Q: I am the president of a D.C. lobbying firm, and I have a question about the confidentiality of proceedings before the Office of Congressional Ethics. We anticipate that our firm may receive a request for documents from the OCE for an investigation it is conducting relating to certain Members of the House. We would certainly like to cooperate with the investigation, but we are concerned about whether information that we provide to the OCE might be made public or provided to other government officials. Must the OCE keep confidential information it receives during investigations?

[IMGCAP(1)]A: This is a more complicated question than it might seem. The short answer is that the OCE is required to keep your information confidential during an investigation but that there is no guarantee that the information will not eventually become public or even wind up in the hands of other government officials. To understand why requires a review of the basic duties and authority of the OCE. So, let’s start at the beginning.

On March 11, 2008, the House passed H.R. 895 to establish the Office of Congressional Ethics. The resolution states that the purpose of the OCE is to assist “the House in carrying out its responsibilities under article I, section 5, clause 2 of the Constitution (commonly referred to as the ‘Discipline Clause’).”

To that end, the resolution provides for the OCE’s review of allegations of misconduct by Members and staffers to determine whether further review is warranted by the Committee on Standards of Official Conduct, commonly known as the House ethics committee. During its investigations, the OCE may issue requests for information but cannot force anyone to comply with its requests.

To facilitate the OCE’s review of allegations, and perhaps to encourage compliance with information requests, the resolution provides that information provided to the OCE must remain confidential. The resolution includes several provisions regarding confidentiality. For example: “No testimony received or any other information obtained as a member of the board of staff of the Office shall be publicly disclosed by any such individual to any person or entity outside the Office.”

The resolution also requires the OCE to establish procedures necessary to prevent the disclosure of information received by the office and mandates that all OCE employees execute an oath affirming that they will not disclose any information received during their employment.

Thus, on the face of the resolution, it appears that information submitted to the OCE during an investigation should be kept confidential. However, depending on the ultimate outcome of an investigation by the OCE, the confidentiality may only last so long. The OCE’s procedures provide that in certain circumstances the office must publish reports and findings relating to its investigations. These reports and findings are often very detailed, and they attach evidence obtained during the investigation. Therefore, if you provide information to the OCE, there is a risk that it could become public in a report.

Incidentally, late last month Rep. Marcia Fudge (D-Ohio) introduced a bill that would limit the circumstances in which the OCE’s reports would become public and would permit the House ethics committee to direct the OCE to seal records relating to any matter that the panel concludes is frivolous or unfounded. For the time being, however, this bill is not law. Moreover, even if it were to become law, there would still be circumstances under which information submitted to the OCE could wind up in a public report.

You also asked whether information you submit to the OCE could reach government officials. To a certain degree, the answer to the first question also answers the second. After all, any information that the OCE publishes in a report will be available to inspection by anyone, including government officials.

Moreover, even material that the OCE does not publish in a report could still reach government officials. Last month, the OCE announced that it was referring to the Department of Justice “certain evidence collected in the course of its investigation concerning appropriations earmarks and the now defunct PMA lobbing firm.” This came after the House ethics committee declined further action on two matters that the OCE had referred to it.

The OCE’s announcement has not gone without criticism. For example, D.C. attorney Mike Stern, who blogs regarding Congressional legal issues, has questioned whether the OCE has the authority to refer evidence to the DOJ.

The House resolution establishing the OCE includes no provision explicitly authorizing the OCE to refer evidence to the DOJ. Moreover, House ethics committee procedures already allow that panel to make referrals to the DOJ on a vote by two-thirds of the committee. It would seem odd that where the ethics committee rejects that alternative and opts instead to dismiss a matter the Office of Congressional Ethics can still refer the same matter to the DOJ.

But this is all beside the point. To answer your question about whether your information might reach government officials, it is of no moment whether the OCE has the authority to refer such information to such officials. All that matters it that the OCE might actually do so. As things currently stand, that seems beyond doubt.

C. Simon Davidson is a partner with the law firm McGuireWoods LLP.
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