Federal Election Commission Main Page
February 10, 1995
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1995-1
Arthur Block, Esquire
72 Spring Street
Suite 1201
New York, NY 10012
Dear Mr. Block:
This refers to your letter of December 28, 1994, which
requests an advisory opinion concerning the application of
the Federal Election Campaign Act of 1971, as amended ("the
Act"), to proposed disclosures you wish to make regarding
your response to a complaint filed with the Commission.
You state that you are the counsel of record for the
respondents in Matter Under Review ("MUR") 3938 which arose
from a complaint filed with the Commission by Ms. Kellie
Gasink.1/ Following the filing of her complaint, Ms. Gasink
requested and received a Commission advisory opinion
regarding her proposal to communicate to a newspaper reporter
information from the complaint and to disclose further facts
regarding the allegations contained in the complaint. See
Advisory Opinion 1994-32.
In view of the issuance of this opinion, the respondents
in MUR 3938, and you as their counsel, wish to disclose to
third parties, and/or the public, all or part of the
responses that respondents have filed with the Commission in
opposition to the complaint in MUR 3938. You note that the
Commission has made a decision "to hold MUR 3938 `in
abeyance' for an unspecified time." Assuming these
disclosures can be made, you further ask whether they may be
made without the Commission deeming them as a consent by the
respondents to public disclosure of other confidential
materials in MUR 3938.
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).2/
Pursuant to this provision, the Commission promulgated
regulations, 11 CFR 111.21(a), which provide:
... 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.
Advisory Opinion 1994-32 concluded that a complainant
who communicates with the press regarding the complaint filed
with the Commission would not violate the confidentiality
provisions of the Act, provided such person did not:
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.
Advisory Opinion 1994-32.3/
The Commission notes that it has not made any findings
of "reason to believe" or "probable cause to believe" that
violations of the Act may have been committed in MUR 3938.
2 U.S.C. §437g(a)(2) and (2)(4). Therefore, a Commission
investigation has not started. Furthermore, you propose only
to release your response to the complaint filed by Ms.
Gasink. Under these circumstances, the Commission concludes
that the confidentiality provisions as set forth in 2 U.S.C.
§437g(a)(12) and 11 CFR 111.21 would not apply to your
release of all or any portion of the responses filed by you
on behalf of your clients. Since the confidentiality
provisions do not apply, your described actions would not
represent any waiver of confidentiality as to other documents
or materials which are presently in, or may become a part of,
the Commission file in MUR 3938.4/ The Commission notes,
however, that this conclusion relates only to actions by you
or your clients regarding the release of the information
contained in your response to the complaint. These
conclusions do not affect the rights of the Commission to
withhold information from public disclosure pursuant to its
investigatory or other privileges. See 11 CFR
4.5(a)(1)--(a)(7) and 4.5(a)(7)(i)--(vi).
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.
Sincerely,
(signed)
Danny L. McDonald
Chairman
Enclosure: (AO 1994-32)
1/ According to the designations of counsel you filed with
the Commission, you represent Fred Newman, Lenora B. Fulani,
Rachel Massad, Francine Miller and the Lenora B. Fulani for
President Committee.
2/ A recent case, Lind v. Grimmer, 30 F.3d 1115 (9th Cir.
1994), cert. denied, sub nom. Wang v. Lind, No. 94-897 (U.S.
Jan. 17, 1995), has examined the application of a
confidentiality rule in Hawaii's election law. The case
concerned an attempt of the Hawaii Campaign Spending
Commission to prohibit a complainant from releasing
information contained in a complaint he had filed with the
state commission. The court first found that the state
commission's application of the statute to the complainant
violated his First Amendment rights. The court also
concluded that the statute itself was overbroad and
unconstitutional. While 2 U.S.C. §437g(a)(12) is narrower in
scope than the confidentiality statute struck down in Lind,
the case nonetheless illustrates the First Amendment
considerations applicable when interpreting the scope of
confidentiality in the context of election law enforcement
procedures.
3/ This conclusion reflects long standing Commission policy
as found in past enforcement matters. See, for example, MURs
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.
4/ 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).