Is the Whistleblower Protection Act Dead?

By Nick Schwellenbach, The Center for Public Integrity. Posted June 29, 2009.

A government whistleblower review board has upheld the firing of a federal air marshal for disclosing "sensitive security information," even though the information had not been marked as “sensitive” at the time. And in an ironic twist, the board’s decision was itself labeled "sensitive security information" and posted on a publicly accessible government website, due to a "computer glitch," the board says.

But the bigger issue is whether -- as whistleblower advocates claim -- the decision gives government agencies a powerful way to effectively evade protections that are supposed to be offered whistleblowers by the Whistleblower Protection Act.

The board -- which reviews whistleblower cases and whose full name is the Merit Systems Protection Board -- ruled Monday that disclosures of information labeled “sensitive security information” cannot be protected by the Whistleblower Protection Act, even if the information was not ruled to be sensitive until long after the whistleblower disclosed it. The ruling was in the case of fired air marshal Robert MacLean.

The board's reasoning, as explained in the decision, is that TSA's regulations define what's sensitive, and that MacLean should have realized the information he disclosed fit that category, whether it was explicitly labeled “sensitive” or not at the time. Chad Bungard, the board general counsel, said the decision “speaks for itself ... [it] was very thoughtfully and carefully considered.”

But on that point there’s considerable disagreement. Tom Devine of the Government Accountability Project, a non-profit group that represents whistleblowers, said in his view the MacLean decision means "the Whistleblower Protection Act is dead."

The idea that the information does not even have to be marked “sensitive” at the time of disclosure, Robert MacLean told Papertrail, will create a chilling effect among government employees because they won’t know what can be safely disclosed to the press or the public.

In the summer of 2003, MacLean disclosed to the press the Transportation Security Administration’s plan to curtail its deployment of air marshals on high-risk flights at a time of heightened terrorist warnings. Several members of Congress expressed outrage, and within days, the TSA rescinded its plan to cut back on coverage.

MacLean's disclosure was based on a text message he received on his cell phone that notified air marshals to cancel overnight stays at hotels, which occur in between air marshal coverage of long-distance flights, the ones deemed most likely to be hijacked. The message was not marked “sensitive security information”, protected with a password, or sent to MacLean's government-issued secure personal digital assistant, as TSA policy requires. The way the message was sent to MacLean “clearly didn’t match TSA’s policies” on how to transmit such sensitive information, admitted Doug Blair of TSA’s sensitive security information oversight office.

The Government Accountability Project says at the time of MacLean’s disclosure TSA “had not yet issued regulations prohibiting release of SSI.”

But MacLean was fired for disclosing that message because it was officially deemed “sensitive security information” years later by TSA as part of the process of firing him.

MacLean’s discovery Monday evening that the decision upholding his termination was posted online with the “sensitive security information” label felt surreal, he said.

The board and TSA both told PaperTrail there was really no sensitive information in the document announcing the termination. “I reviewed the decision before the Board posted the document,” said TSA's Blair. The board decision was posted in the late afternoon on Monday and taken down early on Tuesday morning, said Bungard, the board’s general counsel. “The agency marks documents with the label 'sensitive security information' if there is a possibility it contains SSI," said Bungard. “It does not contain SSI but it should not have been posted,” because the label was still on it, he said. It was reposted Tuesday afternoon without the SSI marking.

It may all sound like Alice in Wonderland, but critics say the accidental posting and mislabeling of the termination document illustrates real problems. "The board just demonstrated how arbitrary this marking is and apparently documents that are marked SSI may have no restricted information in them and other documents that are not marked may contained restricted info," said Steven Aftergood, an expert on government secrecy policy at the Federation of American Scientists. "The whole system is completely cockeyed."

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