Dear Inspector General Horowitz:
In 1988, I introduced an amendment known as the "anti-gag" provision to the Treasury, Postal Service and General Government Appropriations Act. The provision was adopted, and the law as amended stated:
Sec. 619. No funds appropriated in this or any other Act for fiscal year 1989 may be used to implement or enforce the agreements in Standard Forms 189 and 4193 of the Government or any other nondisclosure policy, form or agreement if such policy, form or agreement:
(3) directly or indirectly obstructs, by requirement of prior written authorization, limitation of authorized disclosure, or otherwise, the right of any individual to petition or communicate with Members of Congress in a secure manner as provided by the rules and procedures of the Congress;
(4) interferes with the right of the Congress to obtain executive branch information in a secure manner as provided by the rules and procedures of the Congress . . . .1
From 1988 until 2013, a version of this language was included in every appropriations bill signed into law,2 most recently in March 2013 as part of the Consolidated and Further Continuing Appropriations Act of 2013.3
In 2012, working closely with Senator Akaka, I authored a provision of the Whistleblower Protection Enhancement Act (WPEA) to codify the "anti-gag" provision. As amended by this provision, 5 U.S.C. § 2302, which governs prohibited personnel practices, now reads:
(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority--
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(13) implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement does 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."
On May 10, 2013, I wrote to the Attorney General asking him to provide information regarding what the Justice Department had done to implement this provision. I never received a response. On November 22, 2013, I copied you on a follow-up letter I wrote to the Attorney General notifying him that not only had I not received a reply to my May 10 letter, but it had also come to my attention that the Federal Bureau of Investigation (FBI) was potentially in violation of the anti-gag provision.4
Even if your office was not familiar with the law prior to my November letter, it certainly was by then. Moreover, on August 8, 2012, your office touted the appointment of Robert Storch as its whistleblower ombudsman, who should be responsible for ensuring that your office fully implements the WPEA. Thus it is alarming and disappointing to discover that your office is still using non-disclosure forms which do not comply with 5 U.S.C. § 2302. The attached form was executed within the last several weeks.5 It fails to include language regarding an employee's right to communicate with Congress, much less the full language required by the WPEA. Moreover, it threatens adverse personnel action against the employee for violation of the non-disclosure agreement.
Although the Department of Justice Office of Inspector General (DOJ OIG) website outlines the requirements of the WPEA, many employees who have been required to sign nondisclosure forms without the language required by the WPEA may not be aware of this language on the website. Even if they are, some may assume that the form they signed nevertheless takes precedence over the website. In reality, however, the failure to include the WPEA disclaimer makes the form unenforceable.
In order to help me understand the extent to which this provision of the WPEA has been followed, please answer the following questions:
1) Prior to my staff contacting your office on this issue, what steps, if any, had you taken to ensure that all nondisclosure forms used throughout the DOJ OIG comply with the WPEA?
2) How many other types of DOJ OIG nondisclosure forms that are not compliant with the WPEA have been used by the DOJ OIG at any time in 2014? How many of the non-WPEA compliant forms have been signed in 2014?
3) How many other types of DOJ OIG nondisclosure forms that are not compliant with the WPEA were used by the DOJ OIG at any time in 2013? How many of the non-WPEA compliant forms were signed in 2013?
4) How many personnel actions have been initiated against employees in connections with alleged violations of the terms of the non-WPEA compliant OIG nondisclosure forms? Please provide a summary of any such actions.
5) How do you intend to inform all individuals who have signed non-WPEA compliant nondisclosure forms of their rights under the WPEA?
Please provide your written answers to these questions by February 19, 2014. I would appreciate you numbering your responses in accordance with the question number you are answering. Should you have any questions regarding this letter, please contact XXXX of my Committee staff.