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'Whistleblowing' and 'Leaking' Explained

  • Wayne Lee

FILE - NSA whistleblower Edward Snowden speaks via videoconference at the "Virtual Conversation With Edward Snowden" during the 2014 SXSW Music, Film + Interactive Festival at the Austin Convention Center, March 10, 2014.

FILE - NSA whistleblower Edward Snowden speaks via videoconference at the "Virtual Conversation With Edward Snowden" during the 2014 SXSW Music, Film + Interactive Festival at the Austin Convention Center, March 10, 2014.

What is a leak?

A leak is generally a voluntary disclosure of classified information. The information is usually provided by an unidentified source whose objective is to make the information public.

When someone discloses information to the media, the Open School of Journalism describes the event as a “news leak.” The information can be leaked by various sources, including those associated with a government or a business.

“People have a variety of reasons for revealing information that they don't have the authority to give out, including concern about the public's right to know, to get a monetary reward or to embarrass someone or some group,” the school says.

Government workers occasionally leak information to warn of an impending event, or “to test the waters or to manipulate coverage of an event.”

Government or business leakers sometimes disclose information “to reveal things happening they consider wrong or not in the public interest.”

What's the difference between leakers and whistleblowers?

It is lawful for a whistleblower-leaker to disclose information confidentially or anonymously to any audience, including the media, if the information is not classified and/or its disclosure is not specifically prohibited by statute such as the Uniform Trade Secrets Act, according to the Government Accountability Project (GAP).

If the information is classified, it must go through secure designated channels.

Under those circumstances, there is no difference between leaker and whistleblower.

The difference comes when a leaker makes a disclosure that is illegal under federal statute or is disclosing classified information to the media.

Also, the inconsistency comes when a leaker discloses information deemed as political gossip or for political reasons, and is not evidence of government wrongdoing.

Instead of going through secure channels within the federal agency, "Some leakers are not lawfully disclosing their evidence of misconduct and sending classified information to the media and that is not included in legal definition under the [Whistleblower Protection Act of 2012],” GAP legislative director Tom Devine told VOA.

According to Timothy Garton Ash, author of “Free Speech: Ten Principles for a Connected World, “a whistleblower is someone who, seeing something that he or she regards as wrong happening inside an organization, pass on that information to others in the hope of exposing the wrongdoing.”

By contrast, leakers are “generally viewed either neutrally or more negatively,” according to Ash.

“The means used by leakers … are indistinguishable from those of the anonymous whistleblower, but the intentions are often found to be less high-minded. Whether the leak is from a part of government, a political party or a company, the leakers are as likely as not doing it to promote either the organization’s interests or those of a faction within it,” said Ash.

“Although leaking is ubiquitous in early-twenty-first-century politics and business, and many journalists would be lost without it, few impute noble motives to the leakers,” Ash continues. “And sometimes leaking is the hallmark of outright villainy."

The difference between a leaker and a whistleblower is important, according to Matthew Miller, former director of Public Affairs at the Department of Justice. Miller says leaks of secret information can “endanger American soldiers and intelligence officers.”

Whistleblowers, he says, “expose violations of law, abuse of authority, or a substantial and specific threat to public health or safety.”

What laws protect federal employees who leak classified information?

U.S. federal laws encourage federal workers and employees of federal contractors to disclose misconduct and other wrongful acts. The laws also protect whistleblowers from retribution.

The Whistleblower Protection Enhancement Act of 2012 directs Inspectors General (OIG) how to manage acts of whistleblowing, according to the U.S. Office of Personnel Management (OPM). OPM cautions, however, that OIG staff are “prohibited from acting as legal representative, agent, or advocate for whistleblowers, and cannot provide legal advice or counsel.”

Those who are aware of wrongdoing should report it to the OPM OIG Hotline at 877-499-7295.

The Act includes further protection of whistleblowers by prohibiting federal agencies from “issuing or enforcing nondisclosure agreements, policies or forms” that do not contain the following statement:

"These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling."

Presidential Policy Directive 19 prohibits whistleblower retaliation in a way that impacts an employee’s eligibility for access to classified information.

The Office of Special Counsel (OSC) investigates and prosecutes allegations of banned personnel practices with a focus on protecting federal whistleblowers. Information on how the OSC may help resolve whistleblower retaliation complaints can be found on their website.

The U.S. Occupational Safety and Health Administration (OSHA) enforces the provisions of more than 20 whistleblower laws that protect employees who report workplace violations pertaining, but not limited to, safety and health activities, work-related injuries and illness or fatality. Details are available on the OSHA’s whistleblower website.

The National Defense Authorization Act of 2013 offers whistleblower protection to employees of federal contractors. Complaints can be submitted through the OIG Hotline or by calling 877-499-7295.

The Uniform Trade Secrets Act (USTA) provides a legal framework to better protect trade secrets for U.S. companies operating in multiple states. USTA had been enacted by 47 states, the District of Columbia, Puerto Rico and the U.S. Virgin Islands as of May 2013.

Congressmen Ted W. Lieu and Don Beyer recently published a resource guide for federal workers who want to “break the Administration’s communications blackout on federal agencies.” A link to the guide can be found here.

When can a whistleblower or leaker be held responsible?

“Whistleblowers proceed at their own risk if they make unprotected disclosures of information, i.e., without a reasonable belief that they’re evidencing illegality, gross waste, gross mismanagement, abuse of authority, or a substantial and specific danger to public health or safety,” said Devine. Under those circumstances, federal agency disclosure restraints or secrecy rules “could be enforced to punish them.”

Devine says even if whistleblowers have a reasonable belief, they proceed at their own risk when they lawfully disclose classified information or information “whose disclosure is specifically barred statute.” The risk is mitigated when whistleblowers make disclosures to an employee designated by the agency chief, the relevant Office of Inspector General, or the U.S. Office of Special Counsel.

Are federal inspectors general independent?

Inspectors General are independent, says the Council of Inspectors General on Integrity and Efficiency. While they are under the general supervision of the agency’s leadership, leadership cannot “prevent or prohibit” an IG from conducting an “audit or investigation.” Details are available on the Council’s website, including a directory of Inspectors General.





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