President Barack Obama ran a technology savvy presidential campaign that promised a more ethical and transparent government.
The Office of Government Ethics, a small and little-known executive branch agency that’s responsible for collecting and disclosing executive branch financial disclosure forms and ethics agreements, would be a logical place to start bringing those ideals to life.
Since the Obama administration came to Washington, the OGE, for the first time ever, has posted on its Web site a regularly updated list of administration officials who have completed their financial disclosure forms. These forms catalog assets, past employment, board services, property, and debts that could potentially pose conflicts of interest.
But as far as posting the documents themselves, well, that’s another mater.
In fact, says agency general counsel Don Fox, OGE is forbidden by law from making the completed documents available for download on the site. That’s because the Ethics In Government Act, which created the office as a component of the Office of Personnel Management (it’s since become independent), not only requires that documents only be released upon receipt of a written request that certifies the information won’t be used for commercial purposes, but also that the Office keep a record of all people to whom it releases the documents. He says a download-on-demand system would violate both requirements.
“The Act was written in 1978. The Web might have existed in the mind of a few scientists, but probably for nobody else,” says Fox.
So ProPublica, the not yet year-old privately-supported non-profit investigative reporting shop, has taken it upon itself to plug the gap by requesting, collecting, and posting the documents for all to see.
It’s a somewhat laborious process. The OGE makes a standard request form available for download as a PDF. After filling it out, and attesting that there are no plans to make commercial use of the documents, the requester must mail or fax the form back to OGE. Each form can be used to request the financial disclosure forms and related documents of only six officials at a single time. The OGE will make paper copies of the documents, which can be mailed or picked up in person at the agency’s Washington office at 1201 New York Avenue.
“If the goal is for your average citizen to peruse the ethics agreement of their government officials, it’s not the easiest process,” says Olga Pierce, the ProPublica intern who wrangled the documents. “It’s four or five steps and I’m not sure everyone will get there.”
Officially, the OGE charges three cents a page for photocopying, but the fee is waived if the total is less than $10.00 worth of documents. In practice, few pay anything.
But not ProPublica. According to Pierce, their bill for the first round of about 700 pages of documents totaled something like $21.76. Then they had to prepare the paper documents for the Web. (“Our poor scanner,” quips Pierce.)
ProPublica has asked its readers to point any interesting nuggets hidden in the documents. That hasn’t produced too much of interest so far—just one post noting that Secretary of the Interior Ken Salazar co-signed his daughter’s college loans. But they say that finding immediate stories wasn’t the point.
“In the past, we could have used them for a story and then set them aside,” says ProPublica’s Amanda Michel, the former director of The Huffington Post’s OffTheBus project who now manages ProPublica’s distributed reporting efforts. “We put out these documents, first and foremost, as a part of our mission, to make these documents available for the press and the public.”
“You know that these documents will be helpful to someone, but we don’t know who would need it or when,” says Pierce. “At ProPublica, we’ve got sort of a weird hybrid between doing our own reporting and trying to be a reporting resource for other people.”
So far, ProPublica has made 179 SF-278 forms available, as a first step toward their plan to make requests and post the documents of all Obama appointees.
The SF-278 form is the standard executive branch financial disclosure document, which, once filled out, forms the basis for a consultation between the appointee, the OGE, and agency based ethics officers—one that will result in individualized ethics agreements.
These ethics agreements, or ethics letters, spell out each appointee’s specific obligations to avoid conflicts of interest, and the steps that each will take to do so.
“It’s really difficult to think of an example of a Senate confirmed official who would not need some kind of ethics agreement,” says Fox.
But so far, ProPublica has had little luck getting hold of the ethics letters, netting only a handful from its requests to OGE.
The letters are not necessarily filed before the appointee starts work, which could account for some of the absences. But Fox, who said he wasn’t aware of the details of ProPublica’s requests, suggested that another barrier might be keeping the ethics letters inside OGE for the moment: the delay of processing the forms under the provisions of the Freedom of Information Act, which he described as “an entirely different access scheme.”
FOIA is relevant because ethics letters were developed after the 1978 Ethics Act, and therefore aren’t subject to the same access provisions as the 278 disclosure forms. In fact, the OGE form that must be submitted to request a completed 278 form makes no mention that ethics letters may be also available; while there’s a space on the form where an ethics letter request can be written in, most requesters would never know it’s an option.
If a requester does ask for an ethics letter, the OGE will honor it once the letter has been processed in compliance with FOIA’s provisions exempting certain personal and business information from disclosure. The office has been training agency ethics officials who assist appointees with the preparation of the letters to omit information that might trip up a FOIA review or release.
“In the interest of openness and transparency, we are taking pains to write those agreements in such a way that they are fully releasable without redaction,” says Fox. “We want to do that for two reasons. One is the whole redaction process takes time… And two, someone who gets a document and sees redactions, except where its obvious what’s missing like children’s names, they might wonder what’s missing.”
“We literally keep a book of these ethics agreements that have already been requested and scrubbed. So the third, fourth, or twentieth time when its requested with the 278, it can go out the same day,” says Fox.
While the provision is routinely ignored across government, since 1997 the Freedom of Information Act has required agencies to make any document it releases under FOIA available in an online reading room if they think it’s likely to be requested a second time. OGE does not do so with the ethics letters.
“I’m just not sure how much sense it would make,” says Fox. “If you’re looking at the ethics agreement without the 278 that preceded it, it’s like looking at the epilogue without reading the book.”
Fox says it would make “a lot of sense” to have the ethics agreements available electronically if the underlying disclosure forms could also be made more readily available online.
And though an anonymous download system is precluded by the 1978 Act, the office does have plans to make the disclosure forms more accessible to Internet users, by establishing an online request form that would meet the law’s requirements. The goal is to for a user to be able to submit a Web request and have the forms e-mailed back the same day, or perhaps nearly instantaneously.
OGE isn’t willing to put a timeline on the change, but Fox says that the agency wants “to get it done as quickly as possible.”
In the meantime, there’s always ProPublica.
Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.