Sunday Read: Freedom of Information Act and Whistleblower Rights

This overview of how whistleblowers can use FOIA was sent as part of NWC’s Sunday Reading series that aims to educate supporters about specific whistleblower issues. For more information like this, please join our mailing list.

March 16 marked Freedom of Information Day, a day during Sunshine Week which specifically celebrates the Freedom of Information Act (FOIA) and the key role it plays in promoting effective governance.

To celebrate Sunshine Week, Project on Government Oversight and others collaborated with NWC to present an engaging Twitter Space audio discussion on FOIA, available until April 15. And, now we present in depth information on how FOIA can be used to help whistleblowers win and ensure that whistleblower programs work.

What is FOIA?

FOIA is a critical tool for individual whistleblowers, allowing them to obtain government information related to their claims. It can also be used by whistleblower advocacy organizations, government transparency groups, and the news media to unearth information related to whistleblower issues and can help build upon disclosures initially made by whistleblowers to reveal fraud, corruption, and other wrongdoing.

In celebration of Freedom of Information Day and Sunshine Week, today’s Sunday Reading will discuss the FOIA statute and how it can be used by whistleblowers to uncover various types of wrongdoing.

Since 1967, FOIA is intended to increase government transparency by allowing the public to access records in the government’s possession. Federal agencies are required to disclose any information contained in a FOIA request so long as it does not fall under one of the statute’s nine exemptions, which includes, among others, matters relating to national security, personal privacy, privileged information.

The statute is often viewed as a source of information for journalists investigating questionable government practices. However, it is also a critical resource for whistleblowers, and those advocating on their behalf, that allows for the discovery of information that is key to a successful whistleblower claim.

How FOIA Helps Whistleblowers Win:

First, many whistleblower laws require whistleblowers to initially file complaints with certain federal agencies, rather than in court. The Department of Labor (DOL), for instance, oversees numerous whistleblower laws that prohibit retaliation by employers in different employment sectors. Whistleblowers who claim unlawful retaliation under anti-money laundering, food safety, nuclear safety, and environmental protection statutes must first file a claim with the Occupational Safety and Health Administration (OSHA), which is an agency housed within the DOL. OSHA will then conduct an investigation into the whistleblower’s employment-related claims.

A whistleblower can use a FOIA request to obtain information relating to the investigation that can help his or her case. This is because the OSHA investigators often create a very useful evidentiary record, which can include witness statements, letters from employers that lock-in their justification for an adverse action, and evidence relied upon by the company to justify its actions. Obtaining these materials through a FOIA request can be very useful in understanding an employer’s case. The information obtained from OSHA is often used to cross examine company witnesses, who often change their story as cases progress.

Additionally, once a whistleblower makes an allegation of wrongdoing, other organizations can use FOIA requests to unearth government information that builds upon the whistleblower’s claims. Various government workers in the Environmental Protection Agency (EPA), for example, alleged that they were retaliated against for reporting unlawful spending and management practices by former EPA Administrator Scott Pruitt.

After the whistleblower claims were brought to light, various organizations, including the Sierra Club, used FOIA to request information from EPA related to the whistleblowers’ allegations. After the EPA failed to meet the deadline for producing FOIA requests, the EPA was forced to release tens of thousands of pages of internal documents that confirmed and expanded on existing reports and EPA whistleblowers’ disclosures. These FOIA responses galvanized widespread public pressure and criticism, drawing attention not only to Pruitt’s wasteful spending practices — including withholding a calendar of his appearances, not holding press conferences, refusing public questioning at speaking engagements, and even dividing event guests into “friendly” and “unfriendly” groups.

Without the critical information discovered through FOIA, the EPA whistleblowers’ claims, which revealed substantial corruption at the highest levels of government, might have gone unaddressed.

How FOIA Helps Ensure Whistleblower Programs Work:

FOIA requests can be used to reveal information as to how whistleblower laws and other regulatory regimes are being enforced. This in turn can galvanize public support for strengthening existing whistleblower laws. A notable example is a 2018 Government Accountability Office report that revealed substantial deficiencies in the U.S. Fish and Wildlife Service’s (USFWS) whistleblower program which contributed to the underenforcement of wildlife protection statutes. In response to the report, USWFW pledged to amend its whistleblower program to incentivize more people to come forward. However, it never publicly released its updated regulations meaning that potential whistleblowers were left in the dark. The new regulations were ultimately published only because of a FOIA request by Whistleblower Network News.

U.S. whistleblower laws are enforced by federal agencies, and FOIA is a critical mechanism for uncovering information concerning how these agencies are actually carrying out their enforcement duties.

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