Whistleblower Confidentiality

Confidentiality provisions for whistleblowers vary from law to law as well as from public to private sector.

Individuals who come forward with evidence of fraud or wrongdoing at a company or organization may find themselves retaliated against for their disclosures. According to a study from the Bradley University Center for Cybersecurity, nearly two thirds of the whistleblowers surveyed experienced some form of retaliation including termination, forced retirement, negative performance evaluation, social ostracism and blacklisting from other jobs in their field. The best way for a whistleblower to prevent retaliation is to remain anonymous. If your company does not know who you are, it will be harder for them to retaliate.

Whistleblower lawyers at the National Whistleblower Center (NWC) and the National Whistleblower Legal Defense and Education Fund (NWLDEF), the public interest law firm partnered with NWC, recommend that you stay confidential and find representation before you blow the whistle as the best way to guarantee confidentiality is to file a whistleblower claim under a law that provides confidentiality protections. NWC co-founder and board chairman, Stephen M. Kohn, stressed the importance of confidentiality provisions in a 2020 letter to Attorney General William Barr:

“Confidentiality is a critical issue for whistleblowers. It is our experience that most employees will be afraid to blow the whistle unless they know that their identity will be protected.”

Employees, both private and public, can turn to various U.S. laws and federal agencies in order to secure confidentiality protections and retain their anonymity. Under certain laws, anonymous whistleblowers are even able to apply for and obtain rewards for their disclosures. The U.S. Securities and Exchange Commission (SEC), for example, will strictly protect whistleblower confidentiality when issuing awards.

Whistleblowers should seek and obtain confidential informant status whenever that is available as remaining anonymous may be a whistleblower’s best tool in preventing retaliation. However, it’s important to note that many whistleblowers may jeopardize their chance to report wrongdoing anonymously even before reporting due to lapses in cybersecurity. Read our cybersecurity best practices for whistleblowers to learn more.

Confidentiality Protections for Federal Employee Whistleblowers

In the public sector, federal employees can confidentially disclose allegations of misconduct to the appropriate authorities through the Whistleblower Protection Act (WPA) and the Inspector General Act. Both of these acts state that a whistleblower’s identity must be protected unless the employee in the disclosure consents to revealing their identity.

Additionally, both the WPA and the Inspector General Acts safeguard whistleblowers from retaliation. Under the WPA, federal civil servants can confidentially make protected disclosures with the Office of Special Counsel, which is authorized to investigate retaliation allegations and represent whistleblowers in cases against other departments. Further, the WPA authorizes whistleblowers to pursue a “right of action” wherein they can seek corrective action before the Merit Systems Protection Board if they so choose. Alternatively, the Inspector General Act prohibits any employee with authority to dictate personnel actions to take or threaten to take any action against an employee in retaliation for disclosing information to an Inspector General.

Confidentiality protections are not only found within whistleblower protection laws. Additional government-wide laws apply to whistleblower disclosures and complaints, such as the Privacy Act of 1974, which prevents the disclosure of personal information of a government employee without their consent. The specific clause, 5 U.S.C. §552a, prohibits any government or agency official, even the President, from releasing the identity of an employee. These provisions apply to all whistleblower disclosures and complaints, and if violated, civil and criminal penalties may apply to the violator of the act.

For employees working within the intelligence community, separate laws administered by the Intelligence Community Inspector Generals (ICIG) alongside presidential directives authorize the Inspector General Act to protect their confidentiality. As intelligence community employees frequently come in contact with classified and top-secret materials, different laws govern their confidentiality. While the WPA does not directly protect intelligence community whistleblowers, the Inspector General Act does following amendments from the Intelligence Community Whistleblower Protection Act (ICWPA). Therefore, IC whistleblowers may use the Inspector General Act to make confidential disclosures wherein the ICIG is prohibited from disclosing the identity of a whistleblower unless it is determined that such a disclosure is unavoidable. To learn more about intelligence community employee confidentiality, visit our webpage on protections for intelligence community whistleblowers.

Confidentiality Protections for Private Sector Whistleblowers

For whistleblowers in the private sector, different laws apply depending on the industry at hand and the type of fraud being reported. Several federal laws and agencies permit whistleblowers to make protected, confidential disclosures and receive rewards.

False Claims Act Whistleblower Protections

When submitting claims of fraud on behalf of the government, also known as qui tam lawsuits, whistleblowers may confidentially submit complaints under the False Claims Act. While the FCA does not have an explicit provision that protects anonymity, any disclosure made will be filed “under seal,” in secret and out of public eye. Eventually, the court may unseal the document potentially exposing a whistleblower’s identity; however, a whistleblower’s lawyer may move to keep the case permanently under seal.

Foreign Corrupt Practices Act Whistleblower Protections

Under the Foreign Corrupt Practices Act (FCPA) whistleblower provision, the whistleblower’s role in the exposure and report of illegal payments and bribes must be kept confidential and will not be directly referenced in public decisions or in the SEC’s reward rulings. Whistleblowers who make anonymous disclosures will have their identities protected. If a confidential informant makes a disclosure and a prosecution is made, the informant’s role will also be kept secret.

Securities and Exchange Commission Whistleblower Protections

One of the most successful whistleblower programs with more than $380 million awarded to whistleblowers since its creation in 2012 under the Dodd-Frank Act is the SEC’s Office of the Whistleblower. The SEC allows whistleblowers to make confidential submissions of possible securities fraud and provides monetary awards to eligible whistleblowers who provide information that leads to a successful enforcement action.

Under the SEC’s Rule 21F-7, the SEC is committed to protecting the identities of whistleblowers making disclosures. The rules states that the SEC is required to “not disclose information that could reasonably be expected to reveal the identity of a whistleblower.” Further, it states that individuals can submit information anonymously as long as an attorney is present to represent them, only needing to disclose their identity if a reward is issued.

The SEC notes that only in certain situations will an individual’s identity need to be disclosed, such as a disclosure is required in connection with a federal court or administrative action or in the midst of an investigation to protect investors. However, the appropriate regulatory authorities for such an investigation will be subject to confidentiality requirements under Section 21F(h) of the Exchange Act (15 U.S.C. 78u-6(h)), noted above.

Additionally, the SEC has issued sanctions against companies that have attempted to identify confidential whistleblowers in violation of the whistleblower protection provisions within the Exchange Act.

Commodities Future Trading Commission Whistleblower Protections

Whistleblowers with information regarding commodities fraud and violations of the Commodity Exchange Act may rely upon the CFTC’s whistleblower program, created by the Dodd-Frank Act, for protection. The CFTC holds that it will not identity a whistleblower without the whistleblower’s consent. Such information provided by a whistleblower will be treated as non-public and confidential by the CFTC. Further, a whistleblower may anonymously submit information as well, as enumerated in Section 165.4 of the Whistleblower Rules.

Like the SEC’s rules, the CFTC will only disclose a whistleblower’s identity in certain circumstances in accordance with the Privacy Act and as authorized by the Commodity Exchange Act. Under Section 23(h)(2) of the Commodity Exchange Act, it states that “the Commission, and any officer of employee of the Commission, shall not disclose any information, including information provided by a whistleblower to the Commission, which could reasonably be expected to reveal the identity of a whistleblower…” The instances listed may be when a disclosure is required in connection with a public proceeding that the CFTC institutes or is filed by other governmental or regulatory entities. Additionally, the CFTC may provide whistleblower information to certain governmental or regulatory entities, subject to the information remaining confidential as deemed appropriate by the CFTC.

Internal Revenue Service Whistleblower Protections

The IRS tax whistleblower law and the IRS criminal division that investigates these crimes do not permit anonymous filings by whistleblowers. However, according to the IRS website, it will protect the identity of the whistleblower to the fullest extent permitted under the law. Once a claim is submitted, the whistleblower will only be able to know the status of the claim, but not the action taken in the case by the IRS. In only certain circumstances wherein it may not be possible to pursue the investigation without revealing the whistleblower’s identity will the IRS choose to do so.

Accordingly, the U.S. Treasury Department, the IRS’ parent agency, provides under Treas. Reg. § 301.7623-1(e) that “the IRS will use its best efforts to protect the identity of whistleblowers.”

Further Whistleblower Confidentiality Protections

Many federal courts have made strides in guaranteeing whistleblower confidentiality protections. In 2019, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the right of whistleblowers to remain anonymous when filing a court case. This decision sets precedent for whistleblowers, including appeals in Dodd-Frank Act cases and FCPA violations.

Additionally, in 2008, a complaint filed under the whistleblower provision of the Sarbanes-Oxley Act culminated in a court finding that breaching an employee’s right of confidentiality can constitute as an adverse action. The U.S. Court of Appeals for the Fifth Circuit decided that revealing the identity of a whistleblower constitutes an adverse personnel action, giving rise to damages. Following this case, the Administrative Review Board of the Department of Labor found that the whistleblower had been retaliated against.

Finally, the disclosure of a whistleblower’s identity, or the identity of a confidential informant, could constitute as obstruction of justice under 18 USCS § 1513(e). Thus, whistleblowers have another avenue to protect their confidentiality as set out in U.S. federal law.

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