Federal Election Commission Main Page
October 28, 1994
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1994-32
Ms. Kellie Gasink
3150 Rochambeau Ave.
#41D
Bronx, NY 10467
Dear Ms. Gasink:
This refers to your letter of September 8, 1994, which
requests an advisory opinion concerning the application of
the Federal Election Campaign Act of 1971, as amended ("the
Act"), to proposed communications you wish to have with a
newspaper reporter.
You state that you have in your possession a copy of a
letter, dated June 10, 1993, which you wrote to the Manhattan
District Attorney. This letter contains allegations you made
against a past Presidential campaign with which you worked as
a volunteer. You state that the letter was made public and
its contents were the subject of a New York City press story.
Subsequent to this, you filed a complaint with the Federal
Election Commission ("the Commission") repeating the
allegations made in the June 1993 letter. You state that
this letter formed part of the complaint.
You now wish to tell a newspaper reporter that you have
filed a complaint with the Commission. Further, you want to
discuss with the reporter matters relating to the substance
of the June 1993 letter and the complaint. These matters
include issues such as your volunteer work for the campaign
and your complaint's allegations of fraud by the campaign.
You ask whether you can take these actions without violating
the Federal election laws that, in your words, "prohibit the
public disclosure of an investigation conducted by the
Commission."
The Act provides that it is unlawful for any person to
make public any notification or investigation made under
2 U.S.C. §437g(a), without the written consent of the person
receiving such notification or of the person with respect to
whom such investigation is made. 2 U.S.C. §437g(a)(12)(A).
Pursuant to this provision, the Commission promulgated
11 CFR 111.21 which provides:
... no complaint filed with the Commission, nor any
notification sent by the Commission, nor any
investigation conducted by the Commission, nor any
findings made by the Commission shall be made public by
the Commission or by any person or entity without the
written consent of the respondent with respect to whom
the complaint was filed, the notification sent, the
investigation conducted, or the finding made.
While the application of the cited confidentiality rules
has not been addressed in previous advisory opinions, prior
enforcement cases have examined and interpreted the
confidentiality provisions. See, for example, Matters Under
Review ("MUR") 3573, 3170, 3169, 3168, 1244 and 298. These
cases have interpreted 2 U.S.C. §437g(a)(12)(A) and 11 CFR
111.21 as not applicable to situations involving the
complainant's conduct leading to the publication or
discussion of information or allegations contained in a
complaint.1/ Whether the disclosure took place before or
after the filing of the complaint was not seen as relevant.
In these situations, the Commission found no reason to
believe that a violation of the Act or Commission regulations
had been committed by the complainant.
The first enforcement case dealing with section 111.21,
MUR 1244, examined the apparent differences between the
language of the statute and the language of the regulation
which explicitly refers to prohibiting the publication of a
complaint. MUR 1244 considered a complainant's actions which
had led to the publication in a newspaper of the details of
his previously filed complaint. The Commission in that
matter noted that the language of section 111.21 must be read
in conjunction with section 437g(a)(12) and "should prohibit
complainants from disclosing information about their
complaints only if such disclosure also amounts to disclosure
of a Commission notification or investigation." See MUR
1244. As support for this reasoning, language from the
explanation and justification of section 111.21 was cited
which states that the regulation "sets forth the
confidentiality requirements of the Act." See Id. and 45
Fed. Reg. 15089 (March 7, 1980). The Commission noted that
there would be difficulty in enforcing the regulation if read
to extend beyond the wording of the statute and inconsistent
with prior cases enforcing the statute.
More recent cases have confirmed and continued this
interpretation. Relevant to your situation is the
Commission's resolution of allegations made in a group of
combined enforcement actions, MURs 3170, 3169, 3168. These
cases were generated by complaints filed by persons who were
the respondents in another enforcement action which had
commenced earlier. These respondents presented evidence that
the complainants in the earlier case had disclosed their
complaint to various radio and television broadcasters and
had further caused the complaint to become the subject of
certain newspaper articles. The Commission found no reason
to believe that these actions violated the Act or Commission
regulations.2/
In response to your request, the Commission concludes
that your proposed discussion with the press regarding the
filing of your complaint, the allegations contained in the
complaint, and any information contained in the complaint or
related to the subject matter of the complaint, would not
violate the confidentiality provisions of the Act or
Commission regulations. You may also discuss any information
contained in, or relating to, the June 1993 letter which
formed the basis for the complaint. These actions are
indistinguishable from the situations in the prior
enforcement cases. However, you may not discuss or disclose
any information relating to any notification of findings by
the Commission or any action taken by the Commission in an
investigation until the case is closed or the respondent
waives the right to confidentiality. Disclosure of these
phases of the enforcement process is prohibited by 2 U.S.C.
§437g(a)(12) and 11 CFR 111.21.3/
This response constitutes an advisory opinion concerning
application of the Act, or regulations prescribed by the Com-
mission, to the specific transaction or activity set forth in
your request. See 2 U.S.C. §437f.
For the Commission,
(signed)
Trevor Potter
Chairman
1/ MURs 3573, 3170, 3169, 3168 and 1244 dealt with alleged
violations of both 2 U.S.C. §437g(a)(12)(A) and 11 CFR
111.21. The consideration of MUR 298 took place prior to the
promulgation of section 111.21; therefore, violations of
section 437g(a) were the only issue. See footnote 2
below.
2/ MUR 3573 dealt with allegations of a similar situation
with the same resolution by the Commission.
By contrast, in MUR 298 the Commission referred to the
Department of Justice a case involving a situation of persons
unknown violating section 437g(a) by providing information to
a newspaper for a published article revealing a Commission
decision to issue a subpoena in an open case. The violation
was found because these actions involved disclosure of a
Commission notification which disclosure was made while the
investigation of the complaint was in progress.
3/ For an example of the type of disclosure that would
violate the confidentiality provisions of the Act, see the
discussion of MUR 298 in footnote two above.
The Commission is currently engaged in a rulemaking to
offer further guidance on the application of the
confidentiality provisions of the Act. See 58 Fed. Reg.
36777 (July 30, 1993).