AGENDA DOCUMENT NO. 11-1.3-t 

il01J 

;,1 

FEDERAL ELECTION COMMISSION 

Washington, " '" S P l(: 5S DC 20463 

AGENDA ITEM 

MEMORANDUM 

TO: The Commission ,~

For Meeting of S-J.k- II 

FROM: Steven T. Walther ~. SUBMITTED LATE 

Commissioner ~r~::.

DATE: May 25,2011 

SUBJECT: Agency Procedure for Disclosure of Documents and 

Information in the Enforcement Process 

I request that the attached revised draft Agency Procedure for Disclosure of Documents 

and Information in the Enforcement Process be placed on the agenda for May 26,2011. 

Attachment 
------ ------

FEDERAL ELECTION COMMISSION 

11 CFR Part 111 

[NOTICE 20ll-XX] 

Agency Procedure for Disclosure of Documents 

and Information in the Enforcement Process 

AGENCY: Federal Election Commission 

ACTION: Notice of Agency Procedure 

SUMMARY: The Federal Election Commission (Commission) is establishing an 

agency procedure to formally define the scope of documents that 

will be provided to respondents by the agency, and to formalize the 

agency's process of disclosing such documents, during the 

Commission's investigation in enforcement matters brought under 

the Federal Election Campaign Act of 1971, as amended (the Act). 

DATES:	 Effective [15 days from the date of publication in the Federal 

Register]. 

FOR FURTHER 

INFORMATION 

CONTACT: , Assistant General Counsel, or

Attorney, 999 E Street, NW, Washington, DC 20463, (202) 694­

1650 or (800) 424-9530. 

SUPPLEMENTARY 

INFORMATION: 

I. Recent Changes to the Commission's Enforcement Procedures. 

The Commission has, in recent years, adopted several changes to its enforcement 

process in an effort to provide complainants, respondents and the public with greater 

transparency with respect to the Commission's process. 
On May 1, 2003, the Commission published a Notice of Public Hearing and 

Request for Public Comment concerning its enforcement procedures. 1 The Commission 

received written comments from the public, many of which urged increased transparency 

in Commission procedures and expanded opportunities to contest allegations. 2 On June 

11, 2003, the Commission held an open hearing on its enforcement procedures during 

which the Commission considered written comments received and oral testimony from 

several witnesses. In response to issues raised in written comments and at the hearing, 

the Commission issued several new agency procedures. 3 

On December 8, 2008, the Commission issued a Notice of Public Hearing and 

Request for Public Comment regarding the compliance and enforcement aspects ofits 

agency procedures. 4 There were numerous written comments filed in response to the 

Notice and on January 14-15,2009, the Commission received testimony at a public 

hearing. 5 

Some commenters proposed alternative procedures with respect to information 

and documents in the possession of the Commission. One commenter recommended 

instituting a program whereby potential respondents in internally generated matters6 

would be given a written summary ofthe matter and an opportunity to respond in writing 

before the Commission makes a reason to believe (RTB) finding and to provide earlier 

notice to respondents about the Office of General Counsel's (OGC) recommendation to 

the Commission.? Other commenters urged the Commission to adopt procedures to 

provide respondents with the opportunity to review and respond to any adverse course of 

action recommended by the Commission's Office of General Counsel before the 

I See Enforcement Procedures, 68 Fed. Reg. 23311 (May 1,2003), available at 

www.fec.gov/agenda/agendas2003/notice2003-09/fr68n084p23311.pdf. 

2 Comments and statements for the record are available at www.fec.gov/agenda/agendas2003/notice2003­

09/comments.shtml. 

3 See Statement ofPolicy Regarding Deposition Transcripts in Nonpublic Investigations, 68 Fed. Reg. 

50688 (Aug. 22, 2003), available at www.fec.gov/agenda/agendas2003/notice2003­

15/fr68nI63p50688.pdf; Statement ofPolicy Regarding Treasurers Subject to Enforcement Proceedings, 

70 Fed. Reg. 3 (Jan. 3,2005), available at www.fec.gov/law/policY/2004/notice2004-20.pdf; Procedural 

Rulesfor Probable Cause Hearings, 72 Fed. Reg. 64919 (Nov. 19,2007), available at 

www.fec.gov/law/cfr/ej compilation/2007/notice 2007-21.pdf. 

4 See Agency Procedures, 73 Fed. Reg. 74495 (Dec. 8,2008), available at 

http://www.fec.gov/law/policy/enforcement/notice_2008-13.pdf. 

5 The comments received by the Commission, as well as the transcript of the hearing are available at 

www.fec.gov/law/policy/enforcement/publichearingO11409.shtml. 

6 Enforcement matters may be internally generated based on information ascertained by the Commission III 

the normal course of carrying out its supervisory responsibilities. See 2 U.S.c. 437g. These non-complaint 

generated matters can arise from internal referrals to the Office of General Counsel from the Commission's 

Reports Analysis Division or Audit Division. 

7 See Comment of Scott E. Thomas dated January 5,2009, available at 

www.fec.gov/law/policy/enforcement/2009/comments/comm15.pdf. 

2 
Commission considers such recommendation. 8 Still others requested even more general 

access by respondents to documents and information held by the Commission.9 

The Commission has since updated and augmented several of its procedures 

including the adoption of: (1) a pilot program providing opportunity to persons 

requesting an advisory opinion to appear before the Commission to answer questions, I0 

(2) a pilot program providing audited committees with an opportunity to request a 

hearing before the Commission prior to the Commission's adoption of a Final Audit 

Report, II and (3) a procedure providing respondents with notice of a non-complaint 

generated referral 12 and an opportunity to respond prior to the Commission's 

consideration of whether it has reason to believe that a violation has occurred. 13 Further, 

in December 2009, the Commission issued a Guidebook for Complainants and 

Respondents on the FEC Enforcement Process, which provides a step-by-step guide to 

assist and educate complainants, respondents and the public concerning the Commission 

enforcement process. 14 

The procedure set forth herein formalizes the Commission's policy on disclosure 

to respondents of relevant information gathered by the Commission in the investigative 

stage of its enforcement proceedings. 

II.	 Disclosure of Exculpatory Information. 

A.	 Criminal Proceedings: the Constitutional Obligation under Brady - the 

Government's Duty to Disclose. 

One issue that must inform the Commission in its consideration of any procedure 

regarding the disclosure of documents and information to respondents in the enforcement 

process is whether, and to what extent, there are relevant requirements or constraints 

imposed by the United States Constitution. The seminal Supreme Court case involving 

the Constitutional parameters required by, and imposed upon, the government, in the 

8 See Comments of Perkins Coie LLP Political Law Group dated January 5, 2009, available at 

www.fec.gov/law/policy/enforcement/2009/comments/comm25.pdf. 

9 See Comments of Election Law and Government Ethics Practice Group of Wiley Rein LLP dated January 

5,2009, available at www.fec.gov/law/policy/enforcement/2009/comments/comm33.pdf; Comments of 

Perkins Coie LLP Political Law Group dated January 5, 2009, available at 

www.fec.gov/law/policylenforcement/2009/comments/comm25.pdf; Comments of Laurence E. Gold dated 

January 5,2009, available at www.fec.gov/law/policy/enforcement/2009/comments/comm20.pdf; 

Comments of Robert K, Kelner dated January 5,2009, available at 

www.fec.gov/law/policy/enforcement/2009/comments/commlO.pdf 

10 See Advisory Opinion Procedures, 74 Fed. Reg. 32160 (July 7, 2009), available at 

www.fec.gov/law/cfr/eLcompilation/2009/notice_2009-ll.pdf. 

II See Procedural Rules/or Audit Hearings, 74 Fed. Reg. 33140 (July 10,2009), available at 

www.fec.gov/law/cfr/eLcompilation/2009/notice_2009-l2.pdf 

12 Non-complaint generated referrals, also referred to as "internally generated matters," are based on 

information ascertained by the Commission in the normal course of carrying out its supervisory 

responsibilities. See 2 U.S.c. 437g and note 6 above. 

13 See Procedural Rule/or Notice to Respondents in Non-Complaint Generated Matters, 74 Fed. Reg. 

38617 (August 4, 2009), available at www.fec.gov/law/cfr/eLcompilation/2009/notice_2009-l8.pdf. 

14 This Guidebook is available at http://www.fec.gov/ern/respondent_guide.pdf. 

3
 
context of criminal proceedings, is Brady v. Maryland. 15 Brady held that the Due Process 

Clause of the Fifth Amendment to the United States Constitution requires the government 

to provide criminal defendants with exculpatory evidence - i.e., "evidence favorable to 

an accused," that is "material to guilt or punishment" - known to the government but 

unknown to the defendant. 

As noted, the Supreme Court in Brady held that the Due Process Clause requires 

the government to provide criminal defendants with exculpatory or potentially 

exculpatory evidence that is "material to guilt or punishment." "The rationale underlying 

Brady is not to supply a defendant with all the evidence in the Government's possession 

which might conceivably assist in the preparation of his defense, but to assure that the 

defendant will not be denied access to exculpatory evidence known only to the 

Government.,,16 Brady is a rule of disclosure, not of discovery. I? Therefore, Brady 

obligations apply even when a defendant does not request the evidence. 18 The 

obligations also apply regardless ofthe good faith of the prosecutor. 19 However, no 

constitutional duty exists under Brady to provide evidence already in the defendant's 

possession or which can be obtained with reasonable diligence.2o 

In Giglio v. United States, 405 U.S. 150, the Supreme Court went one step further 

by requiring disclosure in criminal proceedings "[w]hen the 'reliability of a particular 

witness may well be determinative of guilt or innocence, '" and the prosecution has 

evidence that impeaches that witness' testimony.21 "Such [impeachment] evidence is 

'evidence favorable to an accused' so that if disclosed and used effectively, it may make 

the difference between conviction and acquittal."n For example, courts have held that 

impeachment evidence for a key testifying witness includes but is not limited to the 

following: Prior statements by a witness that are materially inconsistent with the 

witness's trial testimony;23 a conviction of perjury;24 prosecutorial intimidation of a 

witness;25 and plea bargains and informal statements by the prosecution that a witness 

would not be prosecuted in exchange for his testimony. 26 

Because Brady disclosure in criminal proceedings is required under the Due 

Process Clause, legal privileges against discovery such as attorney-client, work-product, 

or deliberative process do not allow the government in criminal proceedings to avoid 

15 Brady v. Maryland, 373 U.S. 83, 87-88 (1963) (Brady).
 

16 United States v. LeRoy, 687 F.2d 610, 619 (2d Cir. 1983) (citations omitted).
 

17 See United States v. Bagley, 473 U.S. 667,675 n.7 (1985) (Bagley).
 

18 See United States v. Agurs, 427 U.S. 97, 107-10 (1976).
 

19 Brady, 373 U.S. at 87.
 

20 See, e.g., United States v. Meros, 866 F.2d 1304, 1308 (11 th Cir 1989); Hoke v. Netherland, 92 F.3d
 

1350,1355-56 (4th Cir. 1996); United States v. Beaver, 524 F.2d 963, 966 (5th Cir. 1975).
 

21 Giglio v. United States, 405 U.S. 150, 154-55 (1972) (Giglio).
 

22 Bagley, 473 U.S. at 676 (quoting Brady, 373 U.S. at 87).
 

23 Id. at 677.
 

24 United States v. Cuffle, 80 F.3d 514, 517-19 (D.C. Cir. 1996).
 

25 Simmons v. Beard, 581 F.3d 158, 169 (3rd Cir. 2009).
 

26 Giglio, 405 U.S. at 154-55; United States v. Edwards, 191 F. Supp. 2d 88, 90 (D.D.C. 2002); United
 

States v. Buettner-Janusch, 500 F. Supp. 1287, 1288 (S.D.N.Y. 1980).
 

4 
disclosure on these grounds.27 However, courts have recognized that Brady does not 

apply to attorne~ strategies, legal theories, and evaluations of evidence because they are 

not "evidence." 8 

B. The Legal, Professional, and Ethical Duties to Disclose - the Lawyer's 

Independent Obligations in Criminal Proceeding. 

In addition to, and quite separate from, the Constitutional requirements in 

criminal cases, there is broad acceptance in the legal and judicial professions that there is 

also an ethical obligation to provide exculpatory or incriminating information to 

respondents and litigants that, if not provided, may negatively impact the ability of a 

respondent or litigant to obtain a just result through a fair and impartial proceeding with 

the government. 

For example, Rule 3.8(d) of the American Bar Association's Model Rules of 

Professional Conduct (ABA Model Rules), imposes an ethical duty on criminal 

prosecutors that is separate and independent from the Constitutional disclosure 

obligations addressed in Brady. The ABA Model Rules are in force in most State courts 

and many Federal Courts. Specifically, Rule 3.8(d) requires that a criminal prosecutor 

"make timely disclosure to the defense of all evidence or information known to the 

prosecutor that tends to negate the guilt of the accused or mitigates the offense" so that 

the defense can make meaningful use of the evidence and information in making such 

decisions as whether to plead guilty and how to conduct its defense?9 

The Supreme Court has also referred to the status of a U.S. Attorney in the 

"federal system" as "the representative not of an ordinary party to a controversy, but of a 

sovereignty whose obligation to govern impartially is as compelling as its obligation to 

govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall 

win a case, but that justice shall be done.,,3o Therefore, both Constitutional issues and 

ethical issues must be considered when a procedure such as the one enunciated here today 

is formulated and adopted. 

27 See Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 254 (4th ed. 2009); United 

States v. Goldman, 439 F. Supp. 337,350 (S.D.NY 1977). 

28 Morris v. Ylst, 447 F.3d 735, 742 (9th Cir. 2006); u.s. v. NYNEX Corp., 781 F. Supp. 19,25-26 (D.D.C. 

1991); see Williamson v. Moore, 221 F.3d 1177, 1182 (lith Cir. 2000). 

29 See American Bar Association, Model Rules of Professional Conduct, Rule 3.8, Special Responsibilities 

of a Prosecutor, available at www.abanet.org/cpr/mrpc/rule 3 8.html. See also Formal Opinion 09-454, 

Prosecutor's Duty to Disclose Evidence and Information Favorable to the Defense, American Bar 

Association, Standing Committee on Ethics and Professional Responsibility, available at 

www.nacdl.org/public.nsf/whitecollar/ProsecutoriaIMisconduct/$FILE/09-454.pdf. 

30 Berger v United States, 295 U.S. 78, 88 (1935); see also Statement of Attorney General Eric Holder 

Regarding United States v. Theodore F. Stevens, available at www.justice.gov/opa/pr/2009/ApriI/09-ag288.htm!. 

5
 
C. Disclosure in Governmental Civil Proceedings. 

Courts have held that the Due Process Clause does not require application of 

Brady in administrative proceedings. 31 Nevertheless, some Federal agencies recently 

have applied Brady principles to their civil administrative enforcement proceedings. For 

example, the Federal Energy Regulatory Commission (FERC) recently issued a policy 

statement that provides respondents with access to certain exculpatory evidence during 

that agency's investigations and adjudications. 32 Under FERC's regulations, FERC can 

conduct either an informal or formal investigation. The new FERC Policy Statement 

provides, in relevant part that "[d]uring the course of an investigation ... , Enforcement 

staff will scrutinize materials it receives from sources other than the investigative 

subject(s) for material that would be required to be disclosed under Brady. Any such 

materials or information that are not known to be in the subject's possession shall be 

provided to the subject.,,33 

Similarly, the Securities and Exchange Commission (SEC) adopted a rule of 

practice in 1995 for its civil enforcement proceedings whereby its Division of 

Enforcement shall make available for inspection and copying "documents obtained by the 

Division prior to the institution of proceedings, in connection with the investigation 

leading to the Division's recommendation to institute proceedings.,,34 The SEC rule 

permits certain documents to be withheld by the agency, including those documents that 

are privileged, pre-decisional or work product, a document that would identify a 

confidential source, or documents identified to a hearing officer as being properly 

withheld for good cause.

35 

However, SEC rule 201.230(b)(2) specifically states that nothing in the rule 

"authorizes the [SEC's] Division of Enforcement in connection with an enforcement or 

disciplinary proceeding to withhold, contrary to the doctrine ofBrady, ... documents that 

contain material exculpatory evidence.,,36 Although the SEC has limited the application 

of rule 201.230 to require the "production of examination and inspection reports to 

circumstances where the Division of Enforcement intends to introduce the report into 

evidence, either in reliance on the report to prove its case, or to refresh the recollection of 

any witness," this limitation "does not alter the requirement that the Division produce 

3\ Mister Discount Stockbrokers v. SEC, 768 F.2d 875, 878 (7th Cir. 1985) (no right to exculpatory 

evidence in National Association of Securities Dealers (NASD) proceedings which are treated the same as 

administrative agency action); Sanford v. NASD, 30 F. Supp. 2d 1,22 n.12 (D.D.C. 1998) (same); NLRB v. 

Nueva Eng 'g, Inc., 761 F.2d 961, 969 (4th Cir. 1985) ("[W] e find Brady inapposite and hold that the All 

r:roperly denied Nueva's demand for exculpatory materials."). 

2 See FERC Policy Statement on Disclosure of Exculpatory Materials, Docket No. PLl 0-1-000, 129 FERC 

61,248 (Dec. 17,2009) (FERC Policy Statement), available at http://www.ferc.gov/whats-new/commmeet/2009/12l709/M-2.pdf. 

33 See FERC Policy Statement at 9. 

34 See 17 C.F .R. § 20 l.230(a)(l) (2010), available at 

http://edocket.access.gpo.gov/efr_20 10/aprqtrlpdf/17cfr20 1 230.pdf 

35 17 C.F.R. § 201.230(b)(l). 

36 17 C.F.R. § 201.230(b)(2). 

6 
documents containing material exculpatory evidence as required by Brady v. 

Maryland. ,,37 

As with FERC and the SEC, the Commodity Futures Trading Commission 

(CFTC) also provides for disclosure of certain information during the "discovery" phase 

of its formal adjudications. 38 In addition to a prehearing exchange of documents, 

identities of witnesses, and an outline of its case, the CFTC's Division of Enforcement 

"shall make available for inspection and copying by the respondents" certain 

documents. 39 These documents include all documents subpoenaed by the CFTC and all 

transcripts of investigative testimony and exhibits to those transcripts.40 However, the 

Division of Enforcement may withhold, for example, the identity of a confidential source, 

confidential investigatory techniques, and other confidential information, such as trade 

secrets.41 Privileged documents and information may also be withheld by CFTC's 

Division of Enforcement. 42 

In the case of this Commission, as a Federal agency engaged in proceedings to 

find liability of persons under Federal laws, whose conduct can lead to civil penalties and 

potentially has the reach ofthe criminal system, it has been the Commission's practice to 

provide certain types of information to respondents. The Commission is formalizing its 

practice to ensure effective and fair enforcement of the Act. 

The Commission recognizes that Brady was decided in the context of a criminal 

proceeding and that its holding, therefore, does not extend, by its own terms, to a Federal 

agency civil enforcement agency proceeding. However, the Commission is empowered 

(a) to civilly pursue matters that may have potential criminal consequences, and (b) to 

engage respondents in the enforcement process, and possibly in litigation if the 

Commission and respondents are unable to reach a mutually acceptable voluntary 

conciliation agreement, where a Court may impose a civil monetary penalty, injunctive, 

or other relief. See 2 U.S.C. § 437g(a)(6)(A). 

The Commission has also entered into a Memorandum of Understanding with the 

Department of Justice (DOJ) whereby the Commission will refer certain matters to the 

DOJ for criminal prosecution review and whereby DOJ will refer matters to the 

37 See Securities and Exchange Commission, Explanation and Justification: Adoption of Amendments to
 

the Rules of Practice and Delegations of Authority of the Commission, 69 Fed. Reg. 13166, 13170 (Mar.
 

19, 2004), available at www.sec.gov/rules/fina1l34-49412.htm.
 

38 See 17 C.F.R. § 10.42 (2010), available at
 

http://edocket.access.gpo.gov/cfr_201 0/aprqtr/pd£'17cfrl 0.42.pdf.
 

39 See 17 C.F.R. § 10.42(a)(1) & (2); 17 C.F.R. § 1O.42(b)(1).
 

40 /d. See also In re First National Monetary Corp., Opinion and Order, CFTC No. 79-56, CFTC No. 79­


57 (Nov. 13, 1981) (Any material ... known to the Division of Enforcement, or which by the exercise of
 

due diligence may become known to the Division, that is arguably exculpatory and material to guilt or
 

punishment within the meaning of Brady [and its progeny] should be either provided to respondent directly,
 

or provided to the [ALJ], for his detennination as to whether it is productible [sic] or not).
 

41 17 C.F.R. § 1O.42(b)(2).
 

42 17 C.F.R. § 10.42(b)(3).
 

7
 
Commission.43 Nothing in the procedure adopted herein is intended to impact in anyway 

the Commission's conduct with respect to, and relationship with, the DOJ, including any 

agreement between the Commission and the DOJ whereby the Commission agrees not to 

disclose information obtained from the DOJ. The procedure adopted herein provides for 

mandatory withholding of information by the Office of General Counsel of any 

documents or information submitted to the Commission by the DOJ either pursuant to an 

agreement between the Commission and the DOJ or simply upon request from the DOJ 

not to disclose the information.44 Moreover, the procedure adopted herein protects from 

disclosure not only the information submitted by the DOJ but also any information that 

was derived from such information, including all separate documents quoting, 

summarizing, or otherwise using information provided by the DOJ.45 

Accordingly, the Constitutional and ethical principles of fairness and due process 

in Brady, as well as the procedures adopted by other Federal agencies, inform the 

Commission's adoption of the procedure announced today in its civil administrative 

enforcement process. 

In summary, while the Commission does not believe that the Constitution requires 

the agency to institute a procedure requiring disclosure of documents and information, 

including exculpatory information, to respondents in its civil enforcement process, the 

Commission's enforcement proceedings may, in some instances, infonn potential or 

concurrent criminal proceedings. Accordingly, adopting a formal internal procedure 

requiring disclosure of infonnation to respondents will (I) eliminate uncertainty 

regarding the Commission's position on this issue, (2) serve the Commission's goal of 

providing fairness to respondents, and (3) set forth a written procedural framework within 

which disclosures are made. 

III. Current Disclosure Process. 

Before the Commission may determine that there is probable cause to believe a 

violation of the Act has occurred or is about to occur, the Act pennits respondents to 

present directly to the Commission their interests and positions on the matter under 

review. The Commission's General Counsel shall notify respondents prior to any 

recommendation to the Commission by the General Counsel to proceed to a vote on 

probable cause.46 Included in this notification is a written briefstating the position ofthe 

General Counsel on the legal and factual issues of the case to which respondents may 

reply.47 This allows the Commission to be infonned not only by the recommendations of 

its General Counsel, but also by the factual presentations and legal arguments of 

respondents. By requirement of the Act, or by its discretion, the Commission has similar 

43 See Department of Justice and Federal Election Commission, Memorandum ofUnderstanding, 43 Fed. 

Reg. 5441 (Feb.8, 1978) 

44 See Updated Formal Procedure at paragraph (b)(1)(v), below. 

45 !d.
 

46 See 2 U.S.c. 437g(a)(3).
 

47 See 2 U.S.c. 437g(a)(3); see also 11 C.F.R. § 111.16.
 

8 
procedures at various stages of the enforcement process to keep the Commissioners 

informed both by its staff and by respondents. 

In addition, while the Commission may attempt to conciliate matters with 

respondents at any time, the Act requires the Commission to attempt conciliation after it 

finds probable cause.

48 Ifthe Commission determines that there is probable cause, the 

Act requires that, for a period of at least 30 day (or at least 15 days, if the probable cause 

determination occurs within 45 days of an election), the Commission must attempt to 

correct or prevent the violation through conference, conciliation, and persuasion.49 

The General Counsel provides a probable cause brief to respondents presenting 

aGC's analysis of the information and may address any available exculpatory evidence. 

The Commission's current practice at the probable cause stage has generally been to 

provide respondents, upon request, with information cited or relied upon (whether or not 

cited) in the General Counsel's probable cause brief. Where possible, this has included 

documents containing the information upon which aGC is relying to support its 

recommendation to the Commission that there is probable cause to believe a violation of 

the Act has occurred. This production of documents is subject to all applicable privileges 

and confidentiality considerations, including the confidentiality provisions of the Act. 

Where such considerations apply, aGC has generally provided only the relevant 

information derived from the document, and not the document itself. Examples of the 

types of documents aGC has provided at this stage are deposition transcripts, responses 

to formal discovery, and documents obtained in response to requests for documents. In 

instances where aGC obtains factual information from a source other than the respondent 

that tends to exculpate the respondent, aGC may note the existence of the information in 

its brief, particularly if aGC does not know whether a respondent is already aware of the 

information.so In instances where aGC provides mitigating or exculpatory information, 

aGC provides any documents cited to in connection with that information, such 

production is also subject to the same privilege and confidentiality concerns noted above. 

In two limited instances, aGC may provide information to respondents earlier 

than the probable cause stage in the enforcement process. First, pursuant to the 

Commission's Statement of Policy Regarding Deposition Transcriptions in Nonpublic 

Investigations, all deponents, including respondent deponents, may obtain a copy of the 

transcript of their own deposition, including any exhibits that may have been obtained 

from sources other than the respondent, provided there is no good cause to limit the 

deponent's access to the transcript. 5

I Second, aGC may share information, including 

documents, with respondents during the post-investigative pre-probable cause 

conciliation process to assist in explaining the factual basis for a violation. That 

48 See 2 U.S.c. 437g(a)(4).
 49 Id.
 

50 When advising the Commission on whether aGC intends either to proceed with its probable cause 

recommendation or to withdraw the recommendation, aGC will also provide and discuss the potentially 

exculpatory evidence, as well as any available mitigating evidence. See 11 C.F.R. § 111.16(d). 

51 See Statement ofPolicy Regarding Deposition Transcriptions in Nonpublic Investigations, 68 Fed. Reg. 

50688 (Aug. 22, 2003), available at www.fec.gov/agenda/agendas2003/notice2003­

15/fr68n163p50688.pdf. 

9
 
infonnation may include documents not already in the respondent's possession. This 

practice is used solely for the purpose of facilitating conciliation. 

As the current practice has demonstrated, the Commission's probable cause 

considerations and subsequent conciliation efforts are furthered when, in presenting their 

respective positions, respondents have the greatest practicable access to documents and 

infonnation gathered by the agency, including certain infonnation that might be favorable 

to the respondent. This allows both the Commission's Office of General Counsel and the 

respondents that are under investigation to present fully infonned submissions and frame 

legal issues for the Commission's consideration. 

At the same time, however, the Act and other laws restrict infonnation that the 

Commission may make public without the consent of persons under investigation. 52 

Investigations that involve multiple respondents, each of whom may be at different stages 

of the enforcement process, raise questions as to what documents and infonnation the 

Commission may disclose to any given respondent before detennining probable cause. 

The procedure adopted herein is not intended to expand the disclosure of 

infonnation regarding a co-respondent as to any such infonnation that is subject to 

existing confidentiality requirements under the Act. In order to reconcile the 

Commission's interests in pennitting respondents to present fully their positions without 

compromising the Commission's confidentiality obligations, the Commission is 

fonnalizing its procedure. This agency procedure clarifies how the Commission will, 

consistent with the confidentiality provisions of2 U.S.C. 437g(A)(12), enhance its 

enforcement process by pennitting increased access to documents and infonnation held 

by the Commission. 

This procedure wiIl allow efficient, fair and just resolution of issues regarding 

disclosure of exculpatory infonnation and avoid unnecessary consumption of respondent 

and Commission staff resources in future proceedings. 

IV. The Updated Formal Procedure. 

The Commission is fonnalizing its agency procedure to provide respondents in 

enforcement proceedings with relevant infonnation ascertained by the Commission as the 

result of an investigation. The Commission believes that, while not mandated by the 

Constitution, the principle of Brady, and its judicial progeny, should apply following 

investigations conducted under Section 437g of the Act and Subpart A of Part 111 of the 

Commission's regulations. 53 

The Commission believes that fonnalizing the procedure will promote fairness in 

the Commission's Section 437g enforcement process. The Commission also believes the 

procedure articulated in this Notice will promote administrative efficiency and certainty, 

52 See, e.g., 2 U.S.c. 437g(a)(4)(B)(i) and (a)(l2).
 

53 See generally 2 U.S.c. 437g and 11 C.F.R. Part 111.
 

10 
and will contribute to the Commission's goal of open, fair and just investigations and 

enforcement proceedings. 

For purposes of this procedure, the term "documents" includes writings, 

drawings, graphs, charts, photographs, recordings and other data compilations, including 

data stored by computer, from which information can be obtained. 

For purposes ofthis procedure, the term "exculpatory information" means 

information gathered by the Office of General Counsel in its investigation, not reasonably 

knowable by the respondent, that is relevant to a possible violation of the Act or the 

Commission's regulations, under investigation by the Commission and that may tend to 

favor the respondent in defense of violations alleged or which would be relevant to the 

mitigation of the amount of any civil penalty resulting from a finding of such a violation 

by a court. 

The procedure is as follows: 

(a) Documents to be Produced or Made Available. 

(1) Subject to paragraphs (b) through (e) of this procedure, and unless 

otherwise directed by the Commission, by an affirmative vote of four or 

more Commissioners,54 the Office of General Counsel shall make 

available to a respondent all relevant documents gathered by the Office of 

General Counsel in its investigation, not publicly available and not already 

in the possession of the respondent, in connection with its investigation of 

allegations against the respondent. This includes any documents that 

contain exculpatory information, as defined herein. This shall not include 

any documents created internally by a Commissioner or by a member of a 

Commissioner's staff. This shall be done either by producing copies in 

electronic format or permitting inspection and copying of such documents. 

The documents covered by this procedure shall include: 

(i)	 Documents, not in possession of a respondent, turned over in 

response to any subpoenas or other requests, written or 

otherwise; 

(ii)	 all deposition transcripts and deposition transcript exhibits; 

and 

(iii)	 any other documents, not otherwise publicly available and 

not in possession of a respondent, gathered by the 

Commission from sources outside the Commission. 

54 In any instance in which the Office of General Counsel has concerns that disclosure of information
 

pursuant to this procedure would lead to a result that is materially inconsistent with either the
 

Commission's administrative responsibilities or with the promotion offaimess and efficiency in the
 

Commission's enforcement process, the Office of General Counsel may seek formal guidance from the
 

Commission on how it should proceed.
 

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(2) Nothing in this paragraph (a) shall limit the authority of the Commission, 

by an affirmative vote of four or more Commissioners, to make available 

or withhold any other document, or shall limit the capacity of a respondent 

to seek access to, or production of, a document through timely written 

requests to the Commission subsequent to the production of documents 

pursuant to paragraph (d) below. Ifrespondent submits such a written 

request, respondent must, ifrequested to do so by the Commission, sign a 

tolling agreement for the time necessary to resolve the request. 

(3) Nothing in this procedure requires the Office of General Counsel to 

conduct any search for materials other than those it receives in the course 

of its investigatory activities. This procedure does not require staff to 

conduct any search for exculpatory materials that may be found in the 

offices of other agencies or elsewhere. 

(b) Documents that May Be Withheld. 

(l) Unless otherwise determined by the Commission, as provided in 

subparagraph (2) below, the Office of General Counsel shall withhold a 

document or a category of documents from a respondent if: 

(i)	 the document contains privileged information, such as, but 

not limited to, attorney-client communications, attorney-work 

product, staff-work product or work product subject to the 

deliberative process privilege; provided, however, if the 

document contains only a portion ofmaterial that should not 

be disclosed, if possible to do so effectively, the Office of 

General Counsel shall excise or redact from such document 

any information that prevents disclosure ifthe remaining 

portion is informative and otherwise qualifies for disclosure 

as provided herein, prior to disclosing the document or 

information contained therein; 

(ii)	 the document or category of documents is determined by the 

General Counsel to be not relevant to the subject matter of 

the proceeding; 

(iii)	 the Commission is prevented by law or regulation from 

disclosing the information or documents, including, under 

certain circumstances, information obtained from, or 

regarding, co-respondents;55 

(iv)	 the document contains information only a portion of which 

prevents disclosure as provided herein, and that portion 

cannot be excised or redacted without affecting the main 

import of the document; or 

55 See paragraph (e) of this procedure addresses issues regarding documents and information that may be 

subject to confidentiality pursuant to sections 437g(a)(4)(B)(i) and 437g(a)(l2) of the Act. 2 U.S.C. 

437g(a)(4)(B)(i) and 437g(a)(l2). 

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(v)	 the Commission obtained the infonnation or documents from 

the Department of Justice or another government entity, 

either pursuant to a written agreement with the Department of 

Justice, or the other government entity, not to disclose the 

infonnation, documents or category of documents or upon 

written request from the Department of Justice, or the other 

government entity. Withholding any such infonnation 

obtained from the Department of Justice also includes 

withholding any infonnation that was derived from such 

infonnation, including all separate documents quoting, 

summarizing, or otherwise using infonnation provided by the 

other government entity. 

(2)	 For any document withheld by the General Counsel pursuant to 

subparagraphs (1)(i)-(I)(iv) above, the Commission may, pursuant to a 

timely written request by the respondent or otherwise, consider whether to 

make available such document and, after consideration of relevant law and 

regulation, by an affinnative vote offour or more Commissioners, may 

detennine, consistent with relevant law and regulation, whether or not it is 

appropriate to produce such document. If respondent submits such a 

written request, it must be within 15 days of the Commission's production 

of documents and respondent must, if requested to do so by the 

Commission, sign a tolling agreement for the time necessary to resolve the 

request. 

(3) For any document withheld by the General Counsel pursuant to a written 

agreement with, or written request from, the Department of Justice or the 

other government entity under subparagraph (1)(v) above, the General 

Counsel shall provide a report to the Commission identifying the 

documents and infonnation that has been withheld and providing the 

Commission with a copy ofthe written agreement with, or request from, 

the Department ofJustice or the other government entity. 

(c) Withheld Document List. 

(1) Within ten business days ofreceipt of documents disclosed pursuant to 

paragraph (d) below, a respondent may request in writing that the 

Commission direct the General Counsel to produce to the respondent a list 

of documents or categories of documents withheld pursuant to paragraph 

(b)(I) ofthis procedure. If respondent submits such a written request, 

respondent must sign a tolling agreement for the time necessary, not to 

exceed 60 days, for the General Counsel to provide the list of documents, 

unless the Commission, by an affinnative vote of four or more 

Commissioners, detennines that a tolling agreement is not required. 

Requests for a list of documents or categories of documents shall be 

granted, unless the Commission, by an affinnative vote of four or more 

13 
Commissioners, denies the request, in whole or in part. Once the 

Commission has voted upon the written request, respondent may not seek 

reconsideration of that decision. 

(2) When similar documents are withheld pursuant to paragraph (b)(1), those 

documents may be identified by category instead of by individual 

document. 

(d) Timing of Production or Inspection and Copying. 

(1) The disclosure of documents and information referenced herein shall be 

made pursuant to a timely written request by the respondent filed within 

fifteen days ofthe dates specified in subparagraphs (i) and (ii) below, and 

subject to paragraph (e), or unless otherwise determined by the 

Commission by an affirmative vote of four or more Commissioners. The 

General Counsel shall produce in electronic format, or commence making 

documents available to a respondent for inspection and copying pursuant 

to this procedure, at the earlier of the following: 

(i)	 the date of the General Counsel's notification to a respondent 

of a recommendation to the Commission to proceed to a vote 

on probable cause; or 

(ii)	 no later than seven days after certification of a vote by the 

Commission to conciliate with a respondent. 

(e) Issues Respecting Documents provided by, or relating to, Co-respondents. 

(1)	 If there is more than one respondent that is under investigation in the same 

matter, or in related matters, before the General Counsel may produce 

documents, other than exculpatory information or documents cited or 

relied on in the General Counsel's brief that accompanies its notice of a 

recommendation to vote on probable cause, to one co-respondent that 

either (a) have been provided to the Commission by another co-respondent 

or (b) that relate to another co-respondent, the General Counsel must 

obtain a confidentiality waiver from the co-respondent who provided the 

document or about whom the document relates. Additionally, the 

respondent receiving such documents may be required to sign a 

nondisclosure agreement to keep confidential any document or 

information it obtains from the Commission. 

(2)	 If the co-respondent who provided the document or about whom the 

document relates does not agree to provide a confidentiality waiver, the 

General Counsel shall, ifit is possible to do so effectively, in accordance 

with 2 U.S.C. 437g(a)(4)(B)(i) and 437g(a)(12), summarize or redact 

those portions of the document or documents that are subject to 

confidentiality under the Act, or are determined to be in the category of 

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documents to be withheld under paragraph (b) in order to remove that 

portion of material that may not be disclosed. 

(3)	 If the co-respondent who provided the document or about whom the 

document relates does not agree to provide a confidentiality waiver and it 

is not possible to effectively summarize or redact those portions of the 

document or documents that are subject to confidentiality, the General 

Counsel shall seek direction from the Commission, by an affirmative vote 

of four or more Commissioners, regarding how to balance the competing 

concerns of disclosure and confidentiality. In any event, the General 

Counsel shall produce complete or appropriately redacted copies of those 

documents cited or relied on in the brief that accompanies its notice ofa 

recommendation to vote on probable cause, whether or not the documents 

have been specifically identified in the brief. 

(4)	 If the confidentiality issue cannot be resolved with respect to a corespondent (e.g., lack of waiver, ineffective redaction, etc.), the General 

Counsel may, in an appropriate case make a recommendation to the 

Commission for segregation of the matters under review. 

(5)	 If any document or information provided to the Commission by a one corespondent contains exculpatory information, or is cited or relied on in the 

General Counsel's brief that accompanies its notice of a recommendation 

to vote on probable cause for another co-respondent, that information or 

document will be provided to the other co-respondent, which shall be 

subject to the same redactions described in paragraph (b)(l)(i). 

(6) Before disclosing any portion of the document that raises an unresolved 

confidentiality issue, the General Counsel shall seek a determination by 

the Commission, by an affirmative vote of four or more Commissioners, 

that disclosure of a document containing exculpatory information 

(redacted, summarized, or in any other way altered) conforms to the 

confidentiality provisions of2 U.S.C. § 437g(a)(4)(B)(i) and 437g(a)(l2). 

(f) Place of Inspection and Copying Costs and Procedures. 

(I)	 Documents subject to inspection and copying pursuant to this procedure 

shall be made available to the respondent for inspection and copying at the 

Commission's office, or at such other place as the Commission, in writing, 

may agree. A respondent shall not be given custody of the documents or 

leave to remove the documents from the Commission's offices pursuant to 

the requirements of this procedure unless formal written approval is 

provided by an affirmative vote of four or more Commissioners. 

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(2) The respondent may obtain a photocopy of any documents made available 

for inspection. The respondent is responsible for all costs related to 

photocopying of any documents. 

(g) Continuing Obligation to Produce During Conciliation. 

(1)	 If, prior to the completion of an investigation, the Commission votes to 

enter into conciliation, the General Counsel shall take reasonable and 

appropriate steps to limit any further formal investigation related to that 

respondent, so long as the respondent enters into a tolling agreement ofthe 

applicable statute of limitation. If there is no such tolling agreement, the 

formal investigation and conciliation may take place simultaneously. The 

tolling agreement must have a specific time for its duration approved by 

the Commission, by an affirmative vote of four or more Commissioners, 

and shall not be open-ended. If there is more than one respondent under 

investigation in the same matter, or in related matters, and the 

Commission votes to enter into conciliation with one or more respondents 

prior to the completion of a formal investigation, the General Counsel 

shall take reasonable and appropriate steps to limit any further formal 

investigation as to those respondents in conciliation, so long as the 

respondents enter into a tolling agreement of the applicable statute of 

limitation. If the Commission receives documents in the course of the 

formal investigation as to respondents not in conciliation that would 

otherwise be required to be produced under this procedure during such 

investigation, the Commission shall promptly produce them to the 

respondent in conciliation pursuant to this procedure. 

(2)	 If the Commission receives documents during such conciliation, from 

whatever source, the General Counsel shall within a reasonable period of 

time inform the respondent of any documents obtained that would 

otherwise be required to be produced under this procedure, and as to such 

documents, the General Counsel shall timely produce them to the 

respondent, consistent with the statutory confidentiality provision 

preventing disclosure of any information derived in connection with 

conciliation attempts. 2 U.s.C. 437g(a)(4)(B). 

V.	 Failure to Produce Documents as Required Herein - Remedies and 

Consequences. 

In the event that a document required to be made available to a respondent 

pursuant to this procedure is not made available, no reconsideration by the Commission is 

required, unless the Commission concludes, by an affirmative vote of four or more 

Commissioners, that there is a reasonable likelihood that the decision of the Commission 

or result of the conciliation would have been different than the one made had such 

disclosure taken place. Any failure by the Commission to make a document available 

does not create any rights for a respondent to seek judicial review, nor any right for a 

16
 
defendant in litigation to request or receive a dismissal or remand or any other judicial 

remedy. A respondent may not request reconsideration by the Commission more than ten 

days after the conclusion of conciliation. 

VI. Consequences of Disclosure. 

Disclosure of documents pursuant to this procedure is not an admission by the 

Commission that the information or document exculpates or mitigates respondent's 

liability for potential violations of the Act. 

VII. Applicability During Civil Litigation. 

In any civil litigation with the respondent, the discovery rules of the court in 

which the matter is pending, and any order made by that court, shall govern the 

obligations of the Commission. The intention of the Commission is for this procedure to 

serve as internal guidance only and the procedure adopted herein does not create any 

rights that are reviewable or enforceable in any court. 

VIII. Annual Review. 

No later than June 1 of each year, the General Counsel shall prepare and distribute 

to the Commission a report describing the application of the procedure adopted herein 

over the previous year. This annual report shall include the General Counsel's 

assessment of whether, and to what extent, the procedure has provided an appropriate 

balance between the Commission's interest in providing respondents with relevant 

documents and information and the confidentiality provisions of the Act, consistent with 

the Commission's goal of maintaining open, fair and just investigations and enforcement 

proceedings, along with any recommendations from the General Counsel regarding how 

the Commission could better accomplish that goal. 

IX. Conclusion. 

Failure to adhere to this procedure does not create a jurisdictional bar for the
 

Commission to pursue all remedies to correct or prevent a violation of the Act.
 

This notice establishes an internal agency procedure for disclosing to respondents 

documents and information acquired by the agency during its investigations in the 

enforcement process. This procedure sets forth the Commission's intentions concerning 

the exercise of its discretion in its enforcement program. However, the Commission 

retains that discretion and will exercise it as appropriate with respect to the facts and 

circumstances of each enforcement matter it considers. Consequently, this procedure 

does not bind the Commission or any member of the general public, not does it create any 

rights for respondents or third parties. As such, this notice does not constitute an agency 

regulation requiring notice of proposed rulemaking, opportunities for public participation, 

prior publication, and delay effective under 5 U.S.C. 553 of the Administrative Procedure 

Act (APA). The provisions of the Regulatory Flexibility Act, 5 U.S.C. 605(b), which 

17
 
apply when notice and comment are required by the APA or another statute, are not 

applicable. 

18