Commissioner accusing 

them of money laundering in connection with MUR 6920, even though the FEC 

declined to find “reason to believe” Plaintiffs violated FECA or investigate their 

conduct. JA135-37. Further, the FEC has, in public documents filed in this Court, 

erroneously stated that “John Doe 2 was the undisputed source of the contribution 

at issue” here, even though the Commission never addressed the question of 

whether Trust was a source of the contribution, much less made such a finding of 

fact to that effect. Mot. to Expedite 12. It is not a stretch of the imagination to 

believe that if Plaintiffs’ names are ultimately identified, this criticism will chill 

their (and, if the FEC has its way, others’) First Amendment-protected activity.12

12 As the District Court pointed out, JA276, the Supreme Court has held that “asapplied challenges [to forced disclosure of political contributions] would be 

available if a group could show a ‘reasonable probability’ that disclosure of its 

contributors’ names will subject them to threats, harassment, or reprisals from 

either Government officials or private parties.” Citizens United v. FEC, 558 U.S. 

310, 367 (2010) (citation omitted). The District Court found no such harassment to 

be likely in this case. The facts prove otherwise. In any event, as this Court noted 

in AFL-CIO, a “harassment” finding is necessary only if the compelled disclosure 

survives strict scrutiny by being shown to be the least restrictive means of 

advancing a compelling government interest. AFL-CIO, 333 F.3d at 176. As 

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 65 of 84
51 

Plaintiffs have a clear First Amendment interest in avoiding disclosure of 

their identities. The District Court’s decision to the contrary ignored this Court’s 

holding in AFL-CIO that even a “marginal interest in preventing the chilling of 

political participation” is sufficient to trigger First Amendment protections. 333 

F.3d at 178. After it determined that AFL-CIO was inapposite, the District Court 

purported to analyze whether disclosure would have a chilling effect, but its 

narrow conception of the First Amendment rights at stake was also erroneous. 

2. Plaintiffs Do Not Assert the Right to Make an Anonymous 

Contribution. 

Failing to recognize the First Amendment interests threatened by the FEC’s 

compelled disclosure of political activities and affiliations, the District Court 

erroneously concluded that “the only right that is implicated by the agency’s 

actions in this case is the right to contribute anonymously.” JA275. Neither 

Plaintiffs nor the FEC took this position in their briefing below, because the 

question of when a contributor may remain anonymous or must disclose their 

identity is not implicated in this case. The District Court’s First Amendment 

analysis was therefore erroneous. 

discussed below, the disclosure advances no compelling government interest, 

rendering a finding of “harassment” unnecessary. 

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 66 of 84
52 

Any implication from the District Court’s decision that Plaintiffs violated 

FECA by failing to report their identities to the FEC in connection with the 

conduct alleged by OGC is unsubstantiated and beyond the scope of this case. In 

MUR 6920, the FEC entered into a conciliation agreement with the respondents 

based on a violation of 52 U.S.C. § 30122, which prohibits making a contribution 

in the name of another. Neither Congress in statute nor the Commission in 

regulation have defined terms for determining the “true source” of a contribution 

subject to FECA. Nor have the circuit courts that have faced the question; rather, 

those courts have simply opined that the purpose of this statute is to ensure that the 

“true source” of a contribution is accurately reported to the FEC. See United States 

v. O’Donnell, 608 F.3d 546, 553-54 (9th Cir. 2010); United States v. Boender, 649 

F.3d 650, 660-61 (7th Cir. 2011). The Commission has not reached a definitive 

conclusion or made a finding regarding the true source of the contribution in MUR 

6920, so the ultimate person required to report the contribution remains unsettled 

as a matter of both law and fact. Moreover, only the FEC, and not the District 

Court, can determine, in the first instance, whether FECA has been violated. See 

FEC v. Nat’l Rifle Ass’n, 553 F. Supp. 1331, 1333 (D.D.C. 1983) (holding that, 

under the FECA, the FEC is “the ‘exclusive’ administrator and enforcer”).13

13 Indeed, it is not clear that a violation occurred. In the nearly eight years since 

Citizens United, the FEC has failed to enact regulations governing contributions by 

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 67 of 84
53 

In this case, there has been no finding by the FEC or admission by Plaintiffs 

that either the Trust or Trustee were the true source of the contribution to Now or 

Never PAC, and thus the analysis with respect to the proper disclosure of that 

contribution is not at issue. Indeed, that question is irrelevant, and the Court has no 

jurisdiction to decide it. The relevant First Amendment analysis is with respect to 

Plaintiffs as third parties identified in an FEC investigative file. Plaintiffs stand in 

the same position as the persons whose names the FEC sought to disclose from its 

investigative file in the AFL-CIO case. That is the relevant framework for the First 

Amendment analysis, not the analysis that governs contribution cases. Therefore, 

the District Court erred by analyzing the issue presented in this case as if the 

interests that govern compelled disclosure of a contribution were at issue or 

controlling. 

C. The FEC’s Asserted Interests in Deterrence and Accountability in 

No Way Justify Disclosure over Plaintiffs’ First Amendment 

Rights. 

In a document recently filed in this Court, the FEC asserts that the two 

interests it believes would be advanced by release of Plaintiffs’ identities are (1) 

deterrence and (2) accountability. Mot. to Expedite 11. Releasing Plaintiffs’ 

corporations or other entities to SuperPACs. As such, the analysis of when a 

person such as a corporation or other entity is the “true source” of a contribution is 

unsettled. 

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 68 of 84
54 

identities, the FEC suggests, would advance both these interests by “allow[ing] the 

public to understand the Commission’s applications of FECA and FEC regulations 

. . . .” Id. These are the same governmental interests recognized by this Court in 

AFL-CIO. 333 F.3d at 174, 179 (identifying “deterring future violations and 

promoting Commission accountability” as valid governmental interests in 

disclosure). Neither of these goals is conceivably advanced by release of Plaintiffs’ 

identities. 

Regarding deterrence, Plaintiffs were never respondents to MUR 6920, and 

the FEC expressly declined to investigate them. This Court has expressly 

questioned “how releasing investigatory files will deter future violations in cases 

where . . . the respondents have been cleared of wrongdoing.” Id. at 178. The same 

question is equally true where, as here, the subject of the disclosure has never had 

the opportunity even to answer such charges, and yet is now being publicly 

accused of illegal conduct by an FEC Commissioner. The FEC simply has failed to 

identify any violation that would be deterred by disclosing Plaintiffs’ identities. 

Indeed, where, as here, the alleged conduct was not found to violate the law, any 

kind of government effort at “deterrence” amounts to unconstitutional chilling of 

protected activity. See, e.g., Kenny v. Wilson, 885 F.3d 280, 289 n.3 (4th Cir. 2018) 

(noting that “[g]overnment action will be sufficiently chilling when it is likely to 

deter a person of ordinary firmness from the exercise of First Amendment rights” 

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 69 of 84
55 

(brackets in original, citation and internal quotations omitted)). Put another way, 

the FEC has no legitimate interest in deterring political activity that it did not find 

provided a “reason to believe” that FECA had been violated. 

Similarly, the FEC’s interest in “accountability” is in no way advanced by 

identifying Plaintiffs by name. As extensively set forth above, no public interest in 

the FEC’s conduct is served by disclosure. The Commission’s decisionmaking and 

reasoning in MUR 6920 can clearly be explained by identifying Plaintiffs as the 

“Trustee” and “Trust,” respectively, or by their current pseudonyms. No more 

information is necessary as to non-respondents the FEC has declined even to 

investigate. The FEC has already disclosed, through the normal agency process of 

releasing the conciliation agreement, the identities of those it has found violated 

the law and the basis for its decision with respect to them. The only evident 

purpose of identifying Plaintiffs by name is as part of an effort to publicly and 

unjustifiably shame them by associating them with conduct by others that the FEC 

has determined violated FECA–an effort that advances no permissible (much less 

compelling) governmental interest and is not justified by the facts and 

circumstances of this case. 

CONCLUSION 

For the reasons stated above, Plaintiffs respectfully assert that this Court 

should reverse the judgment of the District Court. 

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 70 of 84
56 

Respectfully Submitted, 

/s/ William W. Taylor, III 

William W. Taylor, III 

Carlos T. Angulo 

Dermot Lynch 

ZUCKERMAN SPAEDER LLP 

1800 M Street, NW, Suite 1000 

Washington, DC 20036 

202-778-1800 

202-822-8106 

wtaylor@zuckerman.com 

cangulo@zuckerman.com 

dlynch@zuckerman.com 

Counsel for Plaintiff-Appellant John Doe 1

/s/ Michael Dry 

Michael Dry 

John P. Elwood 

Kathleen Cooperstein 

VINSON & ELKINS 

2200 Pennsylvania Avenue, NW 

Suite 500 West 

Washington, D.C., 20037 

202-639-6500 

202-879-8984 (fax) 

mdry@velaw.com 

jelwood@velaw.com 

kcooperstein@velaw.com 

Counsel for Plaintiff-Appellant John Doe 2

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 71 of 84
CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF 

APPELLATE PROCEDURE 32(a) 

This brief complies with the type-volume limitation of Federal Rule of 

Appellate Procedure 32(a)(7)(B) because this brief contains 12,918 words, 

excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 

32(a)(7)(B)(iii). 

This brief complies with the typeface requirements of Federal Rule of 

Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of 

Appellate Procedure 32(a)(6) because this brief has been prepared in a 

proportionally spaced typeface using Microsoft Word in 14-point Times New 

Roman font. 

/s/ William W. Taylor, III 

Counsel for John Doe 1 

/s/ Michael Dry 

Counsel for John Doe 2 

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 72 of 84
CERTIFICATE OF SERVICE 

Pursuant to D.C. Circuit Local Rule 25(c), I hereby certify that on this 14th 

day of May, 2018, I electronically filed the foregoing Brief of Plaintiffs-Appellants 

with the Court by using the CM/ECF system. All parties to the case have been 

served through the CM/ECF system. 

s/ William W. Taylor, III 

Counsel for John Doe 1 

/s/ Michael Dry 

Counsel for John Doe 2 

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 73 of 84
ADDENDUM OF 

STATUTES AND REGULATIONS 

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 74 of 84
TABLE OF CONTENTS 

5 U.S.C. § 552(b)(7)(C) 

52 U.S.C. § 30109(a)(1) 

52 U.S.C. § 30109(a)(2) 

52 U.S.C. § 30109(a)(4)(A)(i) 

52 U.S.C. § 30109(a)(4)(B)(i), (ii) 

52 U.S.C. § 30109(a)(12)(A) 

11 C.F.R. § 4.5(a)(7)(iii) 

11 C.F.R. § 111.6 

11 C.F.R. § 111.9 

11 C.F.R. § 111.20 

81 Fed. Reg. 50,702 (Aug. 2, 2016) 

Page 

A-1 

A-2 

A-2 

A-3 

A-3 

A-3 

A-4 

A-5 

A-5 

A-6 

A-7 

TABLE OF CONTENTS 

Page 

5 U.S.C. § 552(b)(7)(C) A-1 

52 U.S.C. § 30109(a)(1) A-2 

52 U.S.C. § 30109(a)(2) A-2 

52 U.S.C. § 30109(a)(4)(A)(i) A-3 

52 U.S.C. § 30109(a)(4)(B)(i), (ii) A-3 

52 U.S.C. § 30109(a)(12)(A) A-3 

11 C.F.R. § 4.5(a)(7)(iii) A-4 

11 C.F.R. § 111.6 A-5 

11 C.F.R. § 111.9 A-5 

11 C.F.R. § 111.20 A-6 

81 Fed. Reg. 50,702 (Aug. 2, 2016) A-7 

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 75 of 84
5 U.S.C. § 552(b)(7)(C) 

(b) This section does not apply to matters that are— 

(7) records or information compiled for law enforcement purposes, 

but only to the extent that the production of such law enforcement 

records or information (A) could reasonably be expected to interfere 

with enforcement proceedings, (B) would deprive a person of a right 

to a fair trial or an impartial adjudication, (C) could reasonably be 

expected to constitute an unwarranted invasion of personal privacy, 

(D) could reasonably be expected to disclose the identity of a 

confidential source, including a State, local, or foreign agency or 

authority or any private institution which furnished information on a 

confidential basis, and, in the case of a record or information 

compiled by criminal law enforcement authority in the course of a 

criminal investigation or by an agency conducting a lawful national 

security intelligence investigation, information furnished by a 

confidential source, (E) would disclose techniques and procedures for 

law enforcement 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, or (F) could reasonably be expected to endanger the life or 

physical safety of any individual; 

Any reasonably segregable portion of a record shall be provided to any person 

requesting such record after deletion of the portions which are exempt under this 

subsection. The amount of information deleted, and the exemption under which the 

deletion is made, shall be indicated on the released portion of the record, unless 

including that indication would harm an interest protected by the exemption in this 

subsection under which the deletion is made. If technically feasible, the amount of 

the information deleted, and the exemption under which the deletion is made, shall 

be indicated at the place in the record where such deletion is made. 

A-1 A-1 

5 U.S.C. § 552(b)(7)(C) 

(b) This section does not apply to matters that are— 

. . . 

(7) records or information compiled for law enforcement purposes, 

but only to the extent that the production of such law enforcement 

records or information (A) could reasonably be expected to interfere 

with enforcement proceedings, (B) would deprive a person of a right 

to a fair trial or an impartial adjudication, (C) could reasonably be 

expected to constitute an unwarranted invasion of personal privacy, 

(D) could reasonably be expected to disclose the identity of a 

confidential source, including a State, local, or foreign agency or 

authority or any private institution which furnished information on a 

confidential basis, and, in the case of a record or information 

compiled by criminal law enforcement authority in the course of a 

criminal investigation or by an agency conducting a lawful national 

security intelligence investigation, information furnished by a 

confidential source, (E) would disclose techniques and procedures for 

law enforcement 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, or (F) could reasonably be expected to endanger the life or 

physical safety of any individual; 

. . . 

Any reasonably segregable portion of a record shall be provided to any person 

requesting such record after deletion of the portions which are exempt under this 

subsection. The amount of information deleted, and the exemption under which the 

deletion is made, shall be indicated on the released portion of the record, unless 

including that indication would harm an interest protected by the exemption in this 

subsection under which the deletion is made. If technically feasible, the amount of 

the information deleted, and the exemption under which the deletion is made, shall 

be indicated at the place in the record where such deletion is made. 

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 76 of 84
52 U.S.C. § 30109 

(a) Administrative and judicial practice and procedure 

(1) Any person who believes a violation of this Act or of chapter 95 or 

chapter 96 of Title 26 has occurred, may file a complaint with the 

Commission. Such complaint shall be in writing, signed and sworn to 

by the person filing such complaint, shall be notarized, and shall be 

made under penalty of perjury and subject to the provisions of section 

1001 of Title 18. Within 5 days after receipt of a complaint, the 

Commission shall notify, in writing, any person alleged in the 

complaint to have committed such a violation. Before the Commission 

conducts any vote on the complaint, other than a vote to dismiss, any 

person so notified shall have the opportunity to demonstrate, in 

writing, to the Commission within 15 days after notification that no 

action should be taken against such person on the basis of the 

complaint. The Commission may not conduct any investigation or 

take any other action under this section solely on the basis of a 

complaint of a person whose identity is not disclosed to the 

Commission. 

(2) If the Commission, upon receiving a complaint under paragraph 

(1) or on the basis of information ascertained in the normal course of 

carrying out its supervisory responsibilities, determines, by an 

affirmative vote of 4 of its members, that it has reason to believe that 

a person has committed, or is about to commit, a violation of this Act 

or chapter 95 or chapter 96 of Title 26, the Commission shall, through 

its chairman or vice chairman, notify the person of the alleged 

violation. Such notification shall set forth the factual basis for such 

alleged violation. The Commission shall make an investigation of 

such alleged violation, which may include a field investigation or 

audit, in accordance with the provisions of this section. 

(3) The general counsel of the Commission shall notify the respondent 

of any recommendation to the Commission by the general counsel to 

proceed to a vote on probable cause pursuant to paragraph (4)(A)(i). 

With such notification, the general counsel shall include a brief stating 

the position of the general counsel on the legal and factual issues of 

the case. Within 15 days of receipt of such brief, respondent may 

submit a brief stating the position of such respondent on the legal and 

A-2 A-2 

52 U.S.C. § 30109 

(a) Administrative and judicial practice and procedure 

(1) Any person who believes a violation of this Act or of chapter 95 or 

chapter 96 of Title 26 has occurred, may file a complaint with the 

Commission. Such complaint shall be in writing, signed and sworn to 

by the person filing such complaint, shall be notarized, and shall be 

made under penalty of perjury and subject to the provisions of section 

1001 of Title 18. Within 5 days after receipt of a complaint, the 

Commission shall notify, in writing, any person alleged in the 

complaint to have committed such a violation. Before the Commission 

conducts any vote on the complaint, other than a vote to dismiss, any 

person so notified shall have the opportunity to demonstrate, in 

writing, to the Commission within 15 days after notification that no 

action should be taken against such person on the basis of the 

complaint. The Commission may not conduct any investigation or 

take any other action under this section solely on the basis of a 

complaint of a person whose identity is not disclosed to the 

Commission. 

(2) If the Commission, upon receiving a complaint under paragraph 

(1) or on the basis of information ascertained in the normal course of 

carrying out its supervisory responsibilities, determines, by an 

affirmative vote of 4 of its members, that it has reason to believe that 

a person has committed, or is about to commit, a violation of this Act 

or chapter 95 or chapter 96 of Title 26, the Commission shall, through 

its chairman or vice chairman, notify the person of the alleged 

violation. Such notification shall set forth the factual basis for such 

alleged violation. The Commission shall make an investigation of 

such alleged violation, which may include a field investigation or 

audit, in accordance with the provisions of this section. 

(3) The general counsel of the Commission shall notify the respondent 

of any recommendation to the Commission by the general counsel to 

proceed to a vote on probable cause pursuant to paragraph (4)(A)(i). 

With such notification, the general counsel shall include a brief stating 

the position of the general counsel on the legal and factual issues of 

the case. Within 15 days of receipt of such brief, respondent may 

submit a brief stating the position of such respondent on the legal and 

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 77 of 84
factual issues of the case, and replying to the brief of general counsel. 

Such briefs shall be filed with the Secretary of the Commission and 

shall be considered by the Commission before proceeding under 

paragraph (4). 

(4)(A)(i) Except as provided in clauses1 (ii) and subparagraph (C), if 

the Commission determines, by an affirmative vote of 4 of its 

members, that there is probable cause to believe that any person has 

committed, or is about to commit, a violation of this Act or of chapter 

95 or chapter 96 of Title 26, the Commission shall attempt, for a 

period of at least 30 days, to correct or prevent such violation by 

informal methods of conference, conciliation, and persuasion, and to 

enter into a conciliation agreement with any person involved. Such 

attempt by the Commission to correct or prevent such violation may 

continue for a period of not more than 90 days. The Commission may 

not enter into a conciliation agreement under this clause except 

pursuant to an affirmative vote of 4 of its members. A conciliation 

agreement, unless violated, is a complete bar to any further action by 

the Commission, including the bringing of a civil proceeding under 

paragraph (6)(A). 

(B)(i) No action by the Commission or any person, and no 

information derived, in connection with any conciliation attempt by 

the Commission under subparagraph (A) may be made public by the 

Commission without the written consent of the respondent and the 

Commission. 

(ii) If a conciliation agreement is agreed upon by the Commission and 

the respondent, the Commission shall make public any conciliation 

agreement signed by both the Commission and the respondent. If the 

Commission makes a determination that a person has not violated this 

Act or chapter 95 or chapter 96 of Title 26, the Commission shall 

make public such determination. 

(12)(A) Any notification or investigation made under this section shall not be made 

public by the Commission or by any person without the written consent of the 

A-3 A-3 

factual issues of the case, and replying to the brief of general counsel. 

Such briefs shall be filed with the Secretary of the Commission and 

shall be considered by the Commission before proceeding under 

paragraph (4). 

(4)(A)(i) Except as provided in clauses1 (ii) and subparagraph (C), if 

the Commission determines, by an affirmative vote of 4 of its 

members, that there is probable cause to believe that any person has 

committed, or is about to commit, a violation of this Act or of chapter 

95 or chapter 96 of Title 26, the Commission shall attempt, for a 

period of at least 30 days, to correct or prevent such violation by 

informal methods of conference, conciliation, and persuasion, and to 

enter into a conciliation agreement with any person involved. Such 

attempt by the Commission to correct or prevent such violation may 

continue for a period of not more than 90 days. The Commission may 

not enter into a conciliation agreement under this clause except 

pursuant to an affirmative vote of 4 of its members. A conciliation 

agreement, unless violated, is a complete bar to any further action by 

the Commission, including the bringing of a civil proceeding under 

paragraph (6)(A). 

. . . 

(B)(i) No action by the Commission or any person, and no 

information derived, in connection with any conciliation attempt by 

the Commission under subparagraph (A) may be made public by the 

Commission without the written consent of the respondent and the 

Commission. 

(ii) If a conciliation agreement is agreed upon by the Commission and 

the respondent, the Commission shall make public any conciliation 

agreement signed by both the Commission and the respondent. If the 

Commission makes a determination that a person has not violated this 

Act or chapter 95 or chapter 96 of Title 26, the Commission shall 

make public such determination. 

. . . 

(12)(A) Any notification or investigation made under this section shall not be made 

public by the Commission or by any person without the written consent of the 

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 78 of 84
person receiving such notification or the person with respect to whom such 

investigation is made. 

11 C.F.R. § 4.5 

Categories of Exemptions 

(a) No requests under 5 U.S.C. 552 shall be denied release unless the record 

contains, or its disclosure would reveal, matters that are: 

(7) Records or information compiled for law enforcement purposes, but only to 

the extent that the production of such law enforcement records or information: 

(i) Could reasonably be expected to interfere with enforcement proceedings; 

(ii) Would deprive a person of a right to a fair trial or an impartial 

adjudication; 

(iii) Could reasonably be expected to constitute an unwarranted invasion of 

personal privacy; 

(iv) Could reasonably be expected to disclose the identity of a confidential 

source, including a State, local, or foreign agency or authority or any private 

institution which furnished information on a confidential basis, and, in the 

case of a record or information compiled by a criminal law enforcement 

authority in the course of a criminal investigation, or by an agency 

conducting a lawful national security intelligence investigation, information 

furnished by a confidential source; 

(v) Would disclose techniques and procedures for law enforcement 

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; or 

(vi) Could reasonably be expected to endanger the life or physical safety of 

any individual. 

A-4 A-4 

person receiving such notification or the person with respect to whom such 

investigation is made. 

11 C.F.R. § 4.5 

Categories of Exemptions 

(a) No requests under 5 U.S.C. 552 shall be denied release unless the record 

contains, or its disclosure would reveal, matters that are: 

. . . 

(7) Records or information compiled for law enforcement purposes, but only to 

the extent that the production of such law enforcement records or information: 

(i) Could reasonably be expected to interfere with enforcement proceedings; 

(ii) Would deprive a person of a right to a fair trial or an impartial 

adjudication; 

(iii) Could reasonably be expected to constitute an unwarranted invasion of 

personal privacy; 

(iv) Could reasonably be expected to disclose the identity of a confidential 

source, including a State, local, or foreign agency or authority or any private 

institution which furnished information on a confidential basis, and, in the 

case of a record or information compiled by a criminal law enforcement 

authority in the course of a criminal investigation, or by an agency 

conducting a lawful national security intelligence investigation, information 

furnished by a confidential source; 

(v) Would disclose techniques and procedures for law enforcement 

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; or 

(vi) Could reasonably be expected to endanger the life or physical safety of 

any individual. 

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 79 of 84
11 C.F.R. § 111.6 

Opportunity to demonstrate that no action should be taken on complaintgenerated matters (52 U.S.C. 30109(a)(1)). 

(a) A respondent shall be afforded an opportunity to demonstrate that no action 

should be taken on the basis of a complaint by submitting, within fifteen (15) days 

from receipt of a copy of the complaint, a letter or memorandum setting forth 

reasons why the Commission should take no action. 

(b) The Commission shall not take any action, or make any finding, against a 

respondent other than action dismissing the complaint, unless it has considered 

such response or unless no such response has been served upon the Commission 

within the fifteen (15) day period specified in 11 CFR 111.6(a). 

11 C.F.R. § 111.9 

The reason to believe finding; notification (52 U.S.C. 30109(a)(2)). 

(a) If the Commission, either after reviewing a complaint-generated 

recommendation as described in 11 CFR 111.7 and any response of a respondent 

submitted pursuant to 11 CFR 111.6, or after reviewing an internally-generated 

recommendation as described in 11 CFR 111.8, determines by an affirmative vote 

of four (4) of its members that it has reason to believe that a respondent has 

violated a statute or regulation over which the Commission has jurisdiction, its 

Chairman or Vice Chairman shall notify such respondent of the Commission's 

finding by letter, setting forth the sections of the statute or regulations alleged to 

have been violated and the alleged factual basis supporting the finding. 

(b) If the Commission finds no reason to believe, or otherwise terminates its 

proceedings, the General Counsel shall so advise both complainant and respondent 

by letter. 

A-5 A-5 

11 C.F.R. § 111.6 

Opportunity to demonstrate that no action should be taken on complaintgenerated matters (52 U.S.C. 30109(a)(1)). 

(a) A respondent shall be afforded an opportunity to demonstrate that no action 

should be taken on the basis of a complaint by submitting, within fifteen (15) days 

from receipt of a copy of the complaint, a letter or memorandum setting forth 

reasons why the Commission should take no action. 

(b) The Commission shall not take any action, or make any finding, against a 

respondent other than action dismissing the complaint, unless it has considered 

such response or unless no such response has been served upon the Commission 

within the fifteen (15) day period specified in 11 CFR 111.6(a). 

11 C.F.R. § 111.9 

The reason to believe finding; notification (52 U.S.C. 30109(a)(2)). 

(a) If the Commission, either after reviewing a complaint-generated 

recommendation as described in 11 CFR 111.7 and any response of a respondent 

submitted pursuant to 11 CFR 111.6, or after reviewing an internally-generated 

recommendation as described in 11 CFR 111.8, determines by an affirmative vote 

of four (4) of its members that it has reason to believe that a respondent has 

violated a statute or regulation over which the Commission has jurisdiction, its 

Chairman or Vice Chairman shall notify such respondent of the Commission’s 

finding by letter, setting forth the sections of the statute or regulations alleged to 

have been violated and the alleged factual basis supporting the finding. 

(b) If the Commission finds no reason to believe, or otherwise terminates its 

proceedings, the General Counsel shall so advise both complainant and respondent 

by letter. 

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 80 of 84
11 C.F.R. § 111.20 

§ 111.20 Public disclosure of Commission action (52 U.S.C. 30109(a)(4)). 

(a) If the Commission makes a finding of no reason to believe or no probable cause 

to believe or otherwise terminates its proceedings, it shall make public such action 

and the basis therefor no later than thirty (30) days from the date on which the 

required notifications are sent to complainant and respondent. 

(b) If a conciliation agreement is finalized, the Commission shall make public such 

conciliation agreement forthwith. 

(c) For any compliance matter in which a civil action is commenced, the 

Commission will make public the non-exempt 52 U.S.C. 30109 investigatory 

materials in the enforcement and litigation files no later than thirty (30) days from 

the date on which the Commission sends the complainant and the respondent(s) the 

required notification of the final disposition of the civil action. The final 

disposition may consist of a judicial decision which is not reviewed by a higher 

court. 

A-6 A-6 

11 C.F.R. § 111.20 

§ 111.20 Public disclosure of Commission action (52 U.S.C. 30109(a)(4)). 

(a) If the Commission makes a finding of no reason to believe or no probable cause 

to believe or otherwise terminates its proceedings, it shall make public such action 

and the basis therefor no later than thirty (30) days from the date on which the 

required notifications are sent to complainant and respondent. 

(b) If a conciliation agreement is finalized, the Commission shall make public such 

conciliation agreement forthwith. 

(c) For any compliance matter in which a civil action is commenced, the 

Commission will make public the non-exempt 52 U.S.C. 30109 investigatory 

materials in the enforcement and litigation files no later than thirty (30) days from 

the date on which the Commission sends the complainant and the respondent(s) the 

required notification of the final disposition of the civil action. The final 

disposition may consist of a judicial decision which is not reviewed by a higher 

court. 

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 81 of 84
50702 Federal Register / Vol. 81, No. 148 / Tuesday, August 2, 2016 / Notices 

PRA that does not display a valid OMB 

control number. 

DATES: Written comments should be 

submitted on or before September 1, 

2016. If you anticipate that you will be 

submitting comments, but find it 

difficult to do so within the period of 

time allowed by this notice, you should 

advise the contacts below as soon as 

possible. 

ADDRESSES: Direct all PRA comments to 

Nicholas A. Fraser, OMB, via email 

Nicholas A._Fraser@omb.eop.gov; and 

to Cathy Williams, FCC, via email PRA@ 

fcc.gov and to Cathy.Williams@fcc.gov. 

Include in the comments the OMB 

control number as shown in the 

SUPPLEMENTARY INFORMATION section 

below. 

FOR FURTHER INFORMATION CONTACT: For 

additional information or copies of the 

information collection, contact Cathy 

Williams at (202) 418-2918. To view a 

copy of this information collection 

request (ICR) submitted to OMB: (1) Go 

to the Web page http://www.reginfo.gov/ 

public/do/PRAMain, (2) look for the 

section of the Web page called 

"Currently Under Review," (3) click on 

the downward-pointing arrow in the 

"Select Agency" box below the 

"Currently Under Review" heading, (4) 

select "Federal Communications 

Commission" from the list of agencies 

presented in the "Select Agency" box, 

(5) click the "Submit" button to the 

right of the "Select Agency" box, (6) 

when the list of FCC ICRs currently 

under review appears, look for the OMB 

control number of this ICR and then 

click on the ICR Reference Number. A 

copy of the FCC submission to OMB 

will be displayed. 

SUPPLEMENTARY INFORMATION: 

OMB Control No.: 3060-0192. 

Title: Section 87.103, Posting Station 

License. 

Form No.: N/A. 

Type of Review: Extension of a 

currently approved collection. 

Respondents: Business or other forprofit, not-for-profit institutions, and 

state, local and tribal government. 

Number of Respondents and 

Responses: 33,622 respondents, 33,622 

responses. 

Estimated Time per Response: .25 

hours. 

Frequency of Response: 

Recordkeeping requirement. 

Obligation to Respond: Required to 

obtain or retain benefits. The statutory 

authority for this collection is contained 

in 47 U.S.C. 303. 

Total Annual Burden: 8,406 hours. 

Annual Cost Burden: No cost. 

Privacy Act Impact Assessment: No 

impacts. 

Nature and Extent of Confidentiality: 

There is no need for confidentiality with 

this collection of information. 

Needs and Uses: Section 87.103 states 

the following: (a) Stations at fixed 

locations. The license or a photocopy 

must be posted or retained in the 

station's permanent records. (b) Aircraft 

radio stations. The license must be 

either posted in the aircraft or kept with 

the aircraft registration certificate. If a 

single authorization covers a fleet of 

aircraft, a copy of the license must be 

either posted in each aircraft or kept 

with each aircraft registration certificate. 

(c) Aeronautical mobile stations. The 

license must be retained as a permanent 

part of the station records. 

The recordkeeping requirement 

contained in Section 87.103 is necessary 

to demonstrate that all transmitters in 

the Aviation Service are properly 

licensed in accordance with the 

requirements of Section 301 of the 

Communications Act of 1934, as 

amended, 47 U.S.C. 301, No. 2020 of the 

International Radio Regulation, and 

Article 30 of the Convention on 

International Civil Aviation. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary, Office of the Secretary. 

[FR Doc. 2016-18209 Filed 8-1-16; 8:45 am] 

BILLING CODE 6712-01-P 

FEDERAL ELECTION COMMISSION 

[NOTICE 2016-06] 

Disclosure of Certain Documents in 

Enforcement and Other Matters 

AGENCY: Federal Election Commission 

ACTION: Statement of policy. 

SUMMARY: The Commission is adopting 

a policy with respect to placing certain 

documents on the public record in 

enforcement, administrative fines, and 

alternative dispute resolution cases, as 

well as administrative matters. The 

categories of records that will be 

included in the public record are 

described below. 

DATES: Effective on September 1, 2016. 

FOR FURTHER INFORMATION CONTACT: 

Adav Noti, Acting Associate General 

Counsel, 999 E Street NW., Washington, 

DC 20463, 202-694-1650 or 1-800-

424-9530. 

SUPPLEMENTARY INFORMATION: The 

"confidentiality provision" of the 

Federal Election Campaign Act, 52 

U.S.C. 30101 et seq. (FECA), provides 

that: "Any notification or investigation 

under [Section 30109] 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." 52 U.S.C. 30109(a)(12)(A). For 

approximately the first 25 years of its 

existence, the Commission viewed the 

confidentiality requirement as ending 

with the termination of a case. The 

Commission placed on its public record 

the documents that had been considered 

by the Commissioners in their 

determination of a case, minus those 

materials exempt from disclosure under 

the FECA or under the Freedom of 

Information Act, 5 U.S.C. 552 (FOIA). 

See 11 CFR 5.4(a)(4). In AFL-CIO v. 

FEC, 177 F. Supp. 2d 48 (D.D.C. 2001), 

the district court disagreed with the 

Commission's interpretation of the 

confidentiality provision and found that 

the protection of section 30109(a)(12)(A) 

does not lapse at the time the 

Commission terminates an 

investigation. 177 F. Supp. 2d at 56. 

Following that district court decision, 

the Commission placed on the public 

record only those documents that 

reflected the agency's "final 

determination" with respect to 

enforcement matters. Such disclosure is 

required under 52 U.S.C. 

30109(a)(4)(B)(ii) and section (a)(2)(A) of 

the FOIA. In all cases, the final 

determination is evidenced by a 

certification of Commission vote. The 

Commission also continued to disclose 

documents that explained the basis for 

the final determination. Depending 

upon the nature of the case, those 

documents consisted of General 

Counsel's Reports (frequently in 

redacted form); Probable Cause to 

Believe Briefs; conciliation agreements; 

Statements of Reasons issued by one or 

more of the Commissioners; or, a 

combination of the foregoing. The 

district court indicated that the 

Commission was free to release these 

categories of documents. See 177 F. 

Supp. 2d at 54 n..11. In administrative 

fines cases, the Commission began 

placing on the public record only the 

Final Determination Recommendation 

and certification of vote on final 

determination. In alternative dispute 

resolution cases, the public record 

consisted of the certification of vote and 

the negotiated agreement. 

Although it affirmed the judgment of 

the district court in AFL-CIO, the Court 

of Appeals for the District of Columbia 

Circuit differed with the lower court's 

restrictive interpretation of the 

confidentiality provision of 52 U.S.C. 

30109(a)(12)(A). The Court of Appeals 

stated that: "the Commission may well 

be correct that . . . Congress merely 

intended to prevent disclosure of the 

fact that an investigation is pending," 

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A-7

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 82 of 84
Federal Register / Vol. 81, No. 148 / Tuesday, August 2, 2016 / Notices 50703 

and that: "deterring future violations 

and promoting Commission 

accountability may well justify releasing 

more information than the minimum 

disclosures required by section 

[30109](a)." See AFL-CIO v. FEC, 333 

F.3d 168, 174, 179 (D.C. Cir. 2003). 

However, the Court of Appeals warned 

that, in releasing enforcement 

information to the public, the 

Commission must "attempt to avoid 

unnecessarily infringing on First 

Amendment interests where it regularly 

subpoenas materials of a 'delicate nature 

. . . represent[ing] the very heart of the 

organism which the first amendment 

was intended to nurture and protect."' 

Id. at 179 (citation omitted). The 

decision suggested that, with respect to 

materials of this nature, a "balancing" of 

competing interests is required-on one 

hand, consideration of the 

Commission's interest in promoting its 

own accountability and in deterring 

future violations and, on the other, 

consideration of the respondent's 

interest in the privacy of association and 

belief guaranteed by the First 

Amendment. Noting that the 

Commission had failed to tailor its 

disclosure policy to avoid unnecessarily 

burdening the First Amendment rights 

of the political organizations it 

investigates, id. at 178, the Court found 

the agency's disclosure regulation at 11 

CFR 5.4(a)(4) to be impermissible, id. at 

179. In December 2003, the Commission 

issued an interim disclosure policy. See 

Statement of Policy Regarding 

Disclosure of Closed Enforcement or 

Related Files, 68 FR 70423 (Dec. 20, 

2003) ("Interim Disclosure Policy"). 

The Commission is issuing this policy 

statement to identify several categories 

of documents integral to its 

decisionmaking process that will be 

disclosed upon termination of an 

enforcement matter, as well as 

documents integral to its administrative 

functions. This policy replaces the 

Interim Disclosure Policy as the 

Commission's permanent disclosure 

policy. 

The categories of documents that the 

Commission intends to disclose as a 

matter of regular practice either do not 

implicate the 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. In addition, 

the Commission will make certain other 

documents available on a case by case 

basis which will assist the public in 

understanding the record without 

intruding upon the associational 

interests of the respondents. 

Enforcement 

With respect to enforcement matters, 

the Commission will place the following 

categories of documents on the public 

record: 

1. Complaint (including supplements 

and amendments thereto); 

2. Internal agency referral where the 

Commission opens a Matter Under 

Review; 

3. Response (including supplements 

and amendments thereto) to complaint; 

4. General Counsel's Reports 1 

(including supplements 2thereto) that 

recommend dismissal, reason to believe, 

no reason to believe, no action at this 

time, probable cause to believe, no 

probable cause to believe, no further 

action, or acceptance of a conciliation 

agreement; 

5. Notification of reason to believe 

findings; 

6. Factual and Legal Analyses 

identified as the subject of a vote in a 

Commission certification; 

7. Respondent's response to reason to 

believe findings; 

8. Briefs (General Counsel's Brief and 

Respondent's Brief); 

9. Statements of Reasons issued by 

one or more Commissioners; 

10. Conciliation Agreements; 

11. Evidence of payment of civil 

penalty or of disgorgement; 

12. Certifications of Commission 

votes; 

13. Attachments to complaints and 

attachments to responses to complaints; 

14. Memoranda and reports 

(including supplements 2thereto) from 

the Office of the General Counsel 

prepared for the Commission in 

connection with a specific pending 

Matter Under Review circulated through 

the Office of the Secretary for the 

consideration and deliberation of the 

Commission; 

15. Complaint notification letters, and 

correspondence from respondents 

submitted in response to them; 

16. Notifications to respondents that 

were previously identified as 

"Unknown Respondents," and 

correspondence from respondents 

submitted in response to them; 

1This category of documents does not include 

General Counsel's Reports that have been 

withdrawn by the Office of the General Counsel. 

The Commission may, upon the affirmative vote of 

four or more Commissioners, place such documents 

on the public record on a case by case basis. 

2Supplements are documents that contain new or 

additional substantive analysis from the Office of 

the General Counsel prepared for the Commission 

in connection with a specific pending Matter Under 

Review circulated through the Office of the 

Secretary for the consideration and deliberation of 

the Commission. Supplements do not include 

documents that solely transmit replacement pages 

to correct errors in circulated reports or 

memoranda. 

17. Designations of counsel; 

18. Requests for extensions of time; 

19. Responses to requests for 

extensions of time; 

20. Tolling agreements; and 

21. Closeout letters. 

The Commission is placing the 

foregoing categories of documents on 

the public record in all matters it closes 

on or after September 1, 2016, regardless 

of the outcome. By doing so, the 

Commission complies with the 

requirements of 52 U.S.C. 

30109(a)(4)(B)(ii) and 5 U.S.C. 

552(a)(2)(A) Conciliation Agreements 

are placed on the public record 

pursuant to 52 U.S.C. 30109(a)(4)(B)(ii). 

On a case by case basis, the Commission 

may place on the public record other 

documents that edify public 

understanding of a closed matter. 

The Commission will place these 

documents on the public record as soon 

as practicable, and will endeavor to do 

so within 30 days of the date on which 

notifications are sent to complainant 

and respondent. See 11 CFR 111.20(a). 

In the event a Statement of Reasons is 

required, but has not been issued before 

the date proposed for the release of the 

remainder of the documents in a matter, 

those documents will be placed on the 

public record and the Statement of 

Reasons will be added to the file when 

issued. 

The Commission is not placing on the 

public record certain other materials 

from its investigative files, such as 

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. The 

Commission also will not place the 

following categories of documents on 

the public record: 

1. Sua sponte submissions and 

accompanying attachments; 

2. External referrals from other 

agencies and law enforcement sources 

in which the Commission declines to 

open a Matter Under Review; 

3. Documents (other than notification 

letters) related to debt settlement plans 

and proposed administrative 

terminations in which the Commission 

does not approve the debt settlement 

plan or administrative termination. 

Administrative Fines 

With respect to administrative fines 

cases, the Commission will place the 

entire administrative file on the public 

record, which includes the following: 

1. Reason to Believe recommendation; 

2. Respondent's response; 

3. Reviewing Officer's memoranda to 

the Commission; 

A-8 

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A-8

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 83 of 84
50704 Federal Register / Vol. 81, No. 148 / Tuesday, August 2, 2016 / Notices 

4. Final Determination 

recommendation; 

5. Certifications of Commission votes; 

6. Statements of Reasons; 

7. Evidence of payment of fine; and 

8. Referral to Department of the 

Treasury. 

Alternative Dispute Resolution 

With respect to alternative dispute 

resolution (ADR) cases, the Commission 

will place the following categories of 

documents on the public record: 

1. Complaint or internal agency 

referral; 

2. Response to complaint; 

3. ADR Office's informational 

memorandum on assignment to the 

Commission; 

4. Notification to respondent that case 

has been assigned to ADR; 

5. Letter or Commitment Form from 

respondent participating in the ADR 

program; 

6. ADR Office recommendation as to 

settlement or dismissal; 

7. Certifications of Commission votes; 

8. Settlement agreement executed by 

the respondent and Commission; and 

9. Evidence of compliance with terms 

of settlement. 

When disclosing documents in 

administrative fines and alternative 

dispute resolution cases, the 

Commission will release publicly 

available records that are referenced in, 

or attached to, documents specifically 

subject to release under this policy. 

Administrative Functions 

The Commission will also place on 

the public record the following nonexclusive list of documents integral to 

its administrative functions: 

1. Statistics related to number of EPS 

dismissals by fiscal year and current 

quarter; 

2. Statistics related to number of cases 

opened and closed by fiscal year and 

current quarter, average number of days 

to close a matter, and total civil 

penalties assessed; 

3. Case closing processing statistics; 

4. Monthly reports from the 

Department of the Treasury of the 

balance available in the Presidential 

Election Campaign Fund; 

5. Yearly Long Term Budget Estimates 

for the Presidential Election Campaign 

Fund; 

6. Memoranda from the Office of the 

General Counsel prepared for the 

Commission in connection with debt 

settlement plans and proposed 

administrative terminations circulated 

through the Office of the Secretary for 

the consideration and deliberation of 

the Commission in which the 

Commission ultimately approves the 

debt settlement plan or administrative 

termination; 

7. Certifications of Commission votes 

in which the Commission approves a 

debt settlement plan or administrative 

termination; 

8. Service Contract Inventory Reports 

submitted by the Commission to the 

Office of Federal Procurement Policy 

pursuant to section 743 of Division C of 

the 2010 Consolidated Appropriations 

Act; 

9. Annual reports of activities 

performed by the agency that in the 

judgment of the agency head are not 

inherently governmental submitted by 

the Commission to the Office of 

Management and Budget pursuant to the 

Federal Activities Inventory Reform Act 

of 1998; 

10. Reports of official travel paid for 

by non-government sources made to the 

U.S. Office of Government Ethics 

pursuant to 31 U.S.C. 1353; 

11. Annual reports of the receipt and 

disposition of gifts and decorations 

tendered by foreign governments to 

federal employees, spouses, and 

dependents submitted by the 

Commission to the State Department 

pursuant to Public Law 95-105; 

12. Annual reports made by the 

Commission pursuant to Equal 

Employment Opportunity Commission 

Management Directive 715; and 

13. Annual reports on the agency's 

privacy management program submitted 

by the Commission to the Office of 

Management and Budget. 

With this policy, the Commission 

intends to provide guidance to outside 

counsel, the news media, and others 

seeking to understand the Commission's 

disposition of enforcement, 

administrative fines, and alternative 

dispute resolution cases and 

administrative functions. This will 

enhance their ability to assess particular 

matters in light of past decisions. This 

policy does not alter any existing 

regulation or policy requiring or 

permitting the Commission to redact 

documents, including those covered by 

this policy, to comply with the FECA, 

the principles set forth by the court of 

appeals in AFL-CIO, and the FOIA. In 

appropriate cases implicating the law 

enforcement privilege, an entire 

document may be withheld. 

Dated: July 25, 2016. 

On behalf of the Commission. 

Matthew S. Petersen, 

Chairman, Federal Election Commission. 

[FR Doc. 2016-18190 Filed 8-1-16; 8:45 am] 

BILLING CODE 6715-01-P 

FEDERAL RESERVE SYSTEM 

Change in Bank Control Notices; 

Acquisitions of Shares of a Bank or 

Bank Holding Company 

The notificants listed below have 

applied under the Change in Bank 

Control Act (12 U.S.C. 1817(j)) and 

§ 225.41 of the Board's Regulation Y (12 

CFR 225.41) to acquire shares of a bank 

or bank holding company. The factors 

that are considered in acting on the 

notices are set forth in paragraph 7 of 

the Act (12 U.S.C. 1817(j)(7)). 

The notices are available for 

immediate inspection at the Federal 

Reserve Bank indicated. The notices 

also will be available for inspection at 

the offices of the Board of Governors. 

Interested persons may express their 

views in writing to the Reserve Bank 

indicated for that notice or to the offices 

of the Board of Governors. Comments 

must be received not later than August 

17, 2016. 

A. Federal Reserve Bank of Kansas 

City (Dennis Denney, Assistant Vice 

President) 1 Memorial Drive, Kansas 

City, Missouri 64198-0001: 

1. Richard Michael Howard and 

Patricia A. Turner Howard, both of Gulf 

Shores, Alabama; as members of the 

Vision Bancshares, Inc. Shareholders 

Agreement to acquire shares of Vision 

Bancshares, Inc., parent of Vision Bank, 

N.A., both in Ada, Oklahoma. 

Board of Governors of the Federal Reserve 

System, July 28, 2016. 

Michele T. Fennell, 

Assistant Secretary of the Board. 

[FR Doc. 2016-18243 Filed 8-1-16; 8:45 am] 

BILLING CODE 6210-01-P 

FEDERAL RESERVE SYSTEM 

Formations of, Acquisitions by, and 

Mergers of Bank Holding Companies 

The companies listed in this notice 

have applied to the Board for approval, 

pursuant to the Bank Holding Company 

Act of 1956 (12 U.S.C. 1841 et seq.) 

(BHC Act), Regulation Y (12 CFR part 

225), and all other applicable statutes 

and regulations to become a bank 

holding company and/or to acquire the 

assets or the ownership of, control of, or 

the power to vote shares of a bank or 

bank holding company and all of the 

banks and nonbanking companies 

owned by the bank holding company, 

including the companies listed below. 

The applications listed below, as well 

as other related filings required by the 

Board, are available for immediate 

inspection at the Federal Reserve Bank 

indicated. The applications will also be 

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A-9

USCA Case #18-5099 Document #1730827 Filed: 05/14/2018 Page 84 of 84