Supplement to Congressional Testimony Clarifies Whistleblower Protections for Intelligence Community

On Tuesday, the House Committee on Oversight and Reform, Subcommittee on Government Operations held a bipartisan hearing to examine existing protections for government whistleblowers, specifically members of the Intelligence Community.

Whistleblower attorney David K. Colapinto, a partner at whistleblower law firm Kohn, Kohn & Colapinto, testified before the Subcommittee advocating for the following reforms:

Strengthen the federal whistleblower confidentiality provisions by clarifying the federal whistleblower statutes.

Strengthen the civil remedies provision of the Privacy Act.

Strengthen federal whistleblower protection by creating access to district courts and jury trials.

Create a permanent National Whistleblower Appreciation Day that mandates each federal agency and department to honor whistleblowers on July 30th and to recognize the importance of federal whistleblowing as a fundamental government policy.

During the hearing, issues impacting these recommended reforms were brought for discussion but were not fully answered. Mr. Colapinto addresses three points in his supplemental testimony.

The first is whether the whistleblower at the center of the Ukraine scandal is “a real whistleblower.” Mr. Colapinto explains that the whistleblower in question is, indisputably, legally protected by the Intelligence Community Whistleblower Protection Act, 50 USC. § 3234. He states that those alleging the whistleblower is not “a real whistleblower,” are merely attempting to justify publishing the whistleblower’s name, in violation of the laws’ confidentiality provision. These comments, Mr. Colapinto summarizes, “are reckless, flat wrong and unsupported” by the law. This rhetoric confuses and has a chilling impact on potential Intelligence Community whistleblowers.

Mr. Colapinto next addresses whether employees of contractors in the intelligence community have whistleblower protections. Rep. Thomas Massie asked DOJ Inspector General Horowitz during the hearing if this class of employees has protection. IG Horowitz could not answer the question with certainty. Mr. Colapinto explains in his supplemental testimony that these employees have protection under amendments to 50 USC. § 3234(c) that passed in January 2018. He suggests that “Every member of Congress and every Inspector General and all employees in the intelligence community,” receive notification of this provision of the law.

Finally, Mr. Colapinto expands on the Harvard Business Review study he mentioned in response to questions from Rep. John Sarbanes. In his answer, he said that the study found that “second hand” reports are more credible and valuable to investigators.

Mr. Colapinto’s supplemental testimony discusses this study in more detail. The study published three lessons learned from its analysis of more than 2 million whistleblower disclosures from over 1,000 companies. The lessons learned are:

More issues reported is a good thing

Secondhand reports are more credible and valuable

Reports with few details can be the starting point for something more

Mr. Colapinto also points out that “there is no requirement in any of the federal whistleblower statutes requiring that whistleblowers provide firsthand information in order to be protected. In fact, the only requirement to obtain legal protection is that whistleblowers make a disclosure of information that the employee ‘reasonably believes'” is evidence of a crime or fraud, waste, and abuse.

Additional information:

Read Mr. Colapinto’s Supplemental Testimony on Protections for Federal Whistleblowers

Watch the Hearing: Protecting Those Who Blow the Whistle on Government Wrongdoing