Federal Employee Protection of Disclosures Act

Bill: 108-s-2628
Sponsor: Sen. Akaka, Daniel K. [D-HI]
Introduced: 2004-07-08 in the Senate
Policy area: Government Operations and Politics
Subjects: Administrative remedies
Appellate courts
Armed Forces and National Security
Civil actions and liability
Classified defense information
Congress
Congressional investigations
Congressional oversight
Congressional witnesses
Disciplining of employees
Dismissal of employees
Due process of law
Economics and Public Finance
Employee rights
Evidence (Law)
Executive orders
Federal employees
Government attorneys
Government paperwork
Governmental investigations
Information leaking
Infrastructure
Infrastructure (Economics)
Inspectors general
Judicial review
Jurisdiction
Labor and Employment
Law
Legal fees
Merit Systems Protection Board
Office of Special Counsel
Parties to actions
Personnel management
Promotions
Security clearances
Security measures
Waste in government spending
Whistle blowing

Summary:
action_date: 2004-07-08
text: 
 
 
 
 
 
 
 
 
 
Federal Employee Protection of Disclosures Act - Includes as a protected disclosure by a Federal employee: (1) any lawful disclosure an employee or applicant reasonably believes is credible evidence of waste, abuse, or gross mismanagement, without restriction as to time, place, form, motive, context, or prior disclosure; and (2) the disclosure of information required to be kept secret in the interest of national defense or the conduct of foreign affairs that the employee or applicant reasonably believes is direct evidence of waste, abuse, or gross mismanagement if such disclosure is made to a Member or employee of Congress who is authorized to receive information of the type disclosed. 
Sets forth provisions concerning review and appeal of actions concerning such disclosures. 
Amends the Homeland Security Act of 2002 to provide that, for purposes of provisions regarding the protection of voluntarily shared critical infrastructure information, a permissible use of independently obtained critical infrastructure information includes any lawful disclosure an employee or applicant reasonably believes is credible evidence of waste, fraud, abuse, or gross mismanagement, without restriction as to time, place, form, motive, context, or prior disclosure. 
Requires agencies to inform employees on how to make a lawful disclosure of information.
action_date: 2004-10-08
text: 

(This measure has not been amended since it was introduced. The summary has been expanded because action occurred on the measure.)

 
Federal Employee Protection of Disclosures Act - Revises the definition of protected employee disclosures (whistleblowing) to include: (1) any lawful disclosure without restriction to time, place, form, motive, context, or prior disclosure; and (2) formal or informal communications or transmissions. Excludes from such definition disclosures pertaining to policy decisions that lawfully exercise discretionary authority unless the disclosing employee reasonably believes that there is evidence of a violation of law or government waste, fraud, or abuse. Protects certain disclosures involving classified information to Members of Congress and congressional employees who are authorized to receive classified information. Provides for employee discipline for disclosures to congressional employees who are not authorized to receive such information.
 
Codifies the legal standard for determining whether a whistleblower has a reasonable belief that a disclosure evidences governmental waste, fraud, or abuse, or a violation of law. 
 
Provides that the following actions may not be taken against whistleblowers for protected disclosures: (1) the implementation or enforcement of any nondisclosure policy, form, or agreement; (2) a security clearance suspension or revocation; and (3) an investigation (other than routine nondiscretionary agency investigations) of an employee or applicant for employment.
 
Authorizes the Merit Systems Protection Board (MSPB) to conduct an expedited review of cases charging retaliation for whistleblowing when the whistleblower's security clearance or access determination is suspended, revoked, or otherwise adversely affected. Requires an agency that improperly revokes a whistleblower's security clearance to report to Congress explaining its actions. Exempts an agency from this requirement if the agency can show by a preponderance of the evidence (currently, clear and convincing evidence required) that it would have taken the same personnel action in the absence of the whistleblower disclosure. 
 
Authorizes the President to exclude certain agencies engaged in the conduct of foreign intelligence or counterintelligence activities from whistleblower protections if such exclusion is made prior to any personnel action against the whistleblower. 
 
Expands the authority of the MSPB to impose disciplinary action for prohibited personnel practices.
 
Authorizes the Office of Special Counsel to appear as amicus curiae (friend of the court) in any civil action involving whistleblowers and the Hatch Act.
 
Allows petitions for review of whistleblower actions to be filed in any Federal Court of Appeals of competent jurisdiction (currently limited to the U.S. Court of Appeals for the Federal Circuit), for five years after the date of enactment of this Act.
 
Requires all Federal agency nondisclosure policies, forms, and agreements to contain specified language preserving the right of Federal employees to disclose certain protected information.
 
Amends the Homeland Security Act of 2002 to extend existing whistleblower rights for independently obtained information that may also qualify as voluntarily submitted critical infrastructure information under such Act. 
 
Requires Federal agencies to instruct employee how to make a lawful disclosure of classified information to the Special Counsel, the Inspector General of an agency, Congress, or other agency employee designated to receive such information.


Legislative actions:
action_date: 2004-10-08
text: Placed on Senate Legislative Calendar under General Orders. Calendar No. 782.
action_date: 2004-10-08
text: Committee on Governmental Affairs. Reported by Senator Collins without amendment. With written report No. 108-392.
action_date: 2004-10-08
text: Committee on Governmental Affairs. Reported by Senator Collins without amendment. With written report No. 108-392.
action_date: 2004-07-21
text: Committee on Governmental Affairs. Ordered to be reported without amendment favorably.
action_date: 2004-07-09
text: Committee on Governmental Affairs referred to Subcommittee on Financial Management, the Budget, and International Security.
action_date: 2004-07-08
text: Read twice and referred to the Committee on Governmental Affairs. (text of measure as introduced: CR S7840-7842)
action_date: 2004-07-08
text: Sponsor introductory remarks on measure. (CR S7839-7840)
action_date: 2004-07-08
text: Introduced in Senate