January 5, 1999 U.S. Office of Government Ethics (OGE) Fiscal Year 1998 Annual Freedom of Information Act (FOIA) Report I. Basic Information Regarding this Report A. OGE contact person for questions about OGE's annual FOIA report for Fiscal Year 1998 (10/1/97-9/30/98): William E. Gressman, Senior Associate General Counsel, Office of Government Ethics, Suite 500, 1201 New York Avenue, NW., Washington, DC 20005-3917, Tel: 202-208-8000, ext. 1110; TDD: 202-208-8025; FAX: 202-208-8037. B. Electronic address for this report on OGE's World Wide Web site: http://www.usoge.gov/ogefoia/foiaguid.html#report C. How to obtain a paper copy of this report: download it from OGE's Web site (see I.B. above) or request it from the OGE contact person (see I.A. above) or the OGE General Counsel (see II. below). II. How to Make a FOIA Request See OGE's Guide to FOIA & Public Records for information on the OGE Office of General Counsel and Legal Policy, which receives and processes FOIA requests for this Agency, as well as descriptions of OGE's overall response times, average number of FOIA requests, possible exemptions from FOIA disclosure and various other relevant matters. III. Definitions of Terms and Acronyms Used in this Report A. Agency-specific acronyms and other terms: 1. FOIA -- Freedom of Information Act (5 U.S.C. § 552) 2. FY -- Fiscal Year 3. OGE -- Office of Government Ethics 4. PA -- Privacy Act (5 U.S.C. § 552a) B. Basic terms: 1. FOIA/PA Request -- Freedom of Information Act/Privacy Act request. A FOIA request is generally a request for disclosure of records concerning a third party, an organization or a particular topic of interest. A Privacy Act request is a request for records covered by that Act concerning oneself; such requests are also treated as FOIA requests. (All requests for records, regardless of which law is cited by the requester, are included in this report.) 2. Initial Request -- a request to OGE for records under the Freedom of Information Act. 3. Appeal -- a request to OGE asking that it review at a higher administrative level a full denial or partial denial of a FOIA request, or any other FOIA determination such as a matter pertaining to fees. 4. Processed Request or Appeal -- a request or appeal for which OGE has taken a final action on the request or the appeal in all respects. 5. Multi-track Processing -- a system in which simple requests requiring relatively minimal review are placed in one processing track and more voluminous and complex requests are placed in one or more other tracks. Requests in each track are processed on a first-in/first-out basis. Note: OGE does not have multi-track processing as it generally responds to requests on a timely basis and doesn't have any FOIA backlog. A requester who has an urgent need for records may request expedited processing. (See III.B.6. directly below.) 6. Expedited Processing -- OGE will process a FOIA request on an expedited basis when a requester has shown an exceptional need or urgency for the records which warrants prioritization of his or her request over other requests that were made earlier. 7. Simple Request -- a FOIA request that a Federal agency using multi-track processing places in its fastest (nonexpedited) track based on the volume and/or simplicity of records requested. As noted, OGE does not have multi-track processing. 8. Complex Request -- a FOIA request that an agency using multi-track processing places in a slower track based on the volume and/or complexity of records requested. Again, as noted, OGE does not have multi-track processing. 9. Grant -- an OGE decision to disclose all records in full in response to a FOIA request. 10. Partial Grant -- an OGE decision to disclose a record in part in response to a FOIA request, deleting information determined to be exempt under one or more of the FOIA's exemptions; or a decision to disclose some records in their entireties, but to withhold others in whole or in part. 11. Denial -- an OGE decision not to release any part of a record or records in response to a FOIA request because all the information in the requested records is determined by OGE to be exempt under one or more of the FOIA's exemptions, or for some procedural reason (such as because no record is located in response to a FOIA request). 12. Time Limits -- the time period in the Freedom of Information Act for a Federal agency, including OGE, to respond to a FOIA request (ordinarily 20 working days from proper receipt of a "perfected" FOIA request -- see III.B.13. & 17. below). Note: the OGE response times in Part VII below are, in accordance with Justice Department guidance, given in calendar days; the overall working day equivalent can be approximately calculated by multiplying the calendar day total by .7 (thus 10 calendar days equates to about 7 working days, though the precise mix of working and nonworking days can vary from request to request depending on the date of receipt and the proximity to a holiday). 13. "Perfected" Request -- a FOIA request for records which adequately describes the records sought, which has been received by OGE's FOIA office (for OGE records), and for which there is no remaining question about the payment of applicable fees. 14. Exemption 3 Statute -- a separate Federal statute prohibiting the disclosure of a certain type of information and authorizing its withholding under FOIA subsection (b)(3), which is "Exemption 3." 15. Median Number -- the middle, not average number. For example, of 3, 7 and 14, the median number is 7. In Part VII below, OGE's response times are given in median calendar days. 16. Average Number -- the number obtained by dividing the sum of a group of numbers by the quantity of number in the group. For example, of 3, 7 and 14, the average number is 8. 17. Working Days -- days excepting Saturdays, Sundays and legal public holidays. As noted, OGE's response times in Part VII below are given in median calendar days (the number of "working days" being somewhat less). IV. Exemption 3 Statutes A. List of Exemption 3 statutes relied on by OGE during Fiscal Year 1998 (10/1/97-9/30/98): 1. Brief description of types of information withheld under each statute: a. Section 105 of the Ethics in Government Act of 1978, 5 U.S.C. appendix, § 105 -- this statutory provision provides for public availability of Standard Form 278 Public Financial Disclosure Reports, which show various assets/income, transactions, gifts/reimbursements, liabilities, and outside positions and arrangements of high-level executive branch officials, but only after a requester gives certain identifying information and receives a notice of prohibited uses under the Ethics Act. The SF 278 reports are only available to the public under this special procedure; otherwise, they are exempt from regular FOIA release. b. Section 107 of the Ethics in Government Act of 1978, 5 U.S.C. appendix, § 107 -- this statutory provision provides for confidentiality of OGE Form 450 Confidential Financial Disclosure Reports (and related forms), which show various assets/income, gifts/reimbursements, liabilities, and outside positions and arrangements of mid-level reporting executive branch officials. These reports are also confidential under section 201(d) of Executive Order 12674, as modified by E.O. 12731. 2. The following court cases have upheld the use of each statute: a. Section 105 of the Ethics Act -- Church of Scientology of Texas v. Internal Revenue Service, 816 F. Supp. 1138, 1152 (W.D. Tex. 1993), appeal dismissed per stipulation, No. 93-8431 (5th Cir. Oct. 21, 1993). b. Prior version of section 107 of the Ethics Act -- Meyerhoff v. Environmental Protection Agency, 728 F. Supp. 613 (N.D. Cal. 1990), affirmed, 958 F.2d 1498 (9th Cir. 1992) (upholding the nondisclosure of prior confidential reports under the similar predecessor provision of the law, old section 207 of the Ethics Act, and prior E.O. 11222). V. Initial FOIA/PA Requests A. Numbers of initial requests 1. Number of requests pending as of the end of the preceding fiscal year (FY 97): 1. 2. Number of requests received during the fiscal year covered by this annual report (FY 98): 35. 3. Number of requests processed during FY 98: 34. 4. Number of requests pending as of the end of FY 98: 2. B. Disposition of initial requests 1. Number of total grants: 23. 2. Number of partial grants: 4. 3. Number of denials (partial or total): 4. a. Number of times each FOIA exemption used (counting each exemption once per request): (1) Exemption 1: 0. (2) Exemption 2: 0. (3) Exemption 3: 2. (4) Exemption 4: 2. (5) Exemption 5: 3. (6) Exemption 6: 3. (7) Exemption 7(A): 0. (8) Exemption 7(B): 0. (9) Exemption 7(C): 0. (10) Exemption 7(D): 0. (11) Exemption 7(E): 0. (12) Exemption 7(F): 0. (13) Exemption 8: 0. (14) Exemption 9: 0. 4. Other reasons for nondisclosure in whole or in part (total): 9. a. No records: 7. b. Referrals: 1. c. Request withdrawn: 0. d. Fee-related reason: 0. e. Records not reasonably described: 0. f. Not a proper FOIA request for some other reason: 0. g. Not an agency record: 1. h. Duplicate request: 0. i. Other (specify): 0. VI. Appeals of Initial Denials of FOIA/PA Requests A. Numbers of appeals 1. Number of appeals pending as of the end of the preceding fiscal year (FY 97): 0. 2. Number of appeals received during the fiscal year covered by this annual report (FY 98): 1. 3. Number of appeals processed during FY 98: 1. 4. Number of appeals pending as of the end of FY 98: 0. B. Disposition of initial requests 1. Number completely upheld: 0. 2. Number partially reversed: 0. 3. Number completely reversed: 0. a. Number of times each FOIA exemption used (counting each exemption once per appeal): (1) Exemption 1: 0. (2) Exemption 2: 0. (3) Exemption 3: 0. (4) Exemption 4: 0. (5) Exemption 5: 0. (6) Exemption 6: 0. (7) Exemption 7(A): 0. (8) Exemption 7(B): 0. (9) Exemption 7(C): 0. (10) Exemption 7(D): 0. (11) Exemption 7(E): 0. (12) Exemption 7(F): 0. (13) Exemption 8: 0. (14) Exemption 9: 0. 4. Other reasons for nondisclosure in whole or in part (total): 1. a. No records: 0. b. Referrals: 0. c. Request withdrawn: 0. d. Fee-related reason: 1. e. Records not reasonably described: 0. f. Not a proper FOIA request for some other reason: 0. g. Not an agency record: 0. h. Duplicate request: 0. i. Other (specify): 0. VII. Compliance with Time Limits/Status of Pending Requests A. Median processing time for requests processed during FY 98 1. Total for all requests (note: OGE does not have multi-track processing): a. Number of requests processed: 34. b. Median number of calendar days to process: 13. 2. Requests accorded expedited processing a. Number of requests processed: 3. b. Median number of calendar days to process: 9. B. Status of pending requests as of the end of FY 98 1. Number of requests pending as of the end of FY 98 (9/30/98): 2. 2. Median number of calendar days that such requests were pending as of that date: 16.5. C. Time/status of appeals 1. Number of appeals processed in FY 98: 1. 2. Median number of calendar days to process: 16. 3. Expedited processing not accorded. 4. No appeals were pending at the end of FY 98. VIII. Costs/FOIA Staffing A. Staffing levels 1. Number of full-time FOIA personnel: 0. 2. Number of personnel with part-time or occasional FOIA duties (in estimated total work-years): 0.40. 3. Total number of personnel (in estimated work-years): 0.40. B. Total costs (including staff and all resources) 1. FOIA processing (estimated -- including requests and appeals): $30,000. 2. Litigation-related activities (estimated): $0. 3. Total costs (estimated): $30,000. IX. Fees A. Total amount of fees collected by OGE for processing requests: $65.55. B. Percentage of total estimated costs: less than 1%. X. FOIA Regulations (Including Fee Schedule) OGE's FOIA regulations, including the fee schedule, are codified at 5 C.F.R. part 2604. In addition, after the close of FY 98, OGE issued proposed amendments to its FOIA regulations to codify changes in accordance with the Electronic FOIA Amendments and to make other updating amendments. See 63 Federal Register 66769-66772 (December 3, 1998).