Understanding Your Right to Confidentiality as a Federal Whistleblower

Learn About the Federal Laws that Protect Whistleblowers’ Identities

Individuals who blow the whistle on fraud, waste, abuses of authority, substantial and specific danger to public health or safety, and other forms of wrongdoing are entitled to federal whistleblower confidentiality under federal law. There are several whistleblower statutes; and, while these statutes differ in many respects, one thing they share in common is the inclusion of safety protections for whistleblowers’ identities.

While federal employee whistleblowers can remain completely anonymous in many cases, there are limited circumstances in which the government may be required to disclose a whistleblower’s identity. Here, the whistleblower lawyers at Oberheiden P.C. discuss the federal government’s commitment to protecting whistleblowers’ identities, the specific statutory provisions that apply, and when disclosure of a federal whistleblower’s identity may be required.

The Federal Government’s Commitment to Protecting Whistleblowers’ Identities

Several federal agencies accept whistleblower complaints. As a prospective federal employee responsible for blowing the whistle, determining where you need to file your complaint is one of the first steps toward coming forward. But, regardless of which law enforcement agency you need to contact (or if you need to file a complaint under the False Claims Act in federal court), the agency handling your complaint will be committed to protecting your identity to the fullest extent possible.

Here are some examples of what these agencies have to say about protecting whistleblowers’ identities:

• Commodity Futures Trading Commission (CFTC):1 “The Commission is committed to protecting whistleblowers’ identities. As a general rule, the Commission treats information learned during the course of an investigation, including the identity of sources, as non-public and confidential.”
• Securities and Exchange Commission (SEC):2 “[T]he SEC treats all tips, complaints and referrals as confidential and nonpublic, and does not disclose such information to third parties, except in limited circumstances authorized by statute, rule, or other provisions of law. . . . [I]f you choose to submit your information anonymously . . . you must be represented by, and provide contact information for, an attorney in connection with your submission.”
• Internal Revenue Service (IRS):3 “The IRS takes the protection of whistleblower identity very seriously. We protect against the disclosure of a whistleblower’s identity, and even the fact that they have provided information, to the maximum extent that the law allows.”
• Office of Personnel Management Office of the Inspector General (OPM OIG):4 “The OIG is prohibited from disclosing an employee’s identity without the employee’s consent unless the OIG determines that such disclosure is unavoidable or is compelled by court order.”

Similarly, the U.S. House of Representatives’ Office of the Whistleblower Ombuds states: “The Code of Official Conduct for the House, as amended in the 117th Congress, mandates the protection of whistleblower confidentiality. . . . The[se] measures . . . are intended to protect the whistleblower’s information, as well as the security of Congress’ investigative and oversight work.” Along with filing whistleblower complaints with federal agencies and in the federal courts, filing a complaint with Congress is also an option in some cases.

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Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester

Former U.S. Attorney

Hon. Kevin McCarthy

55th Speaker, U.S. House of Representatives (ret.)

Government Consultant

Mike Pompeo

Of Counsel

Former U.S. Secretary of State

John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara

Federal Appeals Attorney

Nicholas B. Johnson

Former Prosecutor

Roger Bach

Former Special Agent (DOJ)

Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen

Former Supervisory Special Agent (FBI)

Statutory Confidentiality Protections for Federal Whistleblowers

As we mentioned above, there are several federal whistleblower statutes, all of which include confidentiality protections for those who choose to come forward. If you choose to serve as a federal whistleblower, the statute under which you need to file will depend on your employer (i.e., whether you work for the federal government or in the private sector), the information you have in your possession, and other law enforcement agency factors. Whistleblowers are also authorized under the Whistleblower Protection act to pursue a corrective action before the Merit Systems Protection Board if desired, and protections make it illegal to discriminate against contractors, subcontractors, grantees, and personal services contractors for making a protected disclosure. Here are some examples of the applicable statutory protections:

False Claims Act (FCA)

Under the False Claims Act (FCA), whistleblowers who file qui tam complaints to expose fraud, waste, and abuse under federal contracts, grants, and programs are entitled to have their complaints kept “under seal.” While it is possible for court records to become unsealed, whistleblowers can file to keep their identities kept under seal indefinitely.

Foreign Corrupt Practices Act (FCPA)

Under the Foreign Corrupt Practices Act (FCPA), whistleblowers who disclose bribes and other corrupt activities involving government officials can choose to file confidentially or anonymously. When reporting corrupt activities under the FCPA confidentially, whistleblowers are entitled to have their identities withheld from all public filings.

Securities Exchange Act of 1934

The Securities Exchange Act entitles whistleblowers to strict confidentiality of their identities if they do not choose to remain anonymous. Additionally, SEC Rule 21F-7 makes clear that the commission may “not disclose information that could reasonably be expected to reveal the identity of a whistleblower.”

Whistleblower Protection Act (WPA)

The Whistleblower Protection Act (WPA) applies to federal employees and certain federal contractors. Under the WPA, federal agencies must protect whistleblowers’ identities unless they consent to disclosure. Additionally, under the Privacy Act of 1974, federal agencies are prohibited from disclosing government employees’ identities without their consent, and individuals who violate the Privacy Act of 1974 can face civil or criminal penalties.

Again, these are just examples. All federal whistleblower statutes include confidentiality provisions; and, when you work with the federal whistleblower lawyers at Oberheiden P.C., we will rely on our extensive experience—including experience inside of the federal government—to protect your identity to the fullest extent possible.

When the Federal Government May Be Required to Disclose a Whistleblower’s Identity

There are certain circumstances in which federal agencies may be required to disclose a whistleblower’s identity. However, these circumstances are both limited and rare. Generally, a federal agency may only be required to disclose a whistleblower’s identity by court order, and only when there are no applicable statutory provisions that restrict the court’s ability to mandate disclosure.

For example, the CFTC explains that it may disclose whistleblowers’ identities in two circumstances:

• “When disclosure is required to a defendant or respondent in connection with a public proceeding that the Commission institutes or in another public proceeding that is filed by other governmental or regulatory entities to which the Commission provides the information, as described below;
• “When the Commission determines that there are appropriate circumstances, it may provide whistleblower information to certain governmental or regulatory entities, subject to the information remaining confidential information.”

Other agencies generally take a similar approach, and you can see this from some of the quotes above. When we represent federal whistleblowers, protecting our clients’ identities is always among our top priorities, and we leverage all available statutory protections to maintain our clients’ confidentiality as long as possible—which means that our clients’ identities are protected permanently in most cases.

FAQs: Protecting Your Identity as a Federal Whistleblower