Privacy Act Protections for Whistleblowers At Risk

On Tuesday, October 4, 2011, the National Whistleblower Center filed a friend of the court brief with the U.S. Supreme Court in support of the plaintiff in a Privacy Act case, Federal Aviation Administration v. Cooper, No. 10-1024. The Supreme Court is currently reviewing whether the Privacy Act permits the recovery of damages for non-pecuniary harm, such as mental and emotional injuries, under the Act’s “actual damages” provision. 5 U.S.C. § 552a(g)(4)(A).

In the lower court, the Ninth Circuit held that the plaintiff was entitled to seek damages for emotional distress. The government, however, has appealed to the Supreme Court to seek a reversal claiming that the term “actual damages” should be narrowly construed to limit Privacy Act damages suits to recovery of out of pocket losses or economic harm caused by the government’s willful or intentional violation of the Act.

Whistleblowers who report wrongdoing by Federal agencies and government officials frequently are subject to violations of privacy. It cannot be over-stated how vital avenues of legal redress, including rights available under the Privacy Act, are to those courageous employee-whistleblowers, both actual and potential, who put the public good before their own careers and who face violations of their privacy as a result of taking unpopular positions. Protecting the privacy of these individuals is an essential component in encouraging employees to reveal severe abuses of power and dangerous industrial practices. Even under the best of circumstances, whistleblowers run enormous risks and suffer retaliation for reporting wrongdoing. If the Privacy Act does not provide remedies for actual non-pecuniary harms (such as for emotional distress and humiliation), then whistleblowers face even greater disincentives to expose misconduct or violations of law.

The Privacy Act, the preamble to the Act, and the legislative history of the Act, repeatedly emphasize the importance of protecting personal privacy as a fundamental and constitutional right, and reflect a strong intent that the civil remedies and enforcement provisions further the Act’s compensatory and deterrent goals. In order to avoid the absurd result of Privacy Act plaintiffs meeting the injury-in-fact and causation requirements and proving an intentional violation but having no remedy, Congress created a remedy that permits recovery of damages that are actually incurred by the plaintiff.

To be eligible to bring a damages claim under the Privacy Act, a plaintiff must show there was an “adverse effect” resulting from the violation. 5 U.S.C. §§ 552a(g)(1)(C) and (g)(1)(D). The most common “adverse effect” demonstrated by victims of Privacy Act violations is the personal effects that are suffered (such as non-pecuniary and non-physical effects like emotional distress, emotional distress or trauma) when personal or embarrassing information is improperly disclosed by a Federal agency without their consent. See, e.g., Jacobs v. National Drug Intelligence Center, 548 F.3d 375, 377-378 (5th Cir. 2008).

Whistleblowers and other unpopular critics of Federal agencies often confront the intentional public disclosure of their personal and embarrassing information that is supposed to be held in confidence by Federal agencies. The unauthorized release of such information by Federal agencies violates of Privacy Act’s no disclosure without consent rule. 5 U.S.C. § 552a(b).

For example, when Frederic Whitehurst blew the whistle on serious misconduct at the FBI crime lab, the FBI made unauthorized public releases of personal, embarrassing and confidential information about Dr. Whitehurst in an effort by the FBI to smear and discredit him. The Justice Department later agreed to settle Dr. Whitehurst’s Privacy Act case in which his claim for damages was based on non-pecuniary emotional harm for the alleged violation of his privacy rights. [See, e.g., "Justice Dept. to Pay Settlement to FBI Whistle-Blower Whitehurst," Los Angeles Times (March 12, 1998).]

The Department of Defense’s unauthorized release of information from its security and personnel files about Linda Tripp is another example of the type of government abuse the Privacy Act was intended to combat. Tripp v. Dep’t. of Defense, 219 F.Supp.2d 85, 87 (D.D.C. 2002) (The Defense Department “conceded liability for the particular disclosure to The New Yorker journalist as a violation of the anti-disclosure provision of the Privacy Act, 5 U.S.C. § 552a(b).”). The government’s admitted violation of the Privacy Act as a means to discredit Ms. Tripp demonstrates how the government can misuse information in reprisal against unpopular whistleblowers and for political purposes. Ms. Tripp sought non-pecuniary damages under the Privacy Act and the Defense Department later entered into a settlement. [SeeDefense Dept. settles with Linda Tripp,” USA Today (Nov. 3, 2003).]

There are many other examples where whistleblowers and other government critics have faced government sponsored smear campaigns in retaliation for their disclosures or dissent.

When the Privacy Act was enacted in 1974, Congress specifically noted the need to redress government abuse of power to violate the privacy rights of individuals for political purposes. Among the many concerns cited by members of Congress for enacting the Privacy Act included the creation of the “Plumbers,” a White House unit, and “secret” and illegal “wire-taps” and selective disclosure or misuse of private information for “political purposes,” the violation of noted whistleblower Daniel Ellsberg’s privacy rights, and “Watergate and related scandals” that callously disregarded individual rights to privacy.

Congress was fully aware that the term “actual damages” included recovery for nonpecuniary compensatory damages when it drafted and passed the Privacy Act, and the text of the statute makes clear the intent to provide for recovery of damages that are actually incurred as a result of intentional or willful violations. To construe the statute narrowly, as the government urges the Supreme Court to do, and to limit damages to out-of-pocket losses, not only conflicts with Act’s stated legislative purpose, but it would also eviscerate the Act’s remedial purpose and leave victims of intentional or willful violations of the Privacy Act without a remedy.

The Privacy Act has been an important tool to protect federal employees from government violations of privacy in retaliation for their whistleblowing. However, if the Supreme Court reverses the Ninth Circuit decision in FAA v. Cooper, the practical effect will be to prevent whistleblowers and other Privacy Act plaintiffs from obtaining a meaningful remedy. [See NWC amicus brief]

The Supreme Court will hear oral arguments in FAA v. Cooper on November 30, 2011.