FCC Record, Volume 26, No. 19, Pages 14991 to 15893, October 24 - November 10, 2011 Page: 15,234

                                
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In 1996, the Commission repealed its Rule 19.735-204(e).5 The Commission determined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 Statements
After it adopted 47 C.F.R.  19.735-204(e) and required statements of disqualification,
the Commission held in Citizens Communications Center 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." 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."'
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.' OGC also recently released recusal information relating
to former Commissioner Baker's acceptance of an offer of employment with a regulated
See Stanhard-s of Ethical C(onduct for Emplovee of the Evecutive Branch, 56 Fed. Reg. 3378 (1991).
SSee id. at 33784-85.
See Adoption of Supplemental Stamncrdc of Ethic'al Conduct for Emkpliees of the Federal Communnicatins
Commtsnson and Revision of /the Commission ", Employee Responsiihiltlies and Conduct Regulations. 11 FCC Red
15438, 15441 '1 12 (1996).
See id. (indicating that repealed provisions were superseded by executive branch-wide provisions).
785 FCC2d 191 (1981).
5 U.S.C.  552(b)(6).
See 85 FCC 2d at 193-94   1 5-6.
" h/ at 193-94 5.
SSee Letter from Joel Kaufman to Mr. Robert Herring FOlA No. 2)01 1-383 (June 28. 201 1).

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