Think Before You Speak: Ethics Guidance on Non-Public Information

Now that summer is here and COVID-19 restrictions on social gatherings are easing, we thought it would be a good opportunity to remind everyone about the restrictions concerning the use (and misuse) of non-public information gained as a result of our Federal employment.  Pursuant to the Standards of Ethical Conduct for Employees of the Executive Branch (“Standards”), Federal employees are prohibited from engaging in any financial transaction using non-pubic information, or allowing the improper use of non-public information to further the Federal employee’s own private interest or that of another, whether through advice or recommendation, or by knowing unauthorized disclosure.  Under the Standards, non-public information is defined as information that a Federal employee gains by reason of his or her Federal employment and that he or she knows (or reasonably should know) has not been made available to the general public and includes information that: (1) is routinely exempt from disclosure under the Freedom of Information Act (5 U.S.C. § 552) or is otherwise protected from disclosure by another statute, Executive order or regulation; (2) is designated as confidential by a Federal agency; or (3) has not actually been disseminated to the general public and is not authorized to be made available to the public on request.

Additionally, the STOCK Act of 2012 explicitly applies the Federal prohibitions on insider trading to Federal employees stating that Federal employees owe a duty arising from a relationship of trust and confidence to the United States and its citizens with respect to “material non-public information” gained from the performance of their official duties.  As a result, Federal employees are prohibited from using such material non-public information to benefit themselves or others financially through the purchase or sale of securities.  Although not specifically defined in law, material non-public information is generally considered to be any information that would likely affect the price of a security and includes, but is not limited to, information concerning: (1) the release of government reports or audits; (2) government decisions such as patent determinations or drug approvals; (3) the filing of litigation or the declaration of bankruptcy; and (4) mergers, acquisitions or changes in management.

Lastly, for those of you who work on Federal agency procurement contracts, please be aware that the Procurement Integrity Act also prohibits the disclosure of “contractor bid or proposal information” or “source selection information” by Federal employees before the award of a Federal agency procurement contract to which the information relates.

In light of the above information, please be mindful of the information you are disclosing concerning your Federal employment when socializing with family and friends.  As a general rule of thumb, it is permissible to disclose that you are a Federal employee, but when asked about your specific duties, it is recommended that you speak in generalities and not disclose specific information concerning matters you are currently working on as well as the parties to those matters as you might be putting yourself at risk of violating the above restrictions.

If you have any questions concerning this guidance or any other ethics topic, you are encouraged to contact an ethics counselor in your respective bureau or office.  Contact information for the Department of the Interior’s Departmental Ethics Office and bureau ethics counselors is available at https://www.doi.gov/ethics/bureau-office-contacts.