Reexamining Financial Disclosure Procedures for the Federal Judiciary

Georgetown Journal of Legal Ethics, The, Summer 2005 by Goldstein, Sarah

INTRODUCTION

The right of federal judges to redact personal information from the mandatory financial disclosure reports they submit annually will be reconsidered by Congress in 2005. The current statute that requires these reports and provides for redaction authority expires on December 31, 2005.1 Though Congress considered making the redaction provision permanent in 2001 when the original sunset provision expired, concerns about the scope of redaction allowed by the statute and possible "over-redaction" allowed by the U.S. Judicial Conference prompted an amendment that moved the expiration date to 2005.2

This Note will first consider the authorizing statute and the requirements it imposes on federal judges. It will next examine a Government Accountability Office ("GAO") report on the financial disclosure requirement process and the report's recommendations. Next, the Note will discuss the APBnews.com incident of 1999 and 2000 which generated considerable publicity, most of it negative, for the judiciary's reluctance to make judges' information available on the Internet. Also examined will be actual security threats and actions taken against judges in recent years. Finally, the Note will recommend that Congress and the U.S. Judicial Conference strongly consider the conclusions of the GAO report in debating and voting on the proposal to make permanent the redaction provision. While the redaction provision is a necessity for those situations in which judges face true security concerns, the danger of abuse is great, and better procedures and scrutiny of redaction requests could cleanse the process and increase both public access to these reports and the utility of the reports in exposing conflicts of interest.

I. THE ETHICS IN GOVERNMENT ACT OF 1978

The Ethics in Government Act of 1978 ("Act") requires that federal judges disclose personal and financial information each year.3 Under the Act, federal judges must disclose the source and amount of income, other than that earned as employees of the United States government, received during the preceding calendar year.4 Judges must also disclose the source, description, and value of gifts for which the aggregate value is more than a certain minimal amount, received from any source other than a relative; the source and description of reimbursements; the identity and category of value of property interests; the identity and category of value of liabilities owed to creditors other than certain immediate family members; and other financial information.5

The Act allows judges to redact information from their financial disclosure reports under certain circumstances.6 Congress passed this redaction provision in 1998 by adding a new subsection to the Act.7 A report may be redacted "(i) to the extent necessary to protect the individual who filed the report; and (ii) for as long as the danger to such individual exists."8 The Act further charges the U.S. Judicial Conference, in consultation with the Department of Justice, with the task of submitting to the House and Senate Committees on the Judiciary an annual report documenting redactions.9

The redaction provision of the Act expires in December 2005.10 When originally passed, the provision contained a three-year sunset clause whereby it was set to expire in December 2001, unless extended by Congress.11 After the House of Representatives approved a bill striking the sunset clause and making the redaction authority permanent,12 the Senate Governmental Affairs Committee ("GAC") considered whether to make the authority permanent. Committee members raised several concerns about the bill, including the use of the redaction authority to avoid revealing stock holdings and other financial assets.13 Additionally, GAC observed that complete withholding of financial disclosure reports had sometimes occurred, noting that such withholding seemed contrary to the intent of the statute.14 Ultimately, GAC recommended that an amendment to the bill be offered, by which the redaction authority would be extended for four years, until December 31, 2005.15 This extension would effectively allow for a more in-depth investigation of areas of concern before Congress decided whether to ultimately make the authority permanent.16 The GAO prepared a report to assist Congress in deciding whether to extend the redaction authority granted in the Act and how to respond to some of the concerns posed by GAC members.17

II. THE GOVERNMENT ACCOUNTABILITY OFFICE REPORT

In June 2004, the GAO published a Report to Congressional Requesters ("Report") on the financial disclosure procedures mandated by the Act and the Act's redaction provision's implications.18 This report examined the process of financial disclosure, redaction, and distribution to public requesters, and it made recommendations as to how the process could better take account of requesters' need for information while protecting judges' security.

The Report examined the financial disclosure reports filed between 1999 and 2002 by more than 2,000 judges.19 Around "ten percent or less of those judges who filed [reports] each year requested redactions," and the U.S. Judicial Conference's Committee on Financial Disclosure ("Committee"), acting through the Subcommittee on Public Access and security ("Subcommittee"), granted 592 of the 661 redaction requests submitted and processed from 1999 through 2002.20 The Committee generally grants redactions to "prevent the disclosure of (1) unsecured locations of judges and members of their families and (2) information that bears a clear nexus with specific security threats."21 According to the Report's findings, the Subcommittee has "applied these principles consistently to the redactions of (1) entire financial disclosure reports, (2) spouses' places of employment, (3) the value of income and assets, (4) asset names, (5) reimbursements, and (6) gifts."22