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Protecting Whistleblowers since 1977

FOIA Request Denial In Robert MacLean Case Evidences Widespread Retaliatory Investigation

Shanna Devine, February 07, 2011

On January 26th, 2011, former Federal Air Marshal (FAM) turned whistleblower Robert MacLean received a curt "final denial" of his Freedom of Information Act (FOIA) request to the U.S. Immigrations and Custom Enforcement (ICE). However, the denial letter spoke volumes.

MacLean requested documentation pertaining to a series of retaliatory investigations enacted by the Federal Air Marshal Service against himself and several other FAM whistleblowers. What’s more, the pretext to open these investigations was often withheld or lacked merit. However, the common thread between these targeted FAMs is that they all warned of unsafe agency plans that made the flying public more vulnerable to terrorist hijackings. Instead of allocating agency funds to correct these national security loopholes, taxpayer dollars were used to conduct illegal investigations on FAM whistleblowers.

The FOIA response states:

A search of the ICE Office of Professional Responsibility (OPR) produced a total of thirteen (13) compact discs including audio recordings and document files with approximately three-thousand (3000) pages of records, eight (8) analog tapes, and an estimated three-thousand two-hundred fifty (3250) pages of physical records that were located. After a complete review of the records I have determined that, absent a privacy waiver regarding the subjects named in the investigation, all records will be withheld pursuant to FOIA Exemptions 6 and 7(C) of the FOIA.

According to this formal denial, over six thousand pages of material detailing these retaliatory probes are being withheld because their release could compromise "the privacy interests of the individuals in the records" (Exemption 6) and "records or information compiled for law enforcement purposes that could reasonably be expected to constitute an unwarranted invasion of personal privacy" (Exemption 7(C)).

So, very conveniently, the individuals responsible for conducting these excessive and illegal investigations are shielded by subjective FOIA exemptions that allow a FOIA officer (often at the directive of management) to put the “individual’s interest” before the public’s right to know. In turn, supervisors are given a blank check to retaliate against the whistleblower without ever having to divulge their identities or evidence of their illegal activity publicly, rendering the “Freedom” in FOIA moot.

As detailed in the GAP report Whistleblower Witch Hunts, retaliatory investigations against federal whistleblowers are common, costly to taxpayers, unjustifiable, unethical, and causing irreparable harm to a truth-tellers' reputations. A government investigation, regardless of pretext or findings, can be used as grounds for denial of a security clearance or permanent blacklisting from government jobs.

This decision is terrible. These continued witch hunts are even worse. In the meantime, the Whistleblower Protection Enhancement Act, blocked at the end of the last Congress by one anonymous senator, would allow a whistleblower to nip illegal investigations in the bud before countless government resources are used for smokescreen purposes.

Shanna Devine is Legislative Coordinator for the Government Accountability Project, the nation's leading whistleblower advocacy organization.