AGENDA DOCUMENT NO. 09-72-B 

FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463 

AGE NDAITEfft 

For Meeting of: /1-/9 -0 9' 

November 18, 2009 

Memorandum SUBMITTED LATE

TO:	 The Commission 

FROM:	 Chairman Steven T. Walther 

Vice Chairman Matthew S. Petersen

Commissioner Cynthia L. Bauerly 0& 

Commissioner Caroline C. Hunter (.,~Ij;

Commissioner Donald F. McGahn IIPf~ / 

Commissioner Ellen L. Weintraub UvJ 

Subject:	 Proposed Statement of Policy Regarding Placing First General Counsel's 

Reports on the Public Record 

Attached is a proposed Statement of Policy with respect to placing First General 

Counsel's Reports on the public record in closed enforcement matters, subject to 

appropriate redaction or withholding. 
Proposed Statement of Policy Regarding Placing First General Counsel's Reports 

on the Public Record 

The Federal Election Commission ("Commission") will resume the practice of 

placing all First General Counsel's Reports 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 Information Act ("FOIA"). 

In 200 I, 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. Then, after the Court of Appeals decision in the AFL-CIO case, 

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

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

Policy"). 

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 the Office of General Counsel ("OGC") in a 

General Counsel's Report, but rejected one of several underlying rationales for the 

recommendation. Thereafter, OGC began recommending the approval of a Factual & 

Legal Analysis ("F&LA") in all cases, not just those with reason to believe 

recommendations. From January 2007 forward, F&LAs providing an explanation for the 

Commission's decisions were placed on the public record in new enforcement matters, 

but First General Counsel's Reports were not. 

In the interest of promoting transparency, the Commission is resuming the 

practice of placing all First General Counsel's Reports on the public record, whether or 

not the recommendations in these First General Counsel's Reports are adopted by the 

Commission. 

The Commission will place all First General Counsel's Reports on the public 

record in closed enforcement matters, prospectively and retroactively, while reserving the 

right to redact portions of such documents consistent with the Act, the principles 

articulated by the Court of Appeals in AFL-CIO, and subject to the Commission's 

authority to withhold material under an exemption set forth in the FOIA. 
Until such time as all previously undisclosed First General Counsel's Reports 

have been placed on the public record, the Commission intends to approve any FOIA 

request seeking a First General Counsel's Report or accompanying F&LA that has not 

yet been placed on the public record, but reserves the right to redact portions of such 

documents consistent with the Act, the principles articulated by the Court of Appeals in 

AFL-CIO, and subject to the Commission's authority to withhold material under an 

exemption set forth in the FOIA. 

This document amends an agency practice or procedure. This document does not 

constitute an agency regulation requiring notice of proposed rulemaking, opportunities 

for public comment, 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 apply when notice and comment are required by the APA or 

another statute, are not applicable.