Specifically, section 207(b) provides that for one year after termination of government service, no officer or employee of either the executive or the legislative branch (including Members of Congress) who within one year prior to such termination "personally and substantially participated" in any "ongoing trade or treaty negotiation" and had access to information about the negotiations that is exempt from disclosure under the Freedom of Information Act (FOIA), 5 USC § 552, may, on the basis of such information, knowingly represent, aid or advise any other person (except the United States) concerning such ongoing negotiations.
As described under 1.11:600, above, subsection (j) of section 207 sets out seven general exceptions to some or all of the post-employment prohibitions contained in that section. The prohibition of subsection (b) is subject to only three of those exceptions, namely, nos. (1)—Official government duties; (3)—International organizations; and (6)—Testimony.
It should be noted that although this statutory prohibition is limited to a one-year period following employment, a lawyer who is subject to that prohibition will likely be subject to a restraint on use of the information in question that is imposed by Rule 1.6 of the Rules of Professional Conduct, and that is without a time limit. See DC Rule 1.6(f) (making clear that the obligation to preserve confidences and secrets of a client continues after termination of the lawyer’s employment).
The meaning of the phrase "personal and substantial participation," also an operative term in section 207(a)(1), is explored under 1.11:610, above. The OGE Summary adds that "[i]t is not necessary that a former employee have had actual contact with foreign parties in order to have participated personally and substantially in a trade or treaty negotiation." Id. at 6.
"Trade negotiation" is defined by section 207(b)(2)(A) as negotiations taking place after the President has determined to negotiate a trade agreement pursuant to section 1102 of the Omnibus Trade and Competitiveness Act of 1988 ((OTCA) 19 USC § 2902). The OGE Summary states that trade negotiations become "ongoing" at the earlier of public announcement of a determination by the President or the giving of notice to Congress of his intention to enter into an agreement, which must be given at least 90 days prior to entering into a trade agreement under 19 U.S.C. § 2903(e)(1)(A). Id. at 6. A "treaty," in turn, is defined by section 207(b)(2)(B) as "an international agreement made by the President that requires the advice and consent of the Senate." According to the OGE Summary, treaty negotiations become ongoing "at the point when both (1) the determination has been made by a competent authority that the outcome of a negotiation will be a treaty, and (2) discussions with a foreign government have begun on a text." Id. at 6. For the prohibition to apply, a former employee’s personal involvement in the negotiations must have occurred after, and not before, the negotiations become "ongoing." Id.
The OGE Summary states that "[t]rade and treaty negotiations both cease to be ongoing when an agreement or treaty enters into force or when all parties to the negotiation cease discussion based on a mutual understanding that the agreement or treaty will not be consummated." Id. The OGE Summary does not address situations where such a cessation has occurred but the parties shortly thereafter change their positions and resume negotiations where they left off. Since the Act’s restriction lasts for only one year in any event, it would seem prudent to assume that negotiations resumed within less than a year might well be treated as ongoing, rather than new, negotiations.
Assuming that a former government employee has participated personally and substantially in an ongoing trade or treaty negotiation (in the last year of government employment), he or she may not "knowingly represent, aid or advise any other person (except the United States) concerning such ongoing trade or treaty negotiation for a period of 1 year after his or her service or employment with the United States terminates," but the prohibition takes hold only if such representation is "on the basis of" information concerning the negotiations that he or she "knew or should have known" was designated by the appropriate department or agency as subject to a national security classification or otherwise exempt from disclosure under FOIA. Section 207(b)(1); OGE Summary at 7.
The OGE Summary also states that representation, aid or advice will have been given "on the basis of" restricted information if the "representation, aid or advice either involves a disclosure of covered information to any person, or could not have been made or rendered had the former employee not had actual knowledge of covered information." Id. The OGE Summary adds, however, that a former employee may utilize "information from an agency record which, at the time of his post employment activity, is no longer exempt from disclosure under the Freedom of Information Act." Id..
The OGE Summary states that representation involves appearances before or communications with "any third party," including (but not limited to) "any employee of the executive, legislative or judicial branch of the Federal Government, including a Member of Congress." Id. Unlike the other prohibitions of section 207, this representation need not be intended to influence the taking of official action; it need only be "concerning" the treaty negotiations. A former government employee "aids or advises" another person "when he assists that person other than by communicating to or appearing before a third party." Id. Because it is not enough simply to refrain from disclosing restricted information, it may be difficult to determine or demonstrate that a particular representation has not been in violation of the Act where the former employee had access to substantial amounts of information that was exempt from disclosure.
The OGE Summary points out as well that "even though a trade or treaty negotiation may not yet have become ongoing at the time of an employee’s participation, the negotiation may nonetheless have had specific parties identified to it, thus triggering the lifetime restriction set forth in Section 207(a)(1)." This is consistent with the position taken by OGE in an informal advisory letter issued in 1987. See OGE Informal Advisory Opinion 87 x 3 (March 4, 1987).
