United States District Court, Northern District of Illinois, E.D
September 22, 1980
FEDERAL ELECTION COMMISSION, PETITIONER,
ILLINOIS MEDICAL POLITICAL ACTION COMMIITTEE (IMPAC) ET AL., RESPONDENTS.
The opinion of the court was delivered by: Decker, District Judge.
MEMORANDUM OPINION AND ORDER
Petitioner, the federal Election Commission, is seeking to have this
court dissolve the stipulated protective order entered into between the
parties on March 30, 1978. The stipulated order superseded a court order
entered on March 28, and provided
among other things, that material disclosed by respondent, Illinois
Medical Political Action Committee during the course of a then pending
FEC investigation would remain "sealed from public view until such time
as this Court determines that the confidentiality provision of the act no
longer appl[ies], or for any other reason orders that the record be
reopened." On November 20, 1978, the cause in which the protective order
was entered (a subpoena enforcement proceeding) was dismissed on motion
of the FEC and subject to the provision that "documents heretofore
submitted in camera [are] to be retained by [the] court until completion
of [the FEC] investigation." On November 20, 1979, the parties entered
into a conciliation agreement terminating the FEC investigation. Entry of
this agreement, the Commission argues, requires dissolution of the
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
The "conciliation" process referred to in provision is a phase of
the FEC proceedings which is normally entirely distinct from the
investigative — discovery phase. The statute clearly that in the
conciliation attempts will normally not come until after the
commission's factual investigation has concluded and four members
of the Commission have voted to find that there is "probable cause"
to believe the Act has been violated. 2 U.S.C. § 437g(a)(4)(A)(i).
While it is not difficult to imagine situations in which the
conciliation and investigatory processes will blend into one
another, the exhibit filed in support of the Commission's brief
makes it clear that the documents at issue were turned over
during a wholly distinct investigatory phase of this proceeding.
Accordingly, section (a)(4)(B)(i) cannot plausibly be construed as
protecting the documents currently covered by this court's order.
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 this case
are herby dissolved.
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