DOJ Releases FARA Determination Letters

The Department of Justice’s FARA Unit has publicly posted, for the first time, a set of FARA determination letters.  A determination letter is the Unit’s formal opinion on whether an entity under scrutiny by the Department is required to register under FARA.  As far as we can tell, the release was done quietly, without public announcement.  At some point over the past couple of days, a new page appeared on the FARA Unit’s website containing more than a dozen determination letters.  According to the new webpage, the Unit released determination letters “from 2017 to the present that resulted in an entity or individual registering under FARA.”

The posted determination letters have several notable attributes:

  • The letters are largely unredacted. The names of the parties and the related foreign principals are disclosed in the posted letters, as are the details of the activities and the Unit’s comments on the activities.  Presumably, the Department concluded that it could release the full letters because the recipients eventually registered for the activities discussed in the letters.  (There are nonetheless some relatively small redactions in some letters.)
  • The lack of redactions in these letters is very useful for understanding the Unit’s analysis. In contrast, when the Unit releases advisory opinions, as it began doing two years ago, it redacts identifying details.  Although the released advisory opinions are useful, practitioners have often found that the redactions make it harder discern the underlying legal principles that the Unit applies in the advisory opinions.
  • As noted above, the new webpage includes only determination letters that resulted in a FARA registration. The Department also sometimes issues negative determination letters advising that an entity does not have an obligation to register.  Negative determination letters raise different privacy concerns than the letters released this week, which we expect the Unit would consider carefully before releasing any negative determination letters.
  • The posting of these determination letters appears connected with a set of letters that the Unit released in 2019 in response to a law firm’s FOIA request. For example, some of the letters posted this week contain the same FOIA redactions as the set made available earlier to the law firm.  Notably, however, the set released this week contains additional determination letters, including some more recent letters, suggesting that the Unit intends to continue releasing new letters regardless of any particular FOIA request.
  • In general, the determination letters are more detailed and provide more legal analysis than advisory opinions. The continuing release of determination letters therefore has the potential to be useful to companies and individuals seeking to comply with FARA, along with the lawyers advising them.

Over the past few years, the FARA Unit has made several new efforts to increase transparency regarding its enforcement of the statue.  These efforts include publicly discussing its enforcement priorities, releasing redacted advisory opinions, increasing consistency in filings through a new electronic filing system, and now releasing determination letters.  These are welcome developments, and we encourage the Unit to continue to promote additional transparency in FARA enforcement.