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September 22, 1980


The opinion of the court was delivered by: Decker, District Judge.


IMPAC responds that this result is barred by two provisions of the Federal Elections Campaign Act and by several provisions of the Freedom of Information Act. The first FECA provision, 2 U.S.C. § 437g(a)(12)(A), states that,

  "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
  person receiving such notification or the person with
  respect to whom such investigation is made."

IMPAC argues that this language seals FEC investigative files forever. This argument is unpersuasive.

The confidentiality provision of the Federal Election Campaign Act was added to the statute when it was extensively amended in 1976. The legislative history of the provision clearly establishes that it was not meant to conceal the results or the contents of an investigation, but rather that it was meant to avoid adverse speculative publicity during the pendency of an investigation. See House Conference Report, No. 94-1057, at 50 (94th Cong., Second Session, April 28, 1976), U.S.Code Cong. & Admin. News 1976, p. 946; 122 Cong.Rec. 8566 (March 80, 1978) (statement of Congressman Hays). Though the enforcement provisions of the Act were again amended in 1979, no substantive change was made or intended in the language of section (a)(12)(A). House Report No. 96-422, at 22-23 (96th Cong., First Sess., Sept. 7, 1979), U.S.Code Cong. & Admin.News 1979, p. 2860. The goal of avoiding speculative publicity was plausibly served by maintenance of the protective order during the pendency of the investigation, but it is difficult to see how that goal is served by continuation of the protective order now that the investigation has terminated. Accordingly, the legislative history would suggest that IMPAC's reliance on (a)(12)(A) is misplaced.

This result is supported by a second consideration. To accept IMPAC's construction of the confidentiality provisions would mean that material which would otherwise not be privileged suddenly achieves the status of confidentiality by virtue of its having been surrendered in the course of an FEC investigation. Since normally privileged material submitted in the course of an agency proceeding is protectible under other statutes, see, e. g., Chrysler Corp. v. Brown, 441 U.S. 281, 294-319, 99 S.Ct. 1705, 1714-1726, 60 L.Ed.2d 208 (1979), or, presumably, traditional common law doctrines, IMPAC's position would provide an extension of protection for precisely that information which has traditionally been deemed open to public scrutiny. In the absence of any clear statutory directive to the contrary, the court declines to reach this anomalous result.

The second FECA provision on which IMPAC relies, 2 U.S.C. § 487g(a)(4)(B)(i), is no more helpful to its cause than (a)(12)(A). This provision establishes that

  "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

This linguistic analysis is buttressed by the policies which underlie (a)(4)(B)(i). The point of that provision seems to have been Congress' desire to facilitate the informal exchange of information and views, so necessary to any conciliation process. See H.Rep. No. 96-422, supra, 21 Where, as here, the information in question was obtained before conciliation was even begun, and where, adhere, the information was not obtained informally, but only after recourse to the courts, no conciliation related policy is served by a continuation of the order. In short, neither of the FECA confidentiality provisions is applicable to the facts of this case.

This leaves IMPAC's Freedom of Information argument. IMPAC cites several portions of the Freedom of Information Act, 5 U.S.C. § 552, which would arguably exempt the documents at issue in this case from FOIA's mandatory disclosure provisions. However, even assuming that these provisions do apply to these documents, they still do not provide a basis for maintaning the protective order. The Supreme Court has expressly held that FOIA exemptions do not create any right of confidentiality on the part of persons whose documents are in the possession of the government. Chrysler Corp. supra, at 290-294, 99 S.Ct. at 1712-1714. This result seems to leave the disclosure question squarely within the discretion of the Commission. Because IMPAC has claimed no special privilege with respect to any of the documents on file, the court is unaware of any reason why it should view the FEC's decision to exercise its discretion in this case as unwarranted.

For all of the above reasons, the motion of the Federal Election Commission must be granted. All protective orders entered in ...

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