Public Release of Staff Recusal Notices
Washington, D.C. 20554
October 28, 2011
Gigi B. Sohn
1818 N Street, N.W.
Washington, D.C. 20036
Re: Public Release of Staff Recusal Notices
Dear Ms. Sohn:
This responds to your letter of May 19, 2011, to Chairman Genachowski, in which you
urge "a requirement that anyone negotiating employment with an organization doing business
with the Commission [must] file a letter, available for public viewing, with the recusal
information."1 You assert that the Commission formerly had such a policy, and that readopting
it would promote transparency and alleviate "agency capture." As you note, there is no current
requirement that a Commission staff member submit a written recusal statement (also referred to
as a "statement of disqualification").
In response to your letter, the Office of General Counsel (OGC) reviewed the
Commission's policy both with respect to whether Commission staff should be required to
submit written recusal statements and whether any such statements should be made available to
the public. As explained below, this review has led us to conclude that recusal statements
voluntarily submitted by current Commission staff are, and should be, confidential and exempt
from release under the Freedom of Information Act (FOIA). Because recusal statements are now
voluntary under government-wide ethics rules, release of such statements could deter their
submission--a negative effect that generally would outweigh the benefits of disclosure. In the
case of requests for access to recusal statements covering entities with which a former FCC
employee actually accepted employment, however, the balance tips in favor of disclosure and
access will be granted.
The Former Requirement To File a Written Recusal StatementIn 1979, the Commission amended its rules to add 47 C.F.R. 19.735-204(e), which
required Commission employees engaged in negotiations with a prospective employer to file a
statement of disqualification and non-participation with respect to any matters that could affect
the interests of the prospective employer.2 In 1991, however, the Office of Government Ethics
1 See Letter from Gigi B. Sohn to Julius Genachowski, Chairman (May 19, 2011).
2 See Conduct of Commission Employees, 46 RR 2d 33 (1979).
Ms. Gigi B. Sohn
October 28, 2011
(OGE) adopted government-wide ethics rules applicable to Commission employees.3 Under the
relevant OGE rule, 5 C.F.R. 2635.604(b), an employee is not required to file a written
disqualification statement when negotiating employment, but may elect to create a written
record. OGE specifically found that "a possible regulatory requirement for notice and written
disqualification statements was rejected as unnecessarily burdensome."4
In 1996, the Commission repealed its Rule 19.735-204(e).5 The Commission determined
that it was not appropriate to maintain a recusal policy contrary to the government-wide policy
established by OGE.6
Past Practice Concerning Confidentiality of Recusal StatementsAfter it adopted 47 C.F.R. 19.735-204(e) and required statements of disqualification,
the Commission held in Citizens Communications Center7 that these statements were exempt
from disclosure under FOIA Exemption 6. Exemption 6 applies to "personnel and medical files
and similar files the disclosure of which would constitute a clearly unwarranted invasion of
personal privacy."8 The Commission reasoned that employees have a strong interest in
protecting the privacy of their job search and that the public did not have a strong interest in
disclosure.9 The Commission gave great weight to employees' privacy interests because
disclosure of the job-search information might create difficulties with coworkers, interfere with
negotiations with prospective employers, and give rise to embarrassing speculation as to why an
employee might be considering new employment or ultimately did not leave the Commission.10
It nevertheless appears that even after Citizens, Commission staff maintained a file of
employee recusal statements that was available to the public for in-person inspection.
Furthermore, after the Commission eliminated the requirement of preparing recusal statements in
1996, OGC released under the FOIA an e-mail by a former Commission legal advisor who
indicated that she had been offered, but would not accept, outside employment with a particular
regulated communications company.11 OGC also recently released recusal information relating
to former Commissioner Baker's acceptance of an offer of employment with a regulated
3 See Standards of Ethical Conduct for Employees of the Executive Branch, 56 Fed. Reg. 3378 (1991).
4 See id. at 33784-85.
5 See Adoption of Supplemental Standards of Ethical Conduct for Employees of the Federal Communications
Commission and Revision of the Commission's Employee Responsibilities and Conduct Regulations, 11 FCC Rcd
15438, 15441 12 (1996).
6 See id. (indicating that repealed provisions were superseded by executive branch-wide provisions).
7 85 FCC 2d 191 (1981).
8 5 U.S.C. 552(b)(6).
9 See 85 FCC 2d at 193-94 5-6.
10 Id. at 193-94 5.
11 See Letter from Joel Kaufman to Mr. Robert Herring, FOIA No. 2011-383 (June 28, 2011).
Ms. Gigi B. Sohn
October 28, 2011
communications company, after Commissioner Baker had herself made public the fact of her
Clarification of PolicyCommission policy in this area, as reflected in the Citizens decision, is based on the
principles embodied in FOIA Exemption 6, which balance the strength of individual privacy
interests in nondisclosure of the requested information against the public's interest in disclosure.
In Citizens, the Commission held that there was only a slight public interest in disclosure of
individual recusal statements, because the interests of the public were adequately served by the
FCC's consideration of the recusal statements as an internal administrative matter.13 In
Washington Post Co. v. U.S. Dep't of Health and Human Services,14 however, the D.C. Circuit
subsequently considered whether financial disclosure forms for agency consultants were
protected by Exemption 6. The court held that the FOIA was intended to give the public the
ability to decide for itself whether conflicts of interest exist.15
Taking both Citizens and Washington Post into account, we conclude that the public
interest in disclosing the recusal statements of current employees does not warrant their release.
Here, the public interest in disclosure is relatively low because the employee has stated that he or
she will not participate in the particular matter. The public may have a substantial interest in
whether employees who do participate in a matter have a potential conflict of interest, but there
is a lesser public interest in knowing whether employees who do not participate in a matter have
a potential conflict of interest. The employee's own declaration of non-participation (which in
general we will assume is implemented through actual non-participation) distinguishes recusal
statements from the financial disclosure forms that Washington Post required to be disclosed.
As noted in Citizens, disclosure of the recusal statements of current FCC employees
would likely complicate negotiations with potential employers and raise questions about why
employees did not leave the Commission. Further, in light of OGE's rejection of mandatory
recusal statements, releasing the recusal statements of FCC employees would likely discourage
Commission staff from voluntarily creating a record of recusal, a result that ought to be avoided.
At the same time, the rationale of Citizens, particularly when viewed in light of
subsequent judicial precedent, suggests that its reliance on Exemption 6 should apply differently
to recusal statements of former Commission employees. Once an employee leaves the FCC to
12 See Letter from Joel Kaufman to Mr. Jonathan Make, FOIA No. 2011-362 (June 27, 2011).
13 See 85 FCC 2d at 194 6.
14 690 F.2d 252 (D.C. Cir. 1982), rev'd on other grounds, 795 F.2d 205 (D.C. Cir. 1986). That case held that
Exemption 6 did not apply to financial disclosure forms for consultants hired by NIH. The court found that the
consultants had a relatively weak privacy interest in the limited information contained in the financial disclosure
forms: their past employment history and a listing of their financial interests (without dollar amounts). Id. at 261-
15 Id. at 264-65.
Ms. Gigi B. Sohn
October 28, 2011
take a new job with a particular employer, the new employment becomes known and the
employee no longer has a strong privacy interest in the fact that he or she was exploring
employment with that particular entity. In the case of actual subsequent employment, there also
may be a heightened public interest in knowing when the former employee began considering the
new job. In the event an employee submitted multiple recusal statements concerning
negotiations with multiple prospective employers, this reasoning would apply only to the recusal
statement covering the entity with which the employee actually accepted employment. Other
recusal statements would be withheld consistent with Citizens.
I hope you find this responsive to your concerns.
Austin C. Schlick