By a vote of 7 to 2, the Supreme Court has upheld the application of the Federal law protecting whistleblowers to a TSA employee who revealed information that the TSA later defined as “Sensitive Security Information” (SSI).
Federal law protects employees against firing or other retaliation for “any disclosure of information by an employee … which the employee … reasonably believes evidences — (i) any violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”
There’s an exception for properly classified information or any other information, disclosure of which is “specifically prohibited by law.”
The TSA fired air marshall Robert MacLean for going to members of Congress, the press, and eventually the public with information about TSA actions which he resonably believed was evidence of a substantial and specific threat to public safety. The TSA said the information MacLean had released was SSI, disclosure of which is prohibited by TSA regulations.
The Supreme Court agreed with MacLean and the 9th Circuit Court of Appeals that TSA regulations prohibiting disclosure of SSI are just that, “regulations”, and not “laws”. Because disclosure of SSI is not prohibited by “law”, but only only by regulation, Federal employees who disclose SSI are protected as whistleblowrs, as long as they resonably believe that the SSI is evidence of illegality, mismanagement, waste, or danger to public health or safety as defined in the law.
Having found that disclosure of SSI is, in these circumstances, protected by the whistleblower law, the Supreme Court didn’t need to reach the question of whether the TSA could retroactively designate information as SSI or impose sanctions for disclosing it before it was designated as SSI.
Would-be TSA or other DHS whistleblowers should not underestimate the continued potential for (illegal) retaliation for whistleblowing. The DHS defended its retaliatory firing of Mr. MacLean all the way to the Supreme Court, at huge expense to him and to the taxpayers. He still doesn’t have his job back, and hasn’t been compensated (although we hope he now will be) for his lost wages.
But we hope that despite the risks of whistleblowing, this ruling encourages TSA employees to disclose more of the information that the TSA has defined as SSI not in order to protect the public, but to protect itself against exposure of its mismanagement and its violations of individuals’ rights and other laws.