5 May 2014, by Ignacio A. Boulin Victoria.
This post was originally published on the Global Anticorruption Blog.
In a recent post, Richard Messick observed—correctly—that although in the last 10-15 years we have seen greater enforcement by so-called “supply-side” countries against bribe-paying firms, “demand-side” governments have not been willing—or able—to go after the bribe-taking public officials. Rick further observes that once a bribe-paying firm has reached a settlement with a supply-side enforcer (say, the U.S. Department of Justice), it should be much easier for the demand-side government to prosecute the corrupt officials on the other side of the transaction. But we see very little of this. Rick attributes the failure to go after the bribe takers to a combination of factors: lack of capacity on the part of demand-side governments, lack of political will, and lack of information about the settlements with supply-side governments.
Those factors are all important, but Rick overlooks one salient fact about these settlements between bribe-paying firms and supply-side governments: often the public settlement documents do not reveal nearly enough information about the bribe transactions to enable the demand-side governments to take action (unless they undertake substantial and costly additional investigation). In the US, for example, the press release announcing the resolution of a Foreign Corrupt Practices Act matter often looks like this: no names regarding who received the money, no precise time concerning when, no specific department within the agency that received the money. Even if the U.S. government has provided more detailed information about the transactions to demand-side governments, the lack of public disclosure means that if the demand-side government takes no action, local activists lack the ability to use “naming and shaming” techniques effectively.
To go after the bribe-takers effectively–and to put pressure on demand-side governments to do so–we need the names, the dates, and the details of the corrupt transactions. How do we get them? I propose a novel (and admittedly aggressive) use of freedom of information laws, like the U.S. Freedom of Information Act (FOIA). Here’s how it would work:
FOIA is intended to secure open government and an informed citizenry by creating a public right to public access to the information held by federal executive branch agencies–including the Department of Justice and the Securities & Exchange Commission, which are responsible for enforcing the FCPA. If the DOJ or SEC have reached a settlement with a firm that violated the FCPA, then it is likely that those agencies possess documents detailing the bribe transactions, even if those documents have not been made public. Thus, in principle, a simple request for the names of foreign public officials that have received a bribe in a resolved FCPA case should be considered information that the U.S. government is obligated to disclose under FOIA.
The most salient objection to this proposal is FOIA’s exemption for “records or information compiled for law enforcement purposes[.]” However, that exemption specifically states that it only applies to the extent that disclosure of law enforcement information:
- could reasonably be expected to interfere with enforcement proceedings,
- would deprive a person of a right to a fair trial or an impartial adjudication,
- could reasonably be expected to constitute an unwarranted invasion of personal privacy,
- could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source,
- would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or
- could reasonably be expected to endanger the life or physical safety of any individual.
Taking into account that FOIA exemptions are to be “given a narrow compass”, I would argue that none of these conditions applies to a request for information about a foreign official’s involvement in bribery. Subsections (A) would not apply, particularly because U.S. enforcement proceedings would already have concluded, and it’s sensible to read this provision as applying only to U.S. enforcement in any event. Subsections (B) and (F) might apply in extreme cases, so perhaps the U.S. government could refuse to disclose officials implicated in bribery schemes if those officials might subsequently be subjected to unfair proceedings or physical danger, but in most cases this will not be an issue. Subsection (C) would likely not apply, because even though disclosure of participation in a criminal scheme might be an “invasion of privacy,” it is certainly not “unwarranted,” given that the officials involved have committed serious crimes. Subsection (D) would apply only if the corrupt foreign official were the confidential source of the government’s information about the FCPA violation (an exceedingly unlikely occurrence). And subsection (E) seems irrelevant to this sort of request.
So, it seems that there is at least a colorable legal argument that requesting the names of foreign officials, who have not committed any crime under U.S. law, would not interfere with the purpose of the FOIA exemption for law enforcement information. If the request is carefully tailored in order to avoid any link with this exemption, or any other FOIA exemption, there is a good chance it will succeed. Success, of course, is not guaranteed. This aggressive use of FOIA implicates foreign relations, which is one of those subject areas in which judges accord significant deference to the executive branch. However, if it works, it would substantially improve the prospects for prosecuting bribe-taking public officials in many countries.
About the Author
Ignacio A. Boulin Victoria, Professor of Public Law at Universidad Nacional de Cuyo (Argentina) and co-founder of the human rights group CLADH, contributes the following guest post, proposing a new legal strategy for acquiring information about bribe-taking public officials.