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.