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Project on Government Oversight

POGO's Response to VA Inspector General's Subpoena for Whistleblower Records

June 9, 2014

 

Mr. Richard J. Griffin
Acting Inspector General
Department of Veterans Affairs
Office of the Inspector General (50C)
801 Vermont Avenue, NW
Washington, DC 20420

Dear Mr. Griffin:

We are writing in response to the administrative subpoena issued to the Project On Government Oversight (“POGO”) on May 30, 2014. POGO believes that the administrative subpoena violates the Constitution; will harm the underlying mission of this organization; and that there has been no showing made that the information sought is not otherwise available to the Inspector General (“IG”) through alternative means, including the IG’s own considerable powers to investigate the problems surfacing at the Department of Veterans Affairs (VA). Accordingly, we do not plan to provide the requested documents.

The administrative subpoena directs POGO to produce on June 13, 2014:

All records that POGO has received from current or former employees of the Department of Veterans Affairs, and other individuals or entities relating in any way to wait-times, access to care, and/or patient scheduling issues at the Phoenix, Arizona VA Healthcare System and any other VA medical facility.

Based on protections afforded by the First Amendment of the United States Constitution, it is in the public interest that POGO protect its sources, methods, and unpublished information involving any matter related to any POGO investigation or sources, including our investigation into the Department of Veterans Affairs. The administrative subpoena served by the IG on POGO would infringe on POGO’s freedom of speech, freedom of press, and freedom of association rights as they relate to all whistleblowers and sources who come to POGO alleging improper administration of federal policies, programs, contracts, or spending. Moreover, complying with the administrative subpoena would undercut and harm the very purpose for which POGO was founded and functions.

POGO’s good government advocacy and investigative reporting activities and our ability to persuade whistleblowers to reach out to our organization are values protected by the First Amendment. The courts have long recognized the ability of groups like POGO to engage in speech with minimal infringement by the government or private parties:

Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the … freedom of speech. (Citations omitted.)

NAACP v. Alabama, 357 U.S. 449, 460, 462 (1958).

The U.S. District Court for the District of Columbia also has found that the First Amendment protections include:

[the] ‘freedom to protest policies to which one is opposed, and the freedom to organize, raise money, and associate with other like-minded persons so as to effectively convey the message of the protest.’ The First Amendment’s protection ‘extends not only to the organization itself, but also to its staff, members, contributors, and others who affiliate with it.’ (Citations omitted.) (Emphasis added.)

Wyoming v. Dep’t of Agriculture, 208 F.R.D. 449, 454 (D.D.C. 2002).

The people coming to POGO have a shared interest in our investigative reporting and efforts to expose and remedy the failures at the VA. That shared interest includes allowing those sources to make disclosures to POGO without fear of being identified and possibly retaliated against. The overall intent is to ensure that the investigation remains focused on the VA’s failures and that the focus does not become an agency-wide witch hunt to punish the individuals who stepped forward.

Additionally, the First Amendment reporter’s privilege and legal precedents afforded to those who investigate and report the news apply to POGO. We have built a solid reputation for reporting waste, fraud, abuse, and corruption inside the federal government, and protecting our sources is vital to that work. As the Supreme Court stated in Branzburg:

The use of confidential sources by the press is not forbidden or restricted; reporters remain free to seek news from any source by means within the law. No attempt is made to require the press to publish its sources of information or indiscriminately to disclose them on request.

Branzburg v. Hayes, 408 U.S. 665, 681-682 (1972).

The IG’s office has provided no basis to suggest that the information possessed by POGO as a result of its investigation of the VA is not already available to the IG, including through the VA IG “hotline.” Accordingly, the administrative subpoena is little more than an invasive fishing expedition. Wyoming v. Dep’t of Agriculture, 208 F.R.D. 449, 454 (denying a motion to compel discovery when the plaintiff can obtain the information by other means and it has not made a showing that it has made reasonable attempts to obtain the information elsewhere before asking for a broad discovery request from a non-party); United States v. Garde, 673 F. Supp. 604, 607 (D.D.C. 1987) (denying motion to enforce subpoena issued by Nuclear Regulatory Commission when “constitutional freedoms are at stake” and all alternatives haven’t been exhausted); ETSI Pipeline Project v. Burlington Northern, Inc., 674 F. Supp. 1489, 1490 (D.D.C. 1987) (quashing a subpoena when the compelled disclosure of the requested information would implicate the First Amendment rights of the non-party, and the party seeking discovery “has not sufficiently exhausted all alternative sources for the information sought or made reasonable efforts to obtain the information elsewhere.”).

Moreover, were POGO to comply with the subpoena, it would cause irreparable damage to POGO’s fundamental mission of uncovering systemic problems in federal agency administration, as future whistleblowers would rightfully be suspicious that POGO might jeopardize their confidentiality and subject them to retaliation by government officials. POGO serves as a complement to government investigative sources, including Inspectors General, as federal employees are often reluctant to deal with agency officials out of fear for their own livelihoods, as well as intimidation by colleagues. Complying with the IG’s administrative subpoena would serve to undercut and even vitiate the very reasons for POGO’s existence and the public’s interest in resolving the VA’s longstanding failures.

Founded in 1981, POGO is a nonpartisan independent watchdog that champions good government reforms. POGO’s investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and ethical federal government. POGO has earned a solid reputation for investigative reporting and uncovering deep-rooted systemic problems which threaten the integrity and security of the federal government. By working with whistleblowers and expert insiders, and conducting in-depth investigations, POGO is able to provide accurate and reliable information and recommendations that are trusted by policymakers and the public. In fact, after an investigation and the free dissemination of information to the public, policymakers frequently adopt and implement our recommendations to fix the systemic problems originally reported by POGO.

For POGO to effectively operate as a government watchdog, we must assure our sources that their identities will not be revealed. Anything less renders our work futile; IGs cannot make that same assurance. Despite claims that IGs protect the sources of information, the Inspector General Act (5 U.S.C. App. §7(b)) gives the IGs unfettered authorization to disclose the identity of the employee if “the Inspector General determines such disclosure is unavoidable during the course of the investigation.” Therefore, POGO finds it necessary to protect the information that we have received and the sources of that information, and as a result, continue with our investigation and provide a benefit to the public.

POGO is not taking this matter lightly and is not taking a stance to hinder the work of the VA IG. In fact, we support the IG’s efforts to investigate failures at the VA. As soon as we can, POGO is planning to issue an investigative report and assist the VA IG, absent identifying the sources of our reporting.

Our unwillingness to comply with the subpoena is consistent with our long history of protecting sources who come to our organization. POGO has consistently refused to turn over information and/or records about our sources, investigations, and practices when government agencies, Congress, and parties in civil and administrative cases made such requests, including requests made pursuant to a subpoena. POGO has always taken the position that the First Amendment protects POGO’s right to protect the whistleblowers, sources, and insiders who come to us with information or assist in POGO’s investigations.

POGO requests that the IG’s office revoke the subpoena, because it pertains to information that is confidential, privileged, and otherwise constitutionally protected, the disclosure of which would be harmful to the legitimate interests of POGO, our sources, and the general public.

Thank you for your time and consideration.

Sincerely,

Danielle Brian                                                                                   
Executive Director                                                          

Scott H. Amey
General Counsel

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