Lack of Transparency by HHS Forces Legal Action by PPT

Agency attempting to withhold records related to waivers until after they expire

Today, watchdog Protect the Public’s Trust announced a federal lawsuit seeking enforcement of its legal rights under a Freedom of Information Act (FOIA) request submitted to the Department of Health and Human Services (HHS) in June 2021. Adding to the urgency of the request, waivers related to the FOIA request may expire before they are available to the American public.

HHS was among several agencies PPT filed FOIA requests seeking records related to waivers to federal ethics laws and the Biden Ethics Pledge that were requested by or granted to political employees. According to records available on the Office of Government Ethics website, at least four political appointees at HHS have received waivers to 5 CFR § 2635.502 (“Section 502”). According to their signed Certifications of Ethics Agreement Compliance, Secretary Xavier Becerra, Assistant Secretary for Health Rachel Levine, Administrator for the Centers for Medicare and Medicaid Services Chiquita Brooks-LaSure, and Assistant Secretary for Mental Health and Substance Abuse Disorders Miriam Delphin-Rittmon received waivers to certain requirements of Section 502 regarding matters involving their former employers, also known as impartiality determinations.

The unwillingness of HHS to comply with its statutory obligations regarding this FOIA has significant effects on transparency. Section 502 contains restrictions on federal employees participating in matters involving individuals and organizations that are considered covered relationships, which include former employers and clients as well as spouse’s employers and clients. The restrictions in this section regarding former employers are in effect for one year. Because of that, Secretary Becerra’s and Assistant Secretary Levine’s waivers, both of whom were confirmed in March 2021, will expire in less than a month. Barring the unlikely event that HHS responds to PPT’s FOIA request before those expirations, the documents will be moot by the time they are made public. The American public will have been deprived of the information revealed by these documents during the entire time they were in effect.

“The idea that waivers to ethics restrictions may expire or become moot before the American public ever has a chance to see them is the antithesis of transparency,” Michael Chamberlain, Director of Protect the Public’s Trust, said. “Unfortunately to much of the American public, that’s all too typical of how their government leaders approach their obligations. Looking at situations like this, it’s no wonder that the American public’s trust in its government is at an all-time low.”

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