Disclosure Ruled Not Protected

The MSPB recently affirmed the removal of a Federal Air Marshal (FAM) with the Transportation Security Administration (TSA) on charges of disclosure of Sensitive Security Information (SSI). In Robert MacLean v. Department of Homeland Security, 2011 MSPB 70 (2011), the Board reiterated that even if an employee believes that he or she is disclosing information that will show a threat to public health or safety, if the disclosure itself is prohibited, the whistleblower laws do not offer the employee protection.

MacLean in 2003 learned that TSA had uncovered a potential plot by terrorists to hijack U.S. airliners. Shortly after TSA revealed this discovery, it issued a directive to all FAMs that "Remain Overnight" missions in early August would be cancelled. MacLean believed that cancelling the missions during a hijacking alert created a danger to the flying American public and was inconsistent with what the law required. He first went to his supervisor and the Inspector General's office, but was not satisfied with the response. Consequently, he went to MSNBC and disclosed the directive with the hope that a high-publicity media controversy would force TSA to rescind it. MSNBC published a story on the directive, and the congressional outcry over the directive forced TSA to withdraw it before it was effectuated. MacLean was later outed as the employee who disclosed the directive when he appeared on NBC News on an unrelated matter. TSA subsequently removed him.

In the ensuing case before the MSPB, the Board first asserted that it did not have discretion to determine whether the directive constituted SSI, the disclosure of which was prohibited by law, as the U.S. Court of Appeals for the Ninth Circuit had already determined that it was. In reaching its holding that TSA's removal of MacLean was proper, the Board cited 5 U.S.C. §2302(b)(8)(A), which reads that an agency may not impose discipline on an employee for making a disclosures that the employee reasonably believes evidences a substantial and specific danger to public health or safety, "if such disclosure is not specifically prohibited by law." Because in MacLean's case, the disclosure of the directive was prohibited by law, he did not have protected whistleblower status and could be removed.

This case is a sharp reminder for employees to proceed with caution before blowing the whistle. Even noble intentions may be punished if there is a legal prohibition against disclosure of certain information. All employees and especially whistleblowers should familiarize themselves with 5 U.S.C. §2302(b)(8) which addresses whistleblowing.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to https://www.passmanandkaplan.com.