A bill sponsored by Sen. Patrick Leahy, D-Vt., aiming to protect federal employees from retaliation in response to seeking public records would be a welcome addition to existing whistleblower protection laws, but advocates say those laws are weak to begin with.
Leahy’s office announced Tuesday that he and House Reps. Carolyn Maloney, D-New York, and Gerald Connolly, D-Virginia, have introduced the Federal Employee Access to Information Act to protect federal employees from reprisal when they use the Freedom of Information Act (FOIA).
“All Americans, including federal employees, have the right to file Freedom of Information Act requests and know what their government is doing,” Leahy stated in a news release. “FOIA is a critical tool for exposing government wrongdoing, and federal employees should never be terminated or retaliated against for availing themselves of our nation’s premier transparency law.”
Liz Hempowicz, policy director at Project on Government Oversight, which describes itself on its website as a “nonpartisan independent watchdog” that investigates government waste and corruption, said Wednesday that Leahy has long been a defender of the FOIA process, which anyone can use to obtain public records.
Many government whistleblowers use it, too, she said.
“Anecdotally, from our perspective, we have certainly heard from whistleblowers who in the process of trying to avail themselves of the legal protections they should be afforded as whistleblowers have had to use the FOIA process to get information out of the government, and who then felt like they were additionally retaliated against for using the FOIA process to get information,” she said.
She said the bill Leahy has sponsored in the Senate is an amendment to the Whistleblower Protection Enhancement Act. Most pieces of legislation these days end up being bundled with other laws and rarely pass on their own and that would likely be the case here if it ever moves forward.
Hempowicz said her group has heard from whistleblowers about experiencing retaliation for calling out wrongdoing or investigating it. The law shields them from specific activities such as being fired, suspended or reassigned after they acquire whistleblower status, but there are loopholes.
“The whistleblower protection laws in our country are, as they apply to federal employees in particular, incredibly weak,” said Hempowicz. “Even when the laws are strong on paper, they’re very difficult to enforce.”
The whistleblower laws do little to prevent retaliation and are instead aimed at making a whistleblower whole again after they’ve been retaliated against. This is a long, expensive legal process and it’s difficult for people to benefit from it.
That difficulty, she said, is also why it’s hard to abuse from the employee perspective. The whistleblowing activity has to occur before the alleged retaliation, and if a federal employer can cite legitimate reasons for a termination, suspension or reassignment, then there’s little recourse.
“The system is set up in a way that it’s hard to prevail, even when the law is on your side,” she said.
According to Leahy’s office, he’s also cosponsoring a bill, the Congressional Whistleblower Protection Act, which Sen. Dianne Feinstein, D-California, intends to put forward. The legislation would provide remedies and protections for taxpayer-funded employees and applicants for employment whose right to share information with Congress has been tampered with.