### §1416. Confidentiality

#### (a) Mediation

All information discussed or disclosed in the course of any mediation shall be strictly confidential, and the Executive Director shall notify each person participating in the mediation of the confidentiality requirement and of the sanctions applicable to any person who violates the confidentiality requirement.

#### (b) Hearings and deliberations

Except as provided in subsections (c), (d), and (e), all proceedings and deliberations of hearing officers and the Board, including any related records, shall be confidential. This subsection shall not apply to proceedings under section 1341 of this title, but shall apply to the deliberations of hearing officers and the Board under that section. The Executive Director shall notify each person participating in a proceeding or deliberation to which this subsection applies of the requirements of this subsection and of the sanctions applicable to any person who violates the requirements of this subsection.

#### (c) Release of records for judicial action

The records of hearing officers and the Board may be made public if required for the purpose of judicial review under section 1407 of this title.

#### (d) Automatic referral to Congressional Ethics Committee of dispositions of claims involving Members of Congress and senior staff

#### (1) Referral

Upon the final disposition under this subchapter (as described in paragraph (6)) of a claim alleging a violation described in section 1415(d)(1)(C) of this title committed personally by a Member of the House of Representatives (including a Delegate or Resident Commissioner to the Congress) or a Senator, or by a senior staff of the House of Representatives or Senate, the Executive Director shall refer the claim to—

(A) the Committee on Ethics of the House of Representatives, in the case of a Member or senior staff of the House; or

(B) the Select Committee on Ethics of the Senate, in the case of a Senator or senior staff of the Senate.

#### (2) Access to records and information

If the Executive Director refers a claim to a Committee under paragraph (1), the Executive Director shall provide the Committee with access to the records of any preliminary reviews, hearings, or decisions of the hearing officers and the Board under this chapter, and any information relating to an award or settlement paid, in response to such claim.

#### (3) Review by Senate ethics committee of settlements of certain claims

After the receipt of a settlement agreement for a claim that includes an allegation of a violation described in section 1415(d)(1)(C) of this title committed personally by a Senator, the Select Committee on Ethics of the Senate shall—

(A) not later than 90 days after that receipt, review the settlement agreement;

(B) determine whether an investigation of the claim is warranted; and

(C) if the Select Committee determines, after the investigation, that the claim that resulted in the settlement involved an actual violation described in section 1415(d)(1)(C) of this title committed personally by the Senator, then the Select Committee shall notify the Executive Director to request the reimbursement described in section 1415(d) of this title and include the settlement in the report required by section 1381(l) of this title.

#### (4) Protection of personally identifiable information

If a Committee to which a claim is referred under paragraph (1) issues a report with respect to the claim, the Committee shall ensure that the report does not directly disclose the identity or position of the individual who filed the claim.

#### (5) Committee authority to protect identity of a claimant

#### (A) Authority

If a Committee to which a claim is referred under paragraph (1) issues a report as described in paragraph (4) concerning a Member of the House of Representatives (including a Delegate or Resident Commissioner to the Congress) or a Senator, or a senior staff of the House of Representatives or Senate, the Committee may make an appropriate redaction to the information or data included in the report if the Chairman and Vice Chairman of the Committee reach agreement—

(i) that including the information or data considered for redaction may lead to the unintentional disclosure of the identity or position of a claimant; and

(ii) on the precise information or data to be redacted.

#### (B) Notation and statement

The report including any such redaction shall note each redaction and include a statement that the redaction was made solely for the purpose of avoiding such an unintentional disclosure of the identity or position of a claimant.

#### (C) Retention of reports

The Committee making a redaction in accordance with this paragraph shall retain a copy of the report, without a redaction.

#### (6) Final disposition described

In this subsection, the "final disposition" of a claim means any of the following:

(A) An order or agreement to pay an award or settlement, including an agreement reached pursuant to mediation under section 1403 of this title.

(B) A final decision of a hearing officer under section 1405(g) of this title that is no longer subject to review by the Board under section 1406 of this title.

(C) A final decision of the Board under section 1406(e) of this title that is no longer subject to appeal to the United States Court of Appeals for the Federal Circuit under section 1407 of this title.

(D) A final decision in a civil action under section 1408 of this title that is no longer subject to appeal.

#### (7) Senior staff defined

In this subsection, the term "senior staff" means any individual who, at the time a violation occurred, was required to file a report under title I of the Ethics in Government Act of 1978 (5 U.S.C. App. 101 et seq.).1

#### (e) Final decisions

A final decision entered under section 1405(g) or 1406(e) of this title shall be made public if it is in favor of the complaining covered employee, or in favor of the charging party under section 1331 of this title, or if the decision reverses a decision of a hearing officer which had been in favor of the covered employee or charging party. The Board may make public any other decision at its discretion.

#### (f) Claims

Nothing in this section may be construed to prohibit a covered employee from disclosing the factual allegations underlying the covered employee's claim, or to prohibit an employing office from disclosing the factual allegations underlying the employing office's defense to the claim, in the course of any proceeding under this subchapter.

(Pub. L. 104–1, title IV, §416, Jan. 23, 1995, 109 Stat. 38; Pub. L. 114–6, §2(c), Mar. 20, 2015, 129 Stat. 81; Pub. L. 115–397, title I, §§112, 114, Dec. 21, 2018, 132 Stat. 5311, 5313.)

#### **Editorial Notes**

#### References in Text

This chapter, referred to in subsec. (d)(2), was in the original "this Act", meaning Pub. L. 104–1, Jan. 23, 1995, 109 Stat. 3, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1301 of this title and Tables.

The Ethics in Government Act of 1978, referred to in subsec. (d)(7), is Pub. L. 95–521, Oct. 26, 1978, 92 Stat. 1824. Title I of the Act was set out in the Appendix to Title 5, Government Organization and Employees, and was substantially repealed and restated in subchapter I (§13101 et seq.) of chapter 131 of Title 5 by Pub. L. 117–286, §§3(c), 7, Dec. 27, 2022, 136 Stat. 4266, 4361. For complete classification of this Act to the Code, see Tables. For disposition of sections of title I of the Act into subchapter I of chapter 131 of Title 5, see Disposition Table preceding section 101 of Title 5.

#### Amendments

2018—Subsec. (a). Pub. L. 115–397, §114(b)(1), (2), redesignated subsec. (b) as (a) and struck out former subsec. (a). Prior to amendment, text of subsec. (a) read as follows: "All counseling shall be strictly confidential, except that the Office and a covered employee may agree to notify the employing office of the allegations."

Subsec. (b). Pub. L. 115–397, §114(b)(2), (3), redesignated subsec. (c) as (b) and substituted "subsections (c), (d), and (e)" for "subsections (d), (e), and (f)". Former subsec. (b) redesignated (a).

Pub. L. 115–397, §114(a), substituted "All information discussed or disclosed in the course of any mediation" for "All mediation".

Subsecs. (c), (d). Pub. L. 115–397, §114(b)(2), redesignated subsecs. (d) and (e) as (c) and (d), respectively. Former subsec. (c) redesignated (b).

Subsec. (e). Pub. L. 115–397, §114(b)(2), redesignated subsec. (f) as (e). Former subsec. (e) redesignated (d).

Pub. L. 115–397, §112, amended subsec. (e) generally, substituting provisions relating to automatic referral to congressional ethics committee of dispositions of claims involving Members of Congress and senior staff for provisions relating to access by committees of Congress.

Subsec. (f). Pub. L. 115–397, §114(b)(4), added subsec. (f). Former subsec. (f) redesignated (e).

2015—Subsec. (b). Pub. L. 114–6, §2(c)(1), inserted before period at end ", and the Executive Director shall notify each person participating in the mediation of the confidentiality requirement and of the sanctions applicable to any person who violates the confidentiality requirement".

Subsec. (c). Pub. L. 114–6, §2(c)(2), inserted at end "The Executive Director shall notify each person participating in a proceeding or deliberation to which this subsection applies of the requirements of this subsection and of the sanctions applicable to any person who violates the requirements of this subsection."

#### **Statutory Notes and Related Subsidiaries**

#### Effective Date of 2018 Amendment

Amendment by Pub. L. 115–397 effective upon expiration of the 180-day period beginning on Dec. 21, 2018, with provisions for effect on pending proceedings, see section 401 of Pub. L. 115–397, set out as a note under section 1301 of this title.

#### Effective Date of 2015 Amendment

Amendment by Pub. L. 114–6 applicable with respect to mediations and other proceedings first initiated after Mar. 20, 2015, see section 2(d) of Pub. L. 114–6, set out as a note under section 1403 of this title.

1 See References in Text note below.