Judge rules DOJ will have to release information about nominations for corporate compliance monitorships

The Reporters Committee for Freedom of the Press secured an important victory last Thursday in Tokar v. Department of Justice currently pending before the U.S. District Court for the District of Columbia. Judge Rudolph Contreras held that the U.S. Department of Justice must provide Dylan Tokar, a reporter with the trade publication Just Anti-Corruption, the names of individuals nominated to monitor corporations’ compliance with the Foreign Corrupt Practices Act (FCPA), along with records related to the selection process.

Reporters Committee attorneys filed suit on behalf of Tokar in December 2016 after DOJ refused to provide records in response to a Freedom of Information (FOIA) request seeking records and information related to DOJ’s selection process for corporate compliance monitors in FCPA cases.

These monitors are hired at the expense of corporations who face DOJ scrutiny and are appointed by DOJ to oversee many aspects of the corporation’s foreign activities for a number of years. As a result, these monitorships are lucrative positions for these lawyers and the law firms they work for.

The selection process for corporate monitors has created significant public controversy. In 2008, DOJ launched an internal inquiry into its selection process after then-U.S. Attorney Chris Christie approved a contract reportedly worth between $28 million and $52 million for his former boss (and former U.S. Attorney General) John Ashcroft to serve as the compliance monitor for a corporation that had settled with the DOJ.

Though the guidelines ultimately implemented by the DOJ lay out several principles designed to safeguard the monitor selection process, scholars and journalists have continued to question the lack of transparency around how monitors are selected.

Tokar’s FOIA request seeks information that would show whether DOJ has followed the guidelines it implemented in 2008 to prevent potential or actual conflicts of interest in its appointment of corporate monitors.

Six weeks after we filed the lawsuit, DOJ provided Tokar with a chart that contained the redacted names of monitor candidates who were nominated but not selected. DOJ claimed the redactions were justified under exemptions for information that would constitute an invasion of privacy.

In his decision, Judge Contreras held that the DOJ had improperly applied these redactions to the information Tokar requested. Specifically, he held that while the corporate monitor candidates have some right to privacy, the public’s interest in understanding how the corporate monitor selection process works outweighs that privacy interest.

The case is one of many that the Reporters Committee is involved in to increase public access to government records. The full opinion is available here.