Federal Election Commission Main Page
August 15, 1986
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1986-25
Benjamin A. Goldman
Executive Vice President
Public Data Access, Inc.
30 Irving Place, 9th Floor
New York, N.Y. 10003
Dear Mr. Goldman:
This responds to your letters of March 21, 1986, and
June 24, 1986, requesting an advisory opinion concerning
application of the Federal Election Campaign Act of 1971, as
amended ("the Act"), and Commission regulations to a proposed
sale of contributor information copied from reports filed with
the Commission.
You state that Public Data Access ("PDA") is a for-profit
corporation, incorporated in January 1986 under the laws of New
York. Its principal owners include the Council on Economic
Priorities, a nonprofit public service research organization, and
four individuals including PDA's three principal personnel who
are database experts in processing government information for
public use. You state that none of the stockholders are active
in partisan politics, political consulting, or fundraising. You
explain that PDA's corporate purpose is to provide ready access
to government information that is open for public inspection by
collecting and organizing that information in accessible,
affordable, and easy-to-use packages.
You state that PDA seeks to make contributor information
reported to the Commission and on file for public inspection more
readily accessible to the public. In this regard, PDA has
expended approximately $35,000 in programming and in tapes of
reports filed with the Commission to compile contributor
information for the 1984 election cycle by congressional district
and by employer. You note that this data is not currently
available from the Commission in these compilations. You state
that PDA has compiled information on 250,000 contributors who
made contributions of $500 or more into 1135 separate
compilations or packages, one for each of the 435 congressional
districts and one for each of 700 companies with whom
contributors reported an association. In these compilations, PDA
has deleted the street or mailing addresses from the information
obtained from the Commission's public files, corrected zip code
errors, and standardized the spelling of corporate names. As a
result, individual contributors are identified by name, city, and
zip codes, by employer or by the congressional district of the
reported addresses, and by their contributions. You have
submitted sample pages from these compilations that consist of
alphabetical listings of contributors and their contributions in
the following manner:
Jones, JohnNew YorkSmith for President$1,000
NY 10021
You state, however, that PDA's compilations will also be in the
form of books and their computer equivalents, although you
submitted no samples of such formats.
You state that PDA's purpose in publishing and selling these
compilations is to advance knowledge of the patterns of political
contributions and to generate research into these patterns. You
state that much of the information in PDA's database is not
related to individual contributors. You specifically note that a
summary of PDA's compilations by congressional districts shows
that 10 districts comprising 2 percent of the nation's population
accounted for 20 percent of all individual contributions in the
1984 election cycle. You also make similar references to PDA's
compilations by employer. You add that PDA's compilations, such
as these, provide a starting point for further research by
investigative reporters and public interest researchers as well
as by local citizen groups and nonprofit organizations.
Thus, you describe PDA's primary market for these
compilations as public interest and nonprofit groups,
researchers, and journalists. You state, however, that PDA will
sell them to "all who wish to buy them." PDA's charge for its
compilations will vary according to the size of each list at a
price level that will permit PDA to recover its investment costs
but still make these compilations affordable by nonprofit
organizations. You state that PDA will "custom tailor" the
particular compilation requested by a user with the user's name
appearing on each page of the list along with this statement:
THIS REPORT MAY NOT BE SOLD OR USED BY ANY PERSON
FOR THE PURPOSE OF SOLICITING CONTRIBUTIONS OR FOR
ANY COMMERCIAL PURPOSE.
You state that PDA will also "explicitly and forcefully" inform
buyers and users of the Act's restrictions on the sale or use of
contributor information. You add that PDA's Compilations will be
prepared for use in researching and analyzing patterns of
contributions to candidates and will not be usable for
solicitation or other commercial purposes. You state that PDA
intends to provide these compilations as long as individual
contributor data from future election cycles remain in the public
domain.
You also state that PDA plans to use its database for
research in conjunction with nonprofit organizations who will
supply personnel and assist with funding. You add that PDA will
not control the results of such joint research. It will,
instead, make its material available without charge or at a
reduced charge to nonprofit, nonpartisan groups proposing a
serious academic or public education project without imposing any
ideological or policy tests. You add that PDA will not engage in
such joint projects with any candidate or political committee.
You ask whether the Act permits the proposed sale of PDA's
compilations that include individual contributor information from
reports filed with the Commission (without individual contributor
addresses) and accompanied by a warning against the sale or use
of this information for solicitations or commercial purposes.
The Act provides that each political committee must report
the "identification" of each person who makes a contribution to
the committee and whose aggregate contributions to the committee
exceed $200 for the calendar year. 2 U.S.C. SS 434(b)(3)(A). In
the case of an individual, the Act defines "identification" to
mean the name, mailing address, occupation, and name of the
individual's employer. 2 U.S.C. SS 431(13)(A). The Act requires
the Commission to make these reports available for public
inspection and copying "except that any information copied from
such reports or statements may not be sold or used by any person
for the purpose of soliciting contributions or for commercial
purposes, other than using the name and address of any political
committee to solicit contributions from such committee."
2 U.S.C. SS 438(a)(4).
The Commission has previously stated that the principal, if
not sole, purpose of restricting the sale or use of information
copied from reports is to protect individual contributors from
having their names sold or used for commercial purposes. see
Advisory Opinions 1981-38 and 1981-5. PDA has copied the names
and other identifying information of individual contributors from
reports filed with the Commission and has compiled these names
into lists by congressional district and by employer. It now
plans to sell such lists to "all who wish to buy them." Since
PDA is organized as a for-profit corporation, its sales of these
lists are presumably made for commercial purposes. Its statement
that it plans to sell these lists at cost or at a price to
recover its investment costs does not negate this presumption of
commercial purpose.
Commission regulations provide that the "use" of
information, copied or obtained from these reports, in
"newspapers, magazines, books or other similar communications, is
permissible as long as the "principal purpose" of such
communications is not to communicate any contributor information
listed on such reports for the purpose of soliciting
contributions or for other commercial purposes. 11 CFR
104.15(c). The "commercial purpose" prohibition does not
preclude the use of contributor information by newspapers,
magazines, books, or other similar communications such as in news
stories, commentaries, or editorials, although such use may be
incident to the sale of such communications. See 117 Cong. Rec.
SS 30,058 (daily ed. Aug. 5, 1971) (remarks of Sen. Nelson),
reprinted in FEC, Legislative History of the Federal Election
Campaign Act of 1971 at 582 1981). See also, National
Republican Congressional Committee v. Legi-Tech Corp., No.
85-6037 (D.C. Cir. July 15, 1986). PDA's intended use of
contributor information is not merely incident to their sales but
is the primary focus of PDA's activity.
PDA's lists are compilations composed primarily, if not
exclusively, of individual contributor information and
incorporating nearly all of the identification of individual
contributors reported to the Commission (i.e., name, city and zip
code, amount and recipient of contribution, and employer,
omitting only street addresses). The Commission has considered
PDA's statements that its purpose is to further research and
reporting of the patterns of political contributions and its
promise that a warning relating to the Act's sale or use
restriction will be printed on each page of the lists or
packages, but does not view them as determinative of the
principal purpose requirement. The Commission concludes that
lists that compile individual contributor information by
congressional district and by employer will have commercial value
to list owners, managers, brokers, and others, even though street
addresses are omitted. The format and content of PDA's lists
are essentially indistinguishable from those of a list broker
used for soliciting contributions or for commercial purposes.*/
Accordingly, the Commission concludes that PDA's proposed
activity that involves the copying and selling of compilations
comprised primarily of individual contributor names is prohibited
by the Act. PDA's use of the contributor information in its
database for academic research projects may be permissible as
long as this activity does not involve the sale or use of
contributor information for the purpose of soliciting
contributions or for other commercial purposes. See, 11 CFR
104.15(c); Advisory Opinion 1985-16. Since PDA has not described
a specific research project, however, this opinion should not be
relied upon as approving any particular research activity. See
11 CFR 112.1(b) and 112.5.
This response constitutes an advisory opinion concerning
application of the Act, or regulations prescribed by the
Commission, to the specific transaction or activity set forth in
your request. See 2 U.S.C. SS 437f.
*/ The "commercial purpose" provision has been held to prohibit
the copying and selling of contributor information when such
lists incorporate nearly all of the identification of individual
contributors contained in reports filed with the Commission, thus
making such information commercially valuable to list owners,
managers, brokers, or those who use such lists. See, e.g., FEC
v. American International Demographic Services Inc., 629 F.Supp.
317 (E.D. Va. 1986), appeal pending sub nom, Halter v. FEC, No.
86-1560 (4th Cir.). Also, in order to give effect to the
statutory prohibition on the sale or use of this information for
"commercial purposes," the Commission has interpreted this
provision to prohibit the use of contributor information to
update or correct solicitation or mailing lists or otherwise to
enhance their commercial value as well as the sale or use of this
information to solicit contributions. See Advisory Opinion
1985-16.