Leaker’s Guide, Part Two — What’s Legal, What’s Not?

WatchDog: Leaker’s Guide, Part Two — What’s Legal, What’s Not?

 

EDITOR'S NOTE: As with part one of our Leaker’s Guide, WatchDog is responding to these unusual times by switching our focus from freedom of information insights for journalists to those who provide that information — the whistleblowers.  These Leaker’s Guide columns are designed to help journalists work with potential sources inside government, such as at the U.S. Environmental Protection Agency — so go ahead, share these guides with the government worker nearest you.

By Joseph A. Davis, WatchDog TipSheet Editor

First, know that leaking (or even talking to news media in the open) is legal, unless you are dealing with classified information — and there is only a tiny amount of that at EPA and most federal environmental agencies. It is perfectly legal to share with a journalist an EPA document that would otherwise be exempt from the Freedom of Information Act.

Still, leaking and whistleblowing are usually dangerous because of the possibility of retribution against the leaker.

Leaking and whistleblowing, technically, are two different things. “Whistleblowing” is commonly understood to mean the reporting of agency wrongdoing — whether to constituted authorities or to journalists. “Leaking” generally means giving information anonymously to a journalist, who then reports it.

 

Anonymous sharing of information

with the news media 

can still be highly effective,

if leakers feel they can trust reporters.

 

Retribution against legitimate whistleblowers is actually illegal under the federal Whistleblower Protection Act (originally enacted in 1989). But the protections from that law have proven increasingly toothless over the years. The Office of Special Counsel, which is supposed to protect legitimate whistleblowers, has failed to do so in many cases.  

So be aware as a source that while formal complaints to protect whistleblowers may not often work, anonymous sharing of information with the news media can still be highly effective, if leakers feel they can trust reporters.

As a prospective leaker or whistleblower, you have legal rights — and free lawyers willing to guide you in exercising them. Even lawyers for hire. So let’s talk about those rights (and their limits).

To start, there is the First Amendment, which guarantees U.S. citizens freedom of speech. There is nothing to stop you from saying anything to anyone. That is, the Constitution largely guarantees no prior restraint of speech. The First Amendment also guarantees the right of a free press to hear what you have to say, and to publish it.

But there may sometimes be legal, and illegal, consequences.

What does the Whistleblower Protection Act cover?

The original 1989 Whistleblower Protection Act tried to give special protections to government employees who disclosed waste, fraud and abuse. It protects disclosures to agency higher-ups, Congress, the news media and the public.

The act specifically covers disclosures of violation of a law, rule or regulation, or of “gross mismanagement.” It also covers disclosure of “gross waste of funds,” abuse of authority or a substantial and specific danger to public health or safety. That last item should be of special relevance to environmental reporters.

Pulitzer-winning New York Times reporter James Risen at an event in November 2014. Risen refused to identify a source, even after the case went to the Supreme Court. Photo: Miller Center, Flickr Creative Commons

Certain disclosures by certain employees, however, are not protected. Those include employees of the intelligence agencies and disclosure of properly classified national security information and diplomatic secrets, or information that is restricted by law from disclosure. An example might be “confidential business information.”

Historically, government agency employees who have tried to disclose these transgressions  have often been punished — hence the need for the Whistleblower Protection Act. The retaliation and the reasons for it may not always be explicit — a bad performance review, a transfer, a demotion, etc.

Who handles complaints about retribution?

A protected employee who feels a personnel action is reprisal for a protected disclosure can file a complaint. Such complaints are handled by the Office of Special Counsel and the Merit Systems Protection Board.

The roles of these two agencies are, at bottom, murky and ambiguous. Both have multiple mandates meant, at least in theory, to support the integrity of the federal civil service.

The special counsel is supposed to play an investigative and quasi-prosecutorial role. Government employees can lodge their complaints of waste and abuse directly with the special counsel.

The Merit Systems Protection Board is supposed to play a quasi-judicial role in resolving whistleblower complaints and disputes.

But in reality, neither office often plays these roles fairly or effectively. Special counsels are supposed to be independent. But the fact that they are nominated by the president and confirmed by the Senate can make them political.

In 2012, after years of trying, Congress finally passed the Whistleblower Protection Enhancement Act, which was meant to shore up some of the weaknesses in the original 1989 law.

Whistleblower advocates saw it as a significant improvement, eliminating some loopholes that had kept whistleblowers from obtaining protection. But it did not fix all the law’s weaknesses.

One more law sometimes relevant to whistleblowers is the False Claims Act. Under certain circumstances, when a whistleblower identifies fraud that costs the taxpayers money, and the government actually recovers damages, the whistleblower (who does not have to be a government employee) can get a portion. Don’t try this without a lawyer.

EPA non-policy on talking to news media

Even though most EPA employees think there is an agency policy against speaking to the press without press office permission, there is not.

SEJ made a Freedom of Information Act request of the EPA in 2015 in search of any written policy about who could talk to media. EPA responded that there really was none. Perhaps the policy exists unofficially, and works through suggestion and intimidation. Not being formally in writing, it would be hard to enforce.

EPA’s Scientific Integrity Policy is the closest thing the agency has to a written press policy. That policy seems to acknowledge employees' First Amendment right to speak to the press, as long as they make clear they are speaking for themselves and not for the agency (the Garcetti precedent).

But it undercuts that by suggesting that the press office should try to choose which EPA employees a reporter can interview, and try to chaperone the interview (a crude form of intimidation). The policy only applies to EPA scientists, not to other EPA employees.

But the policy, read plainly, also forbids political appointees from suppressing, distorting or interfering with the science. It also provides (together with some other, government-wide policies) channels through which employees can lodge complaints when the integrity of their science or their right to speech is being violated.

Such channels include the EPA’s Scientific Integrity Office, the EPA’s Office of Inspector General and the Office of Special Counsel.

Whether you are disclosing through channels, or disclosing anonymously to news media, it is wise to get experienced and confidential legal advice. Two organizations who offer it are the Government Accountability Project, or GAP, and Public Employees for Environmental Responsibility, otherwise known as PEER.

Reporter-source privilege

Once a source decides to leak, anonymity is hardly a given. Most journalists will try first to get their source “on the record.” But you as a source need not disclose anything until you have agreed on “ground rules” with the journalist.

Take the trouble to be clear about these before you identify yourself or provide sensitive information.

 

Once the reporter and source

have agreed on ground rules,

there should be a

bond of honor between them.

 

Generally, ground rules fall into these three broad categories:

• On the record. The source is identified by name and anything he or she says can be published by the journalist.
• On background. The source is not identified by name (but may be identified generically by position) and the information  provided can be quoted and cited.
• Off the record. The source is not identified and the journalist is not free to publish or use the information (unless it is obtained from another source).

There can be finer shadings of these three basic categories. The important thing is to agree clearly on the ground rules  before the source provides the information.

Once the reporter and source have agreed on ground rules, there should be a bond of honor between them. If a journalist has agreed to protect (not disclose) your identity,  he or she should keep that promise.

Your communications with them, as a source to a journalist, may be considered “privileged,” as are those between a doctor and patient, a lawyer and client, or a priest and penitent.

How much protection do shield laws offer?

The reporter-source privilege is protected by state law in most states — to varying degrees — but not in all.

In their strongest form, these “shield laws” mean that state prosecutors can not compel a journalist to disclose their source for a particular piece of information. In some states, protections are qualified or partial.

One of the best overviews of state and federal law related to reporter’s privilege is by the Reporters Committee for Freedom of the Press.

Most important from a federal agency source’s perspective: there is no federal shield law, despite efforts in past Congresses to pass one. That means federal prosecutors can subpoena a journalist, put them under oath, ask them to disclose a source and ask a judge to put them in jail if they refuse.

And some journalists have gone to jail (e.g., Vanessa Leggett and Judith Miller). But not all. To state the obvious: if you are thinking about leaking, you should only work with journalists you know and trust.

In one prominent recent case, federal prosecutors pressured Pulitzer-winning New York Times reporter James Risen to identify a source and he refused. It went to the Supreme Court and Risen still refused.

That case was ultimately resolved after the Obama Justice Department backed down and issued guidelines urging prosecutors to give reporters latitude and seek alternatives to compelled disclosure. But those guidelines had less than the full force of law and could be reversed by a subsequent administration.

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* From the weekly news magazine SEJournal Online, Vol. 2, No. 15. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here.  And see past issues of the SEJournal archived here.