AGENDA DOCUMENT NO. 09-72-A
 

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FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463 ZOOq NOV -1-1 P 4: 5 I 

AGENDA ITEM' 

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November 4, 2009 SUBMITTED LATE
 

MEMORANDUM 

TO:	 The Commission 

FROM:	 Vice Chainnan Matthew S. Petersen g~ Commissioner Caroline C. Hunter l (., 

Commissioner Donald F. McGahn

Subject:	 Proposed Agency Practice: Placing First General Counsel's Reports on the 

Public Record 

Attached is a proposed agency practice. We have asked to place this draft on the 

agenda for November 5,2009. 

Attachment 
FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463 

Date: November 4, 2009 

In re: Placing First General Counsel's Reports on the Public Record 

The Federal Election Commission ("Commission") will place all First General Counsel's 

Reports ("FGCR"s) on the public record, subject to appropriate redaction or withholding as 

described below. 

For approximately the first 25 years of its existence, the Commission placed on the public 

record, at the close of an enforcement matter, all materials considered by the Commissioners in 

their disposition of a case, except for those materials prohibited from disclosure by the Federal 

Election Campaign Act ("FECA" or "the Act") or, in most instances, those exempt from 

disclosure under the Freedom of Infonnation Act ("FOIA"). 

In 2001, following the decision of the District Court in AFL-CIO v. FEC, 177 F.Supp.2d 

48 (D. D.C. 2001) ("AFL-CIO"), the Commission placed on the public record only those 

documents that reflected the very final action in an enforcement matter and the reasons for that 

action. After the Court of Appeals decision in the AFL-CIO case, the Commission adopted an 

interim policy, in which it said it would place on the public record, among other things, "General 

Counsel's Reports that recommend dismissal, reason to believe, no reason to believe, no action 

at this time, probable cause to believe, no probable cause to believe, no further action, or 

acceptance of a conciliation agreement[.]" See Statement ofPolicy Regarding Disclosure of 

Closed Enforcement or Related Files, 68 Fed. Reg. 70423 (Dec. 20, 2003) ("Interim Disclosure 

Policy" or "lOP"). I 

In 2006, the Commission reconsidered its practice of placing First General Counsel's 

Reports on the public record after a case arose in which the Commission adopted a 

recommendation offered by OGC in a General Counsel's Report, but rejected one of the several 

underlying rationales for the recommendation. Thereafter, OGC began recommending the 

approval ofF&LAs in all cases, not just those with RTB recommendations, and from January 

2007 forward, all First General Counsel's Reports were withheld from the public record in new 

enforcement matters. 

Because the current practice does not promote transparency, the Commission is adopting 

the practice of placing all First General Counsel's Reports on the public record, both instances in 

I The Commission is currently working on a rulemaking to promulgate a permanent public disclosure policy. 
First General Counsel's Reports and the Public Record 

Page 2 

which the recommendations in the First General Counsel's Report are adopted and instances in 

which they are not, both prospectively and retrospectively. 2 

New Practice of Placing All First General Counsel's Report on the Public Record 

1.	 The Commission will place all First General Counsel's Reports on the public record in 

closed enforcement matters, prospectively and retroactively, but reserves the right to 

redact portions of such documents consistent with the Act as elucidated by AFL-CIO, and 

subject to the Commission's authority to withhold material under an exemption set forth 

in the FOrA 

2.	 Until such time as all previously withheld First General Counsel's Reports have been 

placed on the public record, the Commission will approve all FOrA requests seeking a 

General Counsel's Report or accompanying F&LA that has not yet been restored to the 

public record, but reserves the right to redact portions of such documents consistent with 

the Act as elucidated by AFL-CIO, and subject to the Commission's authority to withhold 

material under an exemption set forth in the FOrA 

2 First General Counsel's Reports have been withheld from the public record since January 2007, under a new 

practice that was adopted at that time. First General Counsel's Reports were also withheld from the public record 

between 2001 and 2003, during which time only dispositive document were placed on the public record. Until such 

time as all these records are restored to the public record, any ForA request seeking any of these materials will be 

granted. and the materials will be provided to the requestor and placed on the public record.