The new administration’s recent decree that certain federal agencies refrain from communications with the media sets up a showdown between the executive and judicial branches of government.
The amended WPA includes an anti-gag provision which specifically provides that federal agencies cannot muzzle would-be whistleblowers through confidentiality and non-disclosure agreements.
While whistleblower protections, rights and remedies expanded dramatically in the private sector during the Obama administration, the same cannot be said for whistleblowers in the public sector, many of whom (like Chelsea Manning) faced dismissal or even jail time for disclosing “state secrets” by blowing the whistle. This prompted Congress, in 2012, to strengthen protections for federal employees by amending the Whistleblower Protection Act (WPA). The amended WPA includes an anti-gag provision which specifically provides that federal agencies cannot muzzle would-be whistleblowers through confidentiality and non-disclosure agreements.
As one of its earliest actions, the new administration ordered media blackouts at a number of federal agencies including the Environmental Protection Agency (EPA). This move set up a showdown between the administration and those who enforce the WPA; just yesterday, the Office of Special Counsel (OSC) issued a press release undoubtedly in response to the new administration’s media blackout order which expressly underscored that federal employees have concrete statutory rights to blow the whistle. While the OSC press release did not directly reference the new administration’s media blackout order, it speaks in broad terms about how “prohibited practices” under the WPA include “any effort to ‘distort, misrepresent [or] suppress’ any information which a federal employee reasonably believes could ‘pose a significant threat to public health or safety or constitute a violation of law, rule or regulation.’”
It remains as yet unclear how the new administration will address whistleblower protections in the private sector; it seems evident, however, that whistleblower protection in the public sector is likely to continue to be mired in a conflict between the priorities of the executive branch of government and the directives of the legislative and judicial branches as contained in the WPA.