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Brush-Back Pitch: Special Counsel Takes on FDA over Email
The war between the Government, which claims it is free to do whatever it wants, and its own employees, who continue to insist their duty is to the People, not to their bosses, rages. Here’s another skirmish.
The Food and Drug Administration secretly monitored the private e-mail accounts of six of its own scientists and doctors who had warned Congress and the White House that medical devices they were reviewing were approved or pushed toward approval despite safety concerns. Among the communications, made on agency computers, were e-mails the employees wrote to the Office of Special Counsel (OSC), which reviews disclosures about government wrongdoing and retaliation against those who report it (Full disclosure: The Government Accountability Project has filed a complaint with the OSC on my behalf against my employer, the Department of State, claiming State’s actions against me are retaliation for the book I wrote critical of their actions n Iraq).
On Wednesday, attorneys for the employees and two prominent Republican lawmakers asked the special counsel to investigate whether the employees’ communications with the office, the Equal Employment Opportunity Commission and the inspector general that oversees FDA operations were protected under federal whistleblower laws. The attorneys and lawmakers say the e-mails were confidential and should not have been intercepted.
The idea is that certain communications are de facto private, even if made on a government or company computer. The message, not the tool used, controls.
“The confidentiality of these communications was broken,” said Stephen M. Kohn of the National Whistleblowers Center, whose firm is representing the plaintiffs. “As part of their official duties, they have the right to disclose confidential concerns. Employees throughout the government can work on these matters on paid time.”
The FDA tried but failed to have criminal charges brought against the whistleblowers for disclosing sensitive business information. The agency fired or harrassed the others.
Special Counsel Carolyn Lerner warned against government monitoring of email communications with her office.
One hopes that the State Department is following the FDA case and not monitoring its own employees’ emails to their lawyers, the OSC or Congress, especially this time of year when Congress has budget requests in front of it. State’s monitoring of its own employees’ emails as a retaliatory tactic also flies in the face of all the barking Hillary does about internet freedom in China and Iran. Perhaps if the State Department had an Inspector General to review such matters internally things would be better. Awkward!
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