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FOIA Request - CREW: FEC: Regarding FEC Commissioners' Communications: 3/7/2011 - FEC FOIA

FOIA Request - CREW: FEC: Regarding FEC Commissioners' Communications: 3/7/2011 - FEC FOIA

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Published by CREW
On March 7th, 2011, CREW filed a Freedom of Information Act request with the Federal Election Commission (FEC) seeking records that will shed light on communications three commissioners had with parties outside of the FEC. FEC rules forbid commissioners from engaging in ex parte communications – private communications with parties with business before the commission, such as enforcement actions, audits, advisory opinions, rulemaking proceedings, and lawsuits. Any time a commissioner receives an ex parte communication, he or she is required to deliver it to an FEC ethics officer, or write a statement describing the communication if it is oral.
On March 7th, 2011, CREW filed a Freedom of Information Act request with the Federal Election Commission (FEC) seeking records that will shed light on communications three commissioners had with parties outside of the FEC. FEC rules forbid commissioners from engaging in ex parte communications – private communications with parties with business before the commission, such as enforcement actions, audits, advisory opinions, rulemaking proceedings, and lawsuits. Any time a commissioner receives an ex parte communication, he or she is required to deliver it to an FEC ethics officer, or write a statement describing the communication if it is oral.

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Published by: CREW on Mar 08, 2011
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CREW I

citizens for responsibility and ethics in washington

March 7,2011

By facsimile: 202-219-1043

Federal Election Commission

Attn: FOIA Requester Service Center Room 408

999 E Street, N.W. Washington, D.C. 20463

Re: Freedom of Information Act Request

Dear Sir/Madam:

Citizens for Responsibility and Ethics in Washington ("CREW") makes this request for records, regardless of format, medium, or physical characteristics, and including electronic records and information, audiotapes, videotapes and photographs, pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. §§ 552, et seq., and Federal Election Commission ("FEC") regulations, 11 C.F.R. Part 4.

Specifically, CREW requests all correspondence related to any and all FEC business between Commissioners Matthew S. Peterson, Caroline C. Hunter, or Donald F. McGhan II and any individual or entity outside of the FEC from the date each commissioner took office to the present.

CREW further requests all calendars, agendas, or other recordations of the schedules of Commissioners Peterson, Hunter, and McGhan. This request includes, but is not limited to, any paper or electronic documents that record or otherwise keep track of the commissioners' appointments, meetings, events, and telephone calls, whether they are maintained directly by each commissioner or by someone acting on their behalf.

CREW further requests all written ex parte communications delivered to an FEC ethics officer or Designated Agency Ethics Official ("DAEO") (collectively, "ethics official") by Commissioners Peterson, Hunter, and McGhan or by someone acting on their behalf pursuant to 11 C.F.R. §§ 7.15(c), 201.3(c), 201.4(a). CREW also requests all statements setting forth the substance and circumstances of any oral ex parte communication prepared by any of these commissioners or by someone acting on their behalf and delivered to an ethics official pursuant to 11 C.F.R. §§ 7.15(d), 201.3(c), 201.4(a). CREW limits its requests for written ex parte communications and statements setting forth the substance and circumstances of oral ex parte communications to records in the possession of an ethics official.

Please search for responsive records regardless of format, medium, or physical characteristics. Where possible, please produce records electronically, in PDF format with OCR

1400 Eye Street, uw, Suite 450, Washington, D.C. 20005 I 202.408.5565 phone I 202.588.5020 fax I www.citizensforethics.org

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Federal Election Commission March 7,2011

Page 2

text recognition and on a CD-ROM. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs. Our request includes any letters, emails, facsimiles, telephone messages, voice mail messages, and transcripts, notes, or minutes of any meetings, telephone conversations, or discussions. Our request also includes any attachments to these records.

For any email, please produce metadata and/or headers that show the email address of the sender and any recipient in addition to their display name, the names and email addresses of any "bcc:" recipients, and any data regarding the time and date the email was sent, received, and/or opened.

If it is your position that any portion of the requested records is exempt from disclosure, CREW requests that you provide it with an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1972). As you are aware, a Vaughn index must describe each document claimed as exempt with sufficient specificity "to permit a reasoned judgment as to whether the material is actually exempt under FOIA." Founding Church of Scientology v. Bell, 603 F.2d 945,949 (D.C. Cir. 1979). Moreover, the Vaughn index must "describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of supplying the sought-after information." King v. Us. Dep 't of Justice, 830 F.2d 210, 223-24 (D.C. Cir. 1987) (emphasis added). Further, "the withholding agency must supply' a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply. '" Id. at 224 (citing Mead Data Central v. Us. Dep 't of the Air Force, 566 F.2d 242,251 (D.C. Cir. 1977».

In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. See 5 U.S.c. § 552(b). If it is your position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non-exempt, and how the material is dispersed throughout the document. Mead Data Central, 566 F.2d at 261. Claims of nonsegregability must be made with the same degree of detail as required for claims of exemptions in a Vaughn index. If a request is denied in whole, please state specifically that it is not reasonable to segregate portions of the record for release.

Finally, CREW welcomes the opportunity to discuss with you whether and to what extent this request can be narrowed or modified to better enable the FEC to process it within the FOIA's deadlines. Adam J. Rappaport, the CREW attorney handling this matter, can be reached at (202) 408-5565 or arappapOli({v,citizensforethics.org.

Federal Election Commission March 7, 2011

Page 3

Fee Waiver Request

In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 11 C.F.R. § 4.9, CREW requests a waiver of fees associated with processing this request for records. The subject of this request concerns the operations of the federal government and expenditures, and the disclosures will likely contribute to a better understanding of relevant government procedures by CREW and the general public in a significant way. Moreover, the request is primarily and fundamentally for non-commercial purposes. 5 U.S.C. § 552(a)(4)(A)(iii). See, e.g., McClellan Ecological v. Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987).

Specifically, these records are likely to contribute to greater public awareness of ex parte communications between FEC commissioners and parties with business before the FEC. FEC regulations forbid commissioners from engaging in ex parte communications with parties with business before the FEC, including enforcement actions, applications for public funding, audits, litigation, rulemaking proceedings, and advisory opinions. 11 C.F.R. §§ 7.15, 111.22,201.1- 201.5. Any written ex parte communication received by a commissioner or employee must be delivered to an FEC ethics officer or DAEO and placed in the file of the enforcement case, funding request, audit, litigation case, rulemaking, or advisory opinion, and any commissioners and employees must deliver statements setting forth the substance and circumstances of oral ex parte communications to the ethics official for placement in the appropriate file. 11 C.F.R. §§ 7. 15(c)-(d), 201.3(c), 201.4(a). The requested documents would shed light on the extent of ex parte communications and whether commissioners are complying with their statutory obligation to deliver the communications and prepare and deliver statements about them to ethics officials. The actions to date of Commissioners Peterson, Hunter, and McGhan, especially their refusal in the vast majority of enforcement matters before them to enforce the laws they are charged with enforcing, raise serious questions of whether they are complying with their legal and ethical obligations. The requested documents would assist in answering these questions of public accountability.

CREW is a non-profit corporation, organized under section 501(c)(3) of the Internal Revenue Code. CREW is committed to protecting the public's right to be aware of the activities of government officials and to ensuring the integrity of those officials. CREW uses a combination of research, litigation, and advocacy to advance its mission. The release of information garnered through this request is not in CREW's financial interest. CREW will analyze the information responsive to this request, and will share its analysis with the public, either through memoranda, reports, or press releases. In addition, CREW will disseminate any documents it acquires from this request to the public through its website, www.citizensforethics.org, which also includes links to thousands of pages of documents CREW acquired through its multiple FOIA requests as well as documents related to CREW's litigation and agency complaints, and through www.scribd.com.

Federal Election Commission March 7, 2011

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Under these circumstances, CREW satisfies fully the criteria for a fee waiver.

News Media Fee Waiver Request

CREW also asks that it not be charged search or review fees for this request because CREW qualifies as a "representative of the news media" pursuant to the FOIA and FEC regulation 11 C.F.R. § 4.9(c). In Nat 'I Sec. Archive v. Us. Dep'tofDefense, 880 F.2d 1381, 1386 (D. C. Cir. 1989), the Court of Appeals for the District of Columbia Circuit found the National Security Archive was a representative of the news media under the FOIA, relying on the FOIA's legislative history, which indicates the phrase "representative of the news media" is to be interpreted broadly; "it is critical that the phrase 'representative of the news media' be broadly interpreted if the act is to work as expected .... In fact, any person or organization which regularly publishes or disseminates information to the public ... should qualify for waivers as a 'representative of the news media. '" 132 Congo Rec. S14298 (daily ed. Sept. 30, 1986) (emphasis added), cited in id.

CREW routinely and systematically disseminates information to the public in several ways. First, CREW maintains a frequently visited website, \vww.citizensforethics.org, that received 71,353 page views in February 2011. In addition, CREW posts all of the documents it receives under the FOIA on www.scribd.com. and that site has received 660,525 visits to CREW's documents since April 14,2010.

Second, since May 2007 CREW has published an online newsletter, CREWCuts, that currently has 16,850 subscribers. CREWCuts provides subscribers with regular updates regarding CREW's activities and information the organization has received from government entities. A complete archive of past CREWCuts is available at http://wvlw.citizensforethics.org/newsletter.

Third, CREW publishes a blog, Citizens blogging for responsibility and ethics in Washington, that reports on and analyzes newsworthy developments regarding government ethics and corruption. The blog, located at http://v,rv.lw.citiznesforethics.org/blog, also provides links that direct readers to other news articles and commentary on these issues. CREW's blog had 3,864 page views in February 2011.

Finally, CREW has published numerous reports to educate the public about government ethics and corruption. See Record Chaos, which examines agency compliance with electronic record keeping responsibilities; The Revolving Door, a comprehensive look into the postgovernment activities of24 former members of President Bush's cabinet; and Those Who Dared: 30 Officials Who Stood Up For Our Country. These and all other CREW's reports are available at http://ww'W.citizensforethics.org/reports.

Federal Election Commission March 7,2011

Page 5

Based on these extensive publication activities, CREW qualifies for a fee waiver as a "representative of the news media" under the FOIA and agency regulations.

Conclusion

If you have any questions about this request or foresee any problems in releasing fully the requested records please contact me at (202) 408-5565. Also, if CREW's request for a fee waiver is not granted in full, please contact our office immediately upon making such a determination. Please send the requested records to Adam 1. Rappaport, Citizens for Responsibility and Ethics in Washington, 1400 Eye Street, N.W., Suite 450, Washington, D.C. 20005.

Sincerely,

4Lch/\

Adam 1. Rappaport Senior Counsel

Enclosures

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