Strengthening Whistleblower Protection (US0081)

• Innovations in Democratic Oversight of Surveillance from OGP MembersUnited States: Whistleblower Protection (May 19, 2021)

The Administration has continued to increase support for Federal employees who report waste, fraud, and misconduct through appropriate, legally authorized channels. Ensuring that employees, contractors, and the public understand the roles and responsibilities during the whistleblower process is key to properly protecting employees who act as whistleblowers.

For details of these commitments, see the report: https://www.opengovpartnership.org/documents/united-states-mid-term-report-2015-2017/

Commitment 29. Strengthen Whistleblower Protections

Strengthen Whistleblower Protections for Government Employees

The Administration has continued to increase support for Federal employees who report waste, fraud, and misconduct through appropriate, legally authorized channels. Ensuring that employees, contractors, and the public understand the roles and responsibilities during the whistleblower process is key to properly protecting employees who act as whistleblowers. In furtherance of these efforts, the Administration will:

• Develop a Common Training Program on Whistleblowing Rights and Duties. The Director of National Intelligence will coordinate with other departments and agencies to develop a common whistleblower training curriculum that can be used by all Federal agencies covered under the presidential directive protecting whistleblowers with access to classified information, PPD-19. The training program will include disclosure procedures, applicable protections from unlawful retaliation for protected disclosures, and best practices for managers and supervisors. The Intelligence Community will seek input from civil society in developing the program and its compliance will be reviewed by agencies’ inspectors general.
• Improve the Adjudication Process for Reprisal Claims by Department of Justice Employees. The Department of Justice will propose revisions to its regulations providing whistleblower protection procedures for employees of the Federal Bureau of Investigation, including proposing to expand the list of officials to whom protected disclosures may be made. Findings of reprisal will be reported to the Federal Bureau of Investigation’s Office of Professional Responsibility and to the Federal Bureau of Investigation Director for appropriate action. Additionally, the Department of Justice will continue to evaluate and update its mandatory training program to ensure all employees understand their rights and responsibilities under whistleblower protection laws.

• Oversee Compliance with the Presidential Directive on Protecting Whistleblowers. The Inspector General for the Intelligence Community will create a peer review process to oversee reprisal reviews under PPD-19, creating a single point of contact to develop criteria for peer reviews. These criteria will include common review standards and reporting requirements for reviewing reprisal allegations within the Intelligence Community.

Responsible Institutions: Federal Bureau of Investigation (FBI) within the Department of Justice, Office of the Director of National Intelligence, and Inspector General of the Intelligence Community

Supporting Institutions: Intelligence community agencies

Start date: Not specified....... ........ End date: Not specified

Commitment Aim

Amid a perceived lack of effective whistleblower protections by civil society, [410] this commitment aimed to enhance protection for federal whistleblowers by:

• Developing a government-wide whistleblower training program covering such issues as disclosure procedures and protection against retaliation, with input solicited from civil society and compliance to be monitored by agencies’ inspectors general;
• Proposing revisions to the whistleblower protection regulations of the Department of Justice (DOJ)—specifically the adjudication process for reprisal claims—as applicable to employees of the Federal Bureau of Investigation (FBI), as well as evaluating and updating its mandatory training program; and
• Creating a centralized peer review process for reprisal reviews under Presidential Policy Directive 199 (PPD-19). [411] The review process would be coordinated under the Inspector General for the Intelligence Community and made applicable to members of the Intelligence Community (IC).

Status

Midterm: Limited

At the midterm, the government had made limited progress on this commitment:

• As of June 2016, the Office of the Director of National Intelligence reported that it had developed a common whistleblower training curriculum incorporating inputs from civil society, resulting in substantial completion for Milestone 29.1. The program is known as the “Protecting Whistleblowers with Access to Classified Information Training Curriculum.” [412] However, the curriculum itself was not publicly available by the end of the midterm reporting period, impeding the milestone’s completion.
• In June 2016, the DOJ, in conjunction with its Office of Inspector General Whistleblower Ombudsperson Program, expanded and made mandatory a whistleblower training program for all FBI employees. [413] However, by the end of the midterm reporting period, the DOJ had not yet proposed revisions to the adjudication process for reprisal claims, resulting in limited completion for Milestone 29.2.
• The Inspector General for the Intelligence Community began “training inspector general personnel” on reprisal investigation procedures as a first step toward developing peer review criteria. [414] However, the development of the actual peer review process under PPD-19 remained pending at the midterm, resulting in limited completion for Milestone 29.3.

End of term: Substantial

Progress on this commitment was substantial at the end of term in light of advances made on Milestones 29.1 and 29.2, despite limited ongoing completion for Milestone 29.3:

• On 18 November 2016, the Office of the Director of National Intelligence (ODNI) publicly announced the release of the Protecting Whistleblowers training curriculum [415]; the curriculum itself is unclassified and publicly available online. [416] The curriculum is comprised of four separate modules—(1) general information on whistleblowing and the process for making a protected disclosure; (2) processes for addressing adverse, retaliatory actions affecting a security clearance; (3) processes for addressing adverse, retaliatory personnel actions; and (4) best practices for managers and supervisors—and is complemented by the inclusion of key terms and references. [417] Collectively, the modules apply to all executive branch agency employees and contractors who are eligible for access to classified information (Modules 1 and 2), all employees of IC elements (Module 3), and executive branch agency employees in supervisory positions with access to classified information (Module 4). [418] With the curriculum’s publication, Milestone 29.1 is considered complete. More information is available on an ODNI fact sheet about the curriculum. [419]

• On 10 December 2016, the US Congress passed the Federal Bureau of Investigation Whistleblower Protection Enhancement Act of 2016. [420] As described in a blog post on The Whistleblower Blog, [421] the act allows FBI employees to make protected disclosures [422] to their direct supervisors, affording them legal protection in case of reprisals, whereas previously, “Justice Department regulations require[d] disclosures to be made to a limited group of senior officials,” and disclosures made to direct supervisors were not legally protected. [423] With reference to this act, a press release posted on the website of US Senator Patrick Leahy (D-Vermont) on 20 September 2017 reproduces the content of a letter co-written by Senator Leahy and the Chairman of the Senate Judiciary Committee Chuck Grassley (R-Iowa) that was transmitted to US Attorney General Jeff Sessions, which notes that “according to DOJ, the agency has finally updated its training as of August 2017 to reflect the changes in the law that now explicitly protects disclosures to supervisors as well as to the OSC [(Office of Special Counsel)] and Congress.” Progress on Milestone 29.2 is therefore considered complete.
• At the end of term, the IRM researcher was unable to document any further progress on Milestone 29.3; completion therefore remains limited.

Did It Open Government?

Civic Participation: Marginal

Public Accountability: Major

This commitment marginally opened government with respect to civic participation, and did so more substantially with respect to public accountability. The former stems from the government’s consultation with civil society as part of the development process for the whistleblower training curriculum. The latter stems from progress made on Milestones 29.1 and 29.2, which may collectively serve to better inform federal employees of rights and procedures related to protected disclosures, particularly with respect to disclosures made to direct supervisors. As referenced in the progress report, a January 2015 report produced by the Government Accountability Office (GAO) noted that “DOJ and FBI guidance is not always clear that FBI employees reporting alleged wrongdoing to a supervisor or someone in their chain of command may not be a protected disclosure. Ensuring that guidance always clearly explains to whom an FBI employee can report wrongdoing will help FBI whistleblowers ensure that they are fully protected from retaliation.” [424]

In recent years, the Department of Justice has terminated a substantial number of whistleblower retaliation complaints, at least partially on the grounds that disclosures were made to a direct supervisor and therefore not protected. In particular, the GAO’s January 2015 report notes that from 2009-2013, the Department of Justice closed a total of 64 whistleblower retaliation complaints, of which 54 were sufficiently well-documented to establish the reason for complaint closure. Among those 54 complaints, 31.5% (i.e. 17 complaints) were closed “because a disclosure was made to someone in the employee’s chain of command or management, such as a supervisor, who was not one of the nine high-level FBI or DOJ entities designated under DOJ regulations to receive such disclosures,” leaving them without protection from retaliation. “By dismissing potentially legitimate complaints in this way,” the report assesses that “DOJ could deny some whistleblowers access to recourse, permit retaliatory activity to go uninvestigated, and create a chilling effect for future whistleblowers,” highlighting the potentially substantial impact on whistleblowing that could be occasioned by leaving the issue of protected disclosures to direct supervisors unaddressed, both with respect to federal whistleblower training programs and related legislation.

In the context of this commitment, the Office of the Director of National Intelligence’s (ODNI’s) training curriculum responds directly to the issue, while the Whistleblower Protection Enhancement Act of 2016 provides the complementary legal foundation for federal employees and contracts to make protected disclosures to direct supervisors. Elements of civil society have expressed largely positive feedback on the latter, with the Project on Open Government Oversight (POGO) noting that “the vast majority of whistleblower complaints are made to direct supervisors,” so this is a major improvement, while nevertheless cautioning that “further legislation is necessary to sufficiently protect FBI whistleblowers from retaliation.” [425] The Executive Director of the National Whistleblower Protection Center similarly noted that “this is an important step to protect whistleblowers and increase accountability at the FBI—one of the largest law enforcement agencies in the world,” while also noting that further reforms are needed. [426] The IRM researcher assesses the opening of government cause by these changes to be major in light of the relatively high percentage of whistleblower retaliation complaints that the DOJ closed (at least in part). These complaints were closed because they were made to direct supervisors, in line with civil society’s general interpretation of the activities described above.

Carried Forward?

At the time of writing, the US government had not published its fourth national action plan, so it is unclear if this commitment will be carried forward. Going forward, the government should aim to finalize the anticipated peer review process under PPD-19 and develop a system to track and ensure compliance with the directive.

[410] Bermel, Colby Bermel. “Whistleblowers: VA’s Watchdog Office is Failing us.” Government Executive. 31 July 2015, http://bit.ly/2uCU8UC.

[411] The White House. “Presidential Policy Directive 19. ” 10 October 2012. https://www.va.gov/about_va/docs/president-policy-directive-ppd-19.pdf. Consulted 9 October 2017.

[412] Open Government Parnership. “United States of America Midterm Self-Assessment Report for the Open Government Partnership: Third Open Government National Action Plan, 2015–2017.” p.31. September 2016. https://www.opengovpartnership.org/sites/default/files/USA_NAP3_self-assessment-report_20160916.pdf. Consulted 2 October 2017.

[413] Ogrysko, Nicole. “In Celebration of Whistleblowers, Oversight Community Says ‘We’re Listening.’” Federal News Radio. 1 August 2016. https://federalnewsradio.com/workforce-rightsgovernance/2016/08/celebration-whistleblowers-oversight-community-says-listening/. Consulted 9 October 2016.

[414] Open Government Partnership. “United States of America Midterm Self-Assessment Report for the Open Government Partnership: Third Open Government National Action Plan, 2015–2017.” p.31. September 2016. https://www.opengovpartnership.org/sites/default/files/USA_NAP3_self-assessment-report_20160916.pdf. Consulted 2 October 2017.

[415] Director of National Intelligence. “Memorandum ES 2016-00692.” 18 November 2016. https://www.dni.gov/files/documents/icotr/Memo_Whistleblower.PDF. Consulted 21 September 2016.

[416] Director of National Intelligence. “Protecting Whistleblowers with Access to Classified Information Training Curriculum.” https://www.dni.gov/files/documents/icotr/Whistleblower.PDF. Consulted September 21 2017.

[417] Office of the Director of National Intelligence. “Whistleblower Training Factsheet.” https://www.dni.gov/files/documents/icotr/Whistleblower%20Training_Fact%20Sheet.pdf. Consulted 21 September 2017.

[418] Ibid.

[419] Ibid.

[420] US Congress. H.R.5790. “Federal Bureau of Investigation Whistleblower Protection Enhancement Act of 2016.” https://www.congress.gov/bill/114th-congress/house-bill/5790/text. Consulted 21 September 2017.

[421] Wilmoth, Mary Jane. “Senate Passes Three Important Whistleblower Bills” The Whistleblower Blog. http://www.whistleblowersblog.com/2016/12/senate-passes-three-important-whistleblower-bills/. Consulted 21 September 2017.

[422] Per the text of the curriculum, a protected disclosure is defined as “information than an employee or contractor reasonably believes evidences a violation of law, rule, or regulation; or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, that the employee or contractor provides to a person or entity authorized to receive such disclosure…..” See Director of National Intelligence. “Protecting Whistleblowers with Access to Classified Information Training Curriculum.” p.9. https://www.dni.gov/files/documents/icotr/Whistleblower.PDF. Consulted September 21 2017.

[423] Protected disclosures made to direct supervisors are also covered by the Protecting Whistleblowers Training Curriculum. See Director of National Intelligence. “Protecting Whistleblowers with Access to Classified Information Training Curriculum.” p.4. https://www.dni.gov/files/documents/icotr/Whistleblower.PDF. Consulted September 21 2017).

[424] US Government Accountability Office. “Whistleblower Protection: Additional Actions Needed to Improve DOJ’s Handling of FBI Retaliation Complaints.” January 2015. http://www.gao.gov/assets/670/668055.pdf. Consulted 29 September 2017.

[425] Project on Open Government Oversight. “POGO Applauds Senate Passage of FBI Whistleblower Protection Enhancement Act.” 12 December 2016.  https://bit.ly/2F7yetO. Consulted 18 March 2018.

[426] Lyons, Paul. 12 December 2016. “Congress Unanimously Closes One Loophole in FBI Whistleblower Protections.” Whistleblowers Protection Blog. https://bit.ly/2Jf9xhD . Consulted 18 March 2018.