Over the past week, several reports emerged of alleged gag orders sent to federal agencies banning employees from communicating with the public or with other public officials. In the confusion that followed, some of the gag orders were disavowed, some clarified, and some remain secret.
OTG and the Project On Government Oversight (POGO) published a blog outlining the dangers of placing gag orders on federal agencies, particularly those dealing with the environment and public health. In the blog, we explain that while openness and journalism groups also criticized President Obama for attempts to control agency communications with the public during his presidency, the recent reports seem to describe directives going farther than what other administrations have done in the past.
At the time of posting, none of the reported memos had been released to the public. What information had been leaked, however, suggested that the orders may be illegal:
The Whistleblower Protection Enhancement Act of 2012 contains an anti-gag provision stating that agencies may not create policies that restrict employees’ right to report waste, fraud, and abuse especially to Congress or Inspectors General. The HHS policy would cover communications with Congress and so would clearly violate this provision. Other agencies’ bans on media communication could also run afoul of this requirement as whistleblowing to the media is also protected. All policies impacting employees’ communication rights must include a clear exception explaining that the policy does not cover whistleblower reporting or been seen as violating the law. (POGO)
Yesterday, Congressman Elijah Cummings and Congressman Frank Pallone, Jr. sent a letter to White House Counsel Donald F. McGahn II confirming some of these fears. They published a copy of the memo that was sent to employees of the Department of Health and Human Services (HHS), and called on the White House to “rescind all policies on employee communications that do not comply with the Whistleblower Protection Enhancement Act and other federal statutes.”
In addition to rescinding any gag orders that violate whistleblower protection laws, the White House and agencies should publish any memos sent to staff restricting their communications. The public has a right to know what information is being kept secret as the new administration takes office.
Update (2/2/17): On February 1, Rep. Jason Chaffetz, Rep. Mark Meadows, and Senator Charles Grassley also wrote to McGahn, asking for clarification on changes to agency communications policies, and calling on the White House to reiterate to agency staff the importance of protected whistleblower communications.
“Special Counsel Issues Reminder that Agencies Cannot Gag Whistleblowers” – Government Executive
“Information lockdown hits Trump’s federal agencies” - Politico