What Happens Next

The Referral Process under 5 U.S.C. § 1213(c)

Should OSC find that there is a substantial likelihood that one of the statutory conditions exists, the Special Counsel will refer the disclosure to the appropriate agency head. 5 U.S.C. § 1213(c). The head of the agency is then required to conduct an investigation and submit a written report on the findings of the investigation to the Special Counsel.

The statute sets forth specific information that must be included in the agency’s report. 5 U.S.C. § 1213(d). The agency reports must be reviewed and signed by the head of the agency and must include the basis for the investigation, the manner in which the investigation was conducted and a summary of the evidence gathered. The report must also list any apparent violations found and include a description of any action to be taken as a result of the investigation. OSC does not decide who within the agency will conduct the investigation. However, agency heads frequently task their Offices of Inspector General with the responsibility for investigating the disclosures referred by OSC.

The statute requires agency heads to complete the investigation and report back to OSC on their findings within 60 days. 5 U.S.C. § 1213(c)(1). If an agency needs additional time to complete the investigation and report, an extension of time may be requested. Extension requests must be submitted in writing and must state specifically the reasons the additional time is needed. Extensions will only be granted upon a showing of good cause.

Upon receipt, the agency’s report is reviewed to determine whether it contains the information required by the statute and whether or not the report’s findings appear to be reasonable. 5 U.S.C. § 1213(e)(2). In addition, the whistleblower is afforded an opportunity to review and comment on the agency report. 5 U.S.C. § 1213(e)(1). If the report meets the statutory requirements, the Special Counsel then transmits the report to the President and the congressional committees with oversight responsibility for the agency involved. 5 U.S.C. § 1213(e)(3). OSC is also required to place the report in a public file. 5 U.S.C. § 1219. The whistleblower’s comments, if any, and the Special Counsel’s findings are also sent to the President and congressional oversight committees.

If the report reveals evidence of a criminal violation it will not be sent to the whistleblower, nor does it become part of the public file. Instead, the agency is required to forward the information directly to the Attorney General and to notify the Office of Personnel Management and the Office of Management and Budget of the referral. 5 U.S.C. § 1213(f).

The Referral Process under 5 U.S.C. § 1213(g)

The Referral Process under 5 U.S.C. § 1213(g) The Special Counsel may also refer cases to the head of an agency where no substantial likelihood determination has been made. 5 U.S.C. § 1213(g)(2). In these cases, the Special Counsel has the discretion to transmit the information provided by the whistleblower to the head of the agency identified in the disclosure. The agency head is then required to inform OSC in writing, within a reasonable time, what action has been or will be taken, and when such action will be completed. The whistleblower is also informed of the referral to the agency head.

The Referral Process under 5 U.S.C. § 1213(j)

For disclosures of information involving counterintelligence and foreign intelligence information the statute sets forth a different procedure under 5 U.S.C. § 1213(j). If the Special Counsel determines that a disclosure involves counterintelligence or foreign intelligence information, which is prohibited from disclosure by law or Executive order, the disclosure will be transmitted to the National Security Advisor, the Permanent Select Committee on Intelligence in the House and Select Committee on Intelligence in the Senate. 5 U.S.C. § 1213(j). The referral ends the Special Counsel’s involvement with the disclosure and the National Security Advisor and the Congressional intelligence committees decide how to proceed with the information. The disclosure will not be referred to the head of the agency involved for an investigation.