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FCC Declines to Disclose Employee Recusal Statements

The FCC has declined to make employee recusal statements public, or to require they be made mandatory.

After the exit of Commissioner Meredith Attwell Baker to Comcast only a few months after the FCC's approval of the NBCU merger, Public Knowledge had asked the FCC to require that "anyone negotiating employment with an organization doing business with the Commission file a letter, available for public viewing, with the recusal information." The group was concerned that the public did not know Baker had been talking to Comcast while a commissioner until she left.

The FCC had had a policy of publishing those recusal statements, but discontinued it in 1996 to square with government-wide ethics rules adopted in 1991.

In a letter Friday to Public Knowledge (PK) President Gigi Sohn, FCC General Counsel Austin Schlick said that after reviewing the request, the FCC had concluded 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)." He also said that publicizing them could discourage staffers from disclosing the contacts. "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."

"At a time when public confidence in government is at low ebb, and when the Obama Administration has promised high levels of transparency, it is disappointing that the Federal Communications Commission (FCC) would shield from the public potential transitions of Commission staff to private industry," said Legal Director Harold Feld in a statement.

Although the FCC will not publish those contacts while they are being made, or contacts that do not result in an employee taking the job, Schlick said it will make public, after the fact, such recusal statements with an entity an employee does wind up working for. "In the case of requests for access to recusal statements covering entities with which a former FCC employee actually accepted employment," he said, "the balance tips in favor of disclosure and access will be granted."

That was cold comfort for PK. "It's ‘tipped' in favor of the employee, with no public interest considerations," said a PK spokesperson. "It doesn't do anyone any good to know that a now-former employee was discussing employment."