Federal Manager's Daily Report

The Office of Special Counsel is supporting a Senate move to broaden its investigative powers, saying that “the public interest in a transparent and accountable government is best served by ensuring OSC’s authority to access all information, including certain privileged information.”

“Agencies should not be able to shield managers from accountability or hide retaliatory conduct by withholding information from OSC,” said a statement in favor of a measure that would reauthorize the agency through 2021.

“Our investigations typically assess whether an agency acted for legitimate, non-retaliatory reasons, or whether agency justifications are really a pretext for retaliating against an employee. To make these assessments, it is often necessary to review communications between management officials and agency counsel. In fact, these communications can demonstrate that management officials acted responsibly, sought legal advice, and had a legitimate basis for disciplining a purported whistleblower,” it said.

While agencies typically comply with OSC requests for such information, it added, “some assert that these types of communications are privileged and withhold this information from OSC,” resulting in prolonged disputes or leaving the OSC attempting to complete the investigation without it.

It noted that the language specifies that agencies still may invoke privileges to prevent disclosure of the same information in other forums, such as in lawsuits. The provisions are part of a bill (S-3011) that packages a number of separate bills cleared by the Homeland Security and Governmental Affairs Committee.