Society expects companies to comply with all applicable laws. If a company is engaging in conduct that is harmful to society, society has an interest in ensuring that honest citizens bring the offending conduct to the attention of authorities. At the same time, whistleblowers do not wish to be harassed or otherwise have their privacy jeopardized. Unfortunately, public informants have relatively limited rights to privacy in the United States. In the absence of any fraudulent intent, there are few laws prohibiting the disclosure of most information regarding those who come forward with disclosures.
Whistleblowers have protection against disclosures by the federal government. The Privacy Act of 1974, codified in 5 U.S.C. § 552, prohibits federal agencies from disclosing information in their databases in the absence of certain enumerated exceptions. If a federal agency discloses certain private information about an individual and if the individual suffers harm, the individual will be permitted to recover certain statutory damages.
This is not an absolute right. In Doe v. Chao, 540 U.S. 614 (2004), the Supreme Court of the United States held that the plaintiff must be able to show some measure of actual damages before being eligible to recover the statutory minimum. If a whistleblower’s privacy rights are violated as a result of an unlawful disclosure of personal information by a federal agency and if that whistleblower can prove that he or she suffered some small amount of harm, the whistleblower will be entitled to sue the government for violations of that act. In the more recent case of F.A.A. v. Cooper, 132 S.Ct. 1441 (2012), the Supreme court held that mental and emotional distress do not qualify as actual damages under that statute. As a result, proving actual damages under the statute may be difficult.
Medical information is protected from disclosure under the Health Insurance Portability and Accountability Act, more commonly referred to as “HIPPA.” As codified in HIPPA, patients have a strong right of privacy in their medical records. Certain covered entities in the medical industry including medical service providers may not disclose Protected Health Information to any parties without the express consent of the patient if the purpose for which the information is disclosed is not related to medical treatment. If the party making the disclosure believes in good faith that the subject presents a serious danger to any person, disclosure is authorized.
Other Private-Party Disclosures
Whistleblower privacy rights are otherwise limited. It is noted that false claims act cases commonly proceed to litigation, and they may bring private actions for certain statutory violations including violations of the False Claims Act, which prohibits various types of fraudulent activities related to government programs. Depending upon whether the case is being brought by a private party on behalf of the government or the government itself, the prosecutor may also be the informant. In either event, certain witness information will be available to the defendant and his attorney. This information will usually include sufficient information to contact the witness, including the whistleblower’s name and address.
Many whistleblowers work in office environments. It is common for employees at private companies to consent to phone and internet monitoring as a condition of continued employment. Workers who consent to electronic monitoring may have phone calls pertaining to their informant activities monitored. Additionally, if another employee overhears the nature of these conversations, the employee is under no obligation to keep the information private.
Beyond disclosures from the federal government and disclosures pertaining to one’s medical record, whistleblowers have relatively few privacy rights. State laws prohibiting stalking and harassment will always apply and if the whistleblower feels that a party is engaging in such behaviors, they ought immediately report the conduct to the police. However, whistleblowers cannot reasonably expect their identities to remain private for long.
Former journalist Ann Bailey presents these rights of privacy issues concerning whistleblowers to answer questions that may arise during the process. The attorneys of Goldberg Kohn Ltd assist expectations of privacy for their false claims act cases, while vigorously protecting their clients’ rights.