AGENDA DOCUMENT NO. 11-23-D
 

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FEDERAL ELECTION COMMISSION •• ., \' r. I~ Washington, DC 20463	 l ., •• ( .....1 i~ 5: 5u

AGENDA ITEM 

MEMORANDUM 

TO: The Commission For Meeting of S -.;lie-II 

FROM: Cynthia L. Bauer1YoP~ Chair SUBMITTED LATE 

Ellen L. Weintraub / 

Commissioner 

DATE: May 25, 2011 

SUBJECT:	 Agency Procedure for Disclosure of Exculpatory Evidence in the 

Enforcement Process 

We request that the attached draft Agency Procedure for Disclosure of Exculpatory 

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

Attachment 
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FEDERAL ELECTION COMMISSION 

11 CFR Part 111 

[NOTICE 2011-XX] 

Pilot Program for Agency Procedure for Disclosure of Exculpatory Evidence 

in the Enforcement Process 

AGENCY:	 Federal Election Commission 

ACTION:	 Notice of Agency Procedure 

SUMMARY:	 The Federal Election Commission (Commission) is establishing a pilot 

program to fonna1ize the agency's practice of disclosing exculpatory 

evidence acquired 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 Federa1 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. Background 

A. Criminal Proceedings: the Constitutional Obligation under Brady 

In criminal proceedings, the Supreme Court has 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. Brady v. 

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

Brady held that the Due Process Clause required the government to provide criminal 

defendants with exculpatory or potentially exculpatory evidence that is "material to guilt or 

punishment." As the Supreme Court subsequently explained, "[t]he 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 

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denied access to exculpatory evidence known only to the Government.,,1 No duty exists under 

Brady to provide evidence already in the defendant's possession or which can be obtained with 

reasonable diligence? Courts have recognized that Brady does not apply to attorney strategies, 

legal theories, and evaluations of evidence because they are not "evidence.,,3 Moreover, in 

Giglio v. United States, 405 U.S. 150 (1972), the Supreme Court found disclosure in criminal 

proceedings is required "[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's 

testimony.4 

B. Disclosure in Governmental Civil Proceedings. 

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

administrative proceedings.s However, the Constitutional and ethical principles offairness and 

due process in Brady inform the Commission's formalization of its exculpatory evidence 

procedure in its civil administrative enforcement process. Thus, while the Constitution does not 

require the agency to institute a procedure requiring disclosure of exculpatory evidence to 

respondents in its civil enforcement process, doing so will (I) eliminate the potential for 

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. 

II. Exculpatory Evidence Practice and Procedure 

A. Current Practice 

Prior to any recommendation by the Office of General Counsel ("OGC") to the 

Commission to proceed to a vote on probable cause, the General Counsel must notify 

respondents of such a recommendation, and provide a written brief stating the position of the 

General Counsel on the legal and factual issues of the case. 2 U.S.C. 437g(a)(3). Respondents 

have the opportunity to submit a response stating respondents' position on the legal and factual 

issues. Id. This allows the Commission to be informed not only by the recommendations of its 

General Counsel, but also by the arguments of respondents. The Commission has similar 

procedures at various stages ofthe enforcement process to keep informed both by its staff and by 

respondents. 

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

2 See, e.g., United States v. Meros, 866 F.2d 1304, 1308 (11th 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).
 

3 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 (11th Cir. 2000).
 

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

5 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 fmd Brady inapposite and hold that the ALl properly denied Nueva's demand for
 

exculpatory materials.").
 

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

any time, the Act requires the Commission to do so at the probable cause stage. Specifically, if 

the Commission determines that there is probable cause, the Act requires that, for a period of at 

least 30 days (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 such violation by informal 

methods of conference, conciliation, and persuasion." 2 U.S.C. 437g(a)(4). 

The probable cause brief provided to respondents presents aGC's analysis of the 

information and may address any available exculpatory evidence. The Commission's practice at 

the probable cause stage has generally been to provide respondents, upon request, with 

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

included producing copies of 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 ofthe 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 evidence from a source other than the respondent that tends to exculpate the respondent, 

aGC may generally describe the evidence in its brief, particularly if aGC does not know 

whether a respondent is already aware of the evidence.6 In instances where aGC provides 

mitigating or exculpatory information, such production is also subject to privilege and 

confidentiality concerns. 

In two instances, aGC may provide information to respondents at earlier stages 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.? 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 information 

may include documents not already in the respondent's possession. This practice is used for the 

purpose of facilitating conciliation. 

aGC will also discuss the potentially exculpatory evidence, as well as any available mitigating evidence, in 

written documents advising the Commission whether to proceed with the probable cause recommendation or 

whether to withdraw the recommendation from Commission consideration. See 11 C.F.R. § lll.l6(d). 

7 See Statement of Policy Regarding Deposition Transcriptions in Nonpublic Investigations, 68 Fed. Reg. 50688 

(Aug. 22, 2003), available at http://www.fec.gov/agendalagendas2003/notice2003-l5/fr68n163p50688.pdf. 

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B.	 Pilot Program 

1.	 Definitions 

a.	 For purposes ofthis pilot program, the tenn "documents" includes writings, drawings, 

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

stored by computer, from which infonnation can be obtained. 

b.	 For purposes ofthis pilot program, the tenn "exculpatory evidence" means 

documents in the possession of the Commission, not reasonably knowable by the 

respondent, that are favorable to respondent and material to whether there is probable 

cause that respondent violated the Act. 

2.	 General Rule: Within fifteen (15) days of the date ofthe General Counsel's 

notification to a respondent of a recommendation to the Commission to proceed to a 

vote on probable cause, the Commission shall make available to a respondent all 

documents, not publicly available and not in the possession ofthe respondent, 

obtained in connection with its investigation that contain exculpatory evidence, as 

defined herein. This shall be done either by producing copies in electronic fonnat or 

pennitting inspection and copying of such documents. The following documents are 

covered by this procedure: 

a.	 Documents, not in possession of a respondent, turned over in response to any 

subpoenas or other requests, written or otherwise; 

b.	 all deposition transcripts and deposition transcript exhibits; and 

c.	 any other documents, not publicly available and not in possession of a 

respondent, obtained by the Commission from sources outside the 

Commission. 

3.	 Nothing in this pilot program shall require aGC to conduct any search for materials 

outside those it receives in the course of its investigatory activities, nor does it require 

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

of other agencies. Consistent with Brady and its progeny, nothing in this pilot 

program requires the Commission to produce documents containing attorney 

strategies, legal theories, and evaluations of evidence or similar documents that are 

not "evidence." 

4.	 Excluded Documents: The Commission shall withhold a document or a category of 

documents from a respondent if: 

a.	 the document or category of documents contains privileged infonnation, such 

as, but not limited to, attorney-client communications, attorney-work product, 

or the deliberative process privilege; provided, however, if the document 

contains only a portion of material that may not be disclosed, aGC shall 

excise or redact from such document such infonnation that prevents disclosure 

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if the remaining portion is informative, and the remaining portion shall then 

be disclosed; 

b.	 the document or category of documents is not relevant to the subject matter of 

the proceeding; 

c.	 the document or category of documents contains information only a portion of 

which prevents disclosure, and that portion cannot be excised or redacted 

without altering the meaning of the document; or 

d.	 the Commission is prevented by law, regulation, or upon agreement with the 

source ofthe information or document from disclosing the document or 

category of documents. This includes any information that was derived from 

such information or documents, including all separate documents quoting, 

summarizing, or otherwise using information provided by the source of the 

information or document. 

5.	 Co-respondents 

Ifthere is more than one respondent under investigation in the same matter, or in related 

matters, before the Commission may produce documents to one co-respondent that either (a) 

have been provided to the Commission by another co-respondent or (b) that relate to another corespondent, aGC 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 must sign a nondisclosure agreement to keep confidential any document or 

information it obtains from the Commission. If the respondent does not agree to provide a 

confidentiality waiver, the information may be produced to respondents if redaction or a 

summary of the information may be provided without violating the confidentiality provisions of 

the Act. 

6.	 Costs 

The respondent is responsible for all costs related to production of documents pursuant to 

this procedure. 

7.	 Remedies and Consequences of Disclosure 

The intentions of the Commission pursuant to these procedures do not create any rights 

that are reviewable or enforceable in any court. Any failure by the Commission to make a 

document available does not create any rights for a respondent to seek judicial review in court, 

nor give a defendant in litigation any rights to request or receive a dismissal or remand or any 

other judicial remedy. 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. 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. 

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8. Pilot Program 

This agency procedure is being established as a pilot program. The pilot program will 

last one year from the time that this procedure is approved. After one year, the Office of General 

Counsel will prepare a Memorandum to the Commission for consideration at Executive Session 

describing the program's application over the year. Such Memorandum should address whether 

the procedure has provided an appropriate balance between the statutory confidentiality 

provisions and the interest in providing respondents with exculpatory documents. At such time, 

a vote will be scheduled on whether the program should continue. Four affirmative votes will be 

required to extend or make permanent the program or the program will terminate. The 

Commission may terminate or modify this pilot program through additional statements prior to 

the twelfth month of the pilot program by an affirmative vote of four of its members. 

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