In 2008, global technology giant Siemens Aktiengesellschaft (“Siemens”) pleaded guilty to violations of the books and records provision of the Foreign Corrupt Practices Act (“FCPA”). Siemens paid approximately $450 million in fines for its alleged violations and another $350 million to settle a civil suit brought by the US Securities and Exchange Commission. In addition, as part of the plea agreement, Siemens agreed to hire Monitor to evaluate and report on its FCPA compliance efforts to the US Department of Justice. The Monitor submitted numerous work plans and annual reports to the DOJ over the next several years.
In 2013, 100Reporters LLC (“100Reporters”), a non-profit organization focused on investigative journalism, submitted Freedom of Information Act (“FOIA”) requests seeking the Monitor’s reports and related documents. The DOJ denied the requests and the administrative appeal. Accordingly, 100Reporters brought suit in the United States District Court for the District of Columbia. The DOJ subsequently produced some redacted documents but continued to withhold other documents based on certain Exemptions, including privileged and confidential information, attorney-client and attorney work product (“deliberative process”) privileges, personal privacy, and a lack of segregability due to the intertwined nature of the public and protected information.
In a recent 73-page opinion, the D.C. District Court denied, in part, motions for summary judgment filed by the DOJ, Siemens, and the Monitor and requested in camera review of representative documents. The Court will now determine what aspects of the Siemens’ post-plea FCPA compliance program should be available for public consumption. If the Court determines that substantive portions of Siemens’ FCPA compliance efforts should be produced under FOIA, it could offer an unprecedented look inside the FCPA program of a major multi-national corporation. Further, and while not suggesting that Siemens has anything to hide, the public airing of post-plea compliance efforts could cause a stir if the Monitor’s are less robust than the public might anticipate. Nevertheless, the mere potential that one’s FCPA compliance efforts could be in the public domain should give companies large and small pause and they should consider whether their policies and training would withstand the trial by public opinion.