New transparency practice turns confidentiality on its head.
Michel Marcoux is a partner in Bruder, Gentile & Marcoux, LLP (http://www.brudergentile.com), a law firm in Washington, D.C.
The Federal Energy Regulatory Commission (FERC) now authorizes the director of its Office of Enforcement (OE) to cause the names of subjects under investigation, and summaries of their alleged wrongful conduct, to be noticed to the public earlier than had been the practice.1 Moreover, such public disclosure occurs before either FERC’s own, independent review of staff’s prosecutorial recommendations, or any findings of wrongdoing by FERC itself.2 Where FERC’s traditional approach has treated staff preliminary findings as confidential, presumably in part serving interests in due process and a presumption of innocence, its new, make-public-earlier approach increases risks of reputational and other harms for subjects of investigations. Targeted subjects now must interact with staff very carefully for purposes of initial staff reviews of information, preliminary examinations of identified activities, investigations, fact discovery and gathering through data and document requests, interrogatories, interviews, depositions, and preliminary findings letters.