OGE's Guide to FOIA & Public Records describes the public information and official records of the U.S. Office of Government Ethics (OGE). It also explains how you can seek access to various agency records, or copies of them. This guidance has been updated through October 10, 2008 and has been prepared in accordance with the Electronic Freedom of Information Act (FOIA) Amendments of 1996. More specific information on FOIA exemptions, fees and other aspects of our FOIA program are contained in OGE's FOIA and Ethics Act fee regulations, codified at 5 C.F.R. part 2604.
Obtaining Records Through FOIA Requests
The Freedom of Information Act, 5 U.S.C. § 552, allows persons to request copies of records not normally prepared for public distribution or otherwise publicly available. The FOIA applies to existing records only and does not require agencies to create new records to comply with a request. It also does not require agencies to collect information they do not have or to do research or analyze data for a requester. Moreover, FOIA requests must be specific enough to permit an OGE employee who is familiar with the subject matter to locate records in a reasonable period of time.
Under the FOIA, certain records may be withheld in whole or in part from the requester if they fall within one of nine FOIA exemptions or certain exclusions. In some cases, OGE is able to provide copies of all of the records requested. However, in other instances, a portion or all of the information requested is exempt from disclosure and must be withheld under the FOIA. The six FOIA exemptions OGE most often relies upon for withholding information are:
- Exemption 2: Protects internal personnel and administrative materials.
- Exemption 3: Protects information that is prohibited from disclosure by other laws, such as the limitation on access to SF 278 report information except pursuant to an appropriate Ethics Act request (see section 105 of the Ethics Act) and the confidentiality provision for OGE Form 450 Confidential Financial Disclosure Reports (see section 107 of the Ethics Act).
- Exemption 4: Protects trade secrets and privileged or confidential commercial or financial information.
- Exemption 5: Protects certain interagency and intra-agency pre-decisional deliberative communications.
- Exemption 6: Protects information about individuals when disclosure would constitute a clearly unwarranted invasion of personal privacy.
- Exemption 7: Protects records or information compiled for law enforcement purposes, if certain interests would be harmed by release, including when disclosure could reasonably be expected to interfere with enforcement proceedings or constitute an unwarranted invasion of personal privacy.
In the event that OGE relies on one or more FOIA exemptions to deny a requester access to records, the response letter will so inform the requester. The letter will also notify the requester of the right to administratively appeal the initial denial determination to the OGE Program Counsel.
In limited circumstances, publicly acknowledging the existence of a record, in and of itself, could cause harm to law enforcement or national security interests. In order to avoid this type of problem, the FOIA provides special protection for three categories of particularly sensitive law enforcement records. If these records are requested, OGE may respond that there are no records responsive to the request. However, these exclusions do not broaden the authority of OGE to withhold documents; the exclusions are only applicable to information that is otherwise exempt from disclosure. The three statutory exclusions are:
- (c)(1) Exclusion: Authorizes federal law enforcement agencies, under specified circumstances, to shield the very existence of records of ongoing investigations or proceedings by excluding them entirely from the FOIA's reach.
- (c)(2) Exclusion: Provides that "whenever informant records maintained by a criminal law enforcement agency under an informant's name or personal identifier are requested by a third party, the agency may treat the records as not subject to the requirements of the FOIA unless the informant's status has been officially confirmed.
- (c)(3) Exclusions: Pertains only to certain law enforcement records that are maintained by the Federal Bureau of Investigation (FBI). Requesters who believe that records were improperly withheld because of the exclusions can seek judicial review by filing suit in Federal District Court
Requesters who believe that records were improperly withheld because of the exclusions can seek judicial review by filing suit in Federal District Court.
To assist requesters in ascertaining which records they wish to request: 1) The Government maintains a Government Information Locator Service (GILS), available here; and 2) OGE’s organization and Functions regulation, 5 C.F.R. § 2600 et seq., is available in the e-CFR.