RULE 2

Be Confidential

See Rules 17-22 discussing different levels of confidentiality under various reward laws.

Introduction

Why expose yourself as the center of attention in the news when you can blow the whistle confidentiality and/or anonymously? Modern whistleblower laws encourage a greater number of whistleblowers to report their concerns, which safeguards them from employer retaliation. Choosing to report misconduct increases the likelihood of a successful case, while minimizing risks to your career, finances, and overall well-being. Allow government regulators to take on the burden of investigation on your behalf.

Stephen Kohn, a renowned author on the subject, has observed the positive effects of such confidentiality provisions. In Rules for Whistleblowers, Kohn delves into the significance and success of these provisions, specifically highlighting their importance.

How Can I Request Anonymity?

As of publication, the Department of Transportation (auto safety) and Department of Treasury (money laundering) have not published procedures for making anonymous filings.

However, when using these laws a whistleblower should reference the laws and explicitly request anonymity. Whistleblowers should also request that the agency involved explain what they have to do to maintain full confidentiality and anonymity.

If the Securities and Exchange Commission (Dodd-Frank/FCPA), Commodity Exchange Commission (Dodd-Frank), Department of Transportation (auto safety) and/or the Department of Treasury (money laundering) refer a whistleblower claim to another federal law enforcement or regulatory agency, those agencies are supposed to honor the confidentiality and anonymity requirements mandated under the whistleblower laws.

But these types of referrals, for a variety of reasons, often do not occur. Regardless, whistleblowers should request that referrals made to sister law enforcement or regulatory agencies be transferred pursuant to the confidentiality requirements set forth in the law.

Because there is no uniform federal law protecting the identity of a whistleblower, whistleblowers need to exercise due care in securing the highest level of protection available under law, or within the discretion of the agencies.

The best method to maintain strict confidentiality is to have one of the four agencies identified above refer the whistleblower’s information to a federal agency under the strict confidentiality rules mandated under Dodd-Frank, the AML and the auto safety laws.

Other Whistleblower Laws

The False Claims Act requires that complaints be filed under “seal,” and that the defendants not be informed that there is a whistleblower or that a complaint was filed. See 31 U.S.C. § 3730(b)(2). This affords a whistleblower confidentiality during the investigation of their case, but after the investigation is concluded the seal is lifted and the identity of the whistleblower can be revealed. The Inspector General Act, located at Public Law 95-452 (as amended), requires that the IGs protect the confidentiality of federal employees.

Similarly, the U.S. Office of Special Counsel has strict confidentiality rules protecting sources pursuant to the Whistleblower Protection Act, 5 U.S.C. § 1213.

A whistleblower should also consider requesting confidential informant status whenever he or she is providing any information to law enforcement. The Attorney General’s guidelines for CI status.

Cases discussing the problems encountered by employees who are not confidential: Management Information Technologies v. Alyeska Pipeline, 151 F.R.D. 478 (D.D.C. 1993); Halliburton v. ARB, 771 F.3d 254 (5th Cir. 2014) (explaining adverse consequences that follow an employee being “outed” as a whistleblower).

Resources

The rule for proceeding confidentially and anonymously under the Commodity Exchange Act is located at:

17 C.F.R. 165.4

The rule for proceeding confidentially and anonymously under the Securities Exchange Act (and also the Foreign Corrupt Practices Act) is located at:

17 C.F.R. § 240.21F-7.

The confidentiality rules at the IRS Office of the Whistleblower are located at:

29 C.F.R. § 301.6103(h)(4)-1(e)

The IRS Whistleblower Office is required to protect the confidentiality of whistleblowers to the “fullest extent permitted by the law”:

Internal Revenue Manual § 25.2.2.10.

Both the Motor Vehicle Safety, 49 U.S.C. § 30172(f) and Money Laundering laws, 31 U.S.C. § 5323(g)(4), also permit anonymous and confidential filings in a manner identical to the SEC and CFTC.

Practice Tips

Cases recognizing the need for whistleblowers to remain confidential:

Management Information Technologies v. Alyeska Pipeline, 151 F.R.D. 478 (D.D.C. 1993) (hardships faced by whistleblowers whose identities are revealed).
Whistleblower 14106-10W v. Commissioner, 137 Tax Court No. 15 (2011) (standard for proceeding anonymously in Tax Court).
Montgomery v. IRS, Case No. 21-5168 (D.C. Cir. Jul. 19, 2022) (case finding that IRS not required to disclose any information about a tax whistleblower case under the Freedom of Information Act).

Administrative procedures for filing anonymous or confidential reward claims.

Securities and Exchange Commission, 17 C.F.R. § 240.21F-7 and 21F-9(a).
Commodity Futures Trading Commission, 17 C.F.R. 165.3(c), 165.4, and 165.7(c).
Internal Revenue Service, Internal Revenue Manual, Section 25.2.1.5.4.

Frequently Asked Questions

Related Rules

RULE 32
Your Disclosures Must be Protected Under Law
Read More
RULE 31
Winning a Case
Read More

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