DATE: February 16, 1999

CASE NUMBER 98-SDW-2

In the Matter of

BRIAN C. RIMAR,
    COMPLAINANT,

    v.

ENVIRONMENTAL PROTECTION AGENCY,
    RESPONDENT.

   The above-captioned matter arises under 42 U.S.C. §300j-9(i), the employee protection provision of the Safe Drinking Water Act, as amended. On October 14, 1998 I issued a Recommended Decision and Order recommending approval of a proposed settlement and dismissal of the matter with prejudice. That recommended decision was not appealed by any party and therefore became final on October 29, 1998.

   On January 25, 1999, the Complainant filed a motion seeking reconsideration of an October 14, 1998 protective order that imposes a series of restrictions on the Complainant's use of materials responsive to Complainant's Interrogatory No. 8 and Document Production Request Nos. 7 and 8 and also requires that those materials be returned to the Respondent upon the conclusion of this litigation. The Complainant's motion acknowledges that he failed to file a timely response to the Respondent's September 24, 1998 request for the issuance of the protective order, but asserts that this failure should be excused because the response was due at a time when he was engaged in settlement negotiations with the Respondent.

   On February 8, 1999 the Respondent filed a document asserting that the Complainant's motion is untimely, lacking in legal merit, and prompted by "questionable motives."

   The Complainant's request for reconsideration of the protective order raises essentially four arguments. First, the Complainant alleges that there has been no showing of good cause for limiting disclosure of the Office of Inspector General (OIG) records concerning its investigation of the Complainant (hereinafter the "OIG investigation records") or for prohibiting disclosure of the redacted version of the OIG's Investigations Manual that was provided to the Complainant before the issuance of my June 8, 1998 order requiring the production of the entire, unredacted manual. In this regard, the Complainant's motion indirectly represents that he previously obtained the redacted version of the OIG Investigations Manual by bringing a lawsuit under the Freedom of Information Act (FOIA) and therefore argues that the protective order would conflict with the results of that litigation. See PEER v. EPA, 978 F. Supp. 955 (D. Colo. 1997). Second, the Complainant contends that he has "a clear cut" legal right under FOIA and the Privacy Act to be given copies of the OIG investigation records. Third, the Complainant asserts that the requirements of the protective order are retroactive and thus impossible to obey. Finally, the Complainant argues that the protective order violates "public policy" because it would limit the kinds of information he can provide to members of Congress, the General Accounting Office, and the United States Department of Justice.

   After careful consideration of the Complainant's contentions, I find that they are founded on erroneous assumptions about the scope of the protective order and on a failure to recognize the differences between the standards and procedures governing pre-trial discovery and the standards and procedures governing disclosure of information under the Privacy Act and FOIA. As well, I find that the Complainant is mistaken in asserting that his motion is supported by "public policy."

   Most significantly, the Complainant is mistaken in assuming that the protective order imposes retroactive obligations on him and that it requires him to return to the Respondent those portions of the OIG Investigations Manual obtained through the FOIA litigation. All that the order requires is that from the date of the order the Complainant maintain the confidentiality of the documents insofar as he obtained them in response to the above referenced discovery demands. In other words, the order does not prohibit any disclosures that might have occurred before the order was issued or require him to maintain the confidentiality of identical documents that have been or may be received through other means, such as litigation under the Privacy Act or FOIA.

   In addition, the Complainant's assertion that his allegedly "clear cut" Privacy Act and FOIA entitlement to the materials within the scope of the protective order warrants reconsideration of the order reflects a failure to comprehend the differences between pre-trial discovery standards and the standards governing disclosure of information

under the Privacy Act and FOIA. The Privacy Act and FOIA are designed to give members of the general public access to certain types of information as a matter of right and without regard to the purposes for which the information is sought. In contrast, the rules of discovery are designed to assure parties access only to that information that is reasonably calculated to lead to materials that might later be admitted into evidence, and are not designed to provide information for other purposes that are beyond the scope of the litigation. Hence, depending on the circumstances, information available under FOIA and the Privacy Act might not be available under the rules or discovery and vice versa. In this case, the Complainant was granted access to certain categories of information because that information was deemed to be relevant to the issues in litigation, even though it appeared that at least some of that information would not be available to him under either FOIA or the Privacy Act. Now that the litigation is completely over, the reasons for granting access to the information have vanished and therefore nothing in the rules of discovery suggests that the Complainant should continue to have access to the information, particularly in view of the fact that, despite the Complainant's assertions, at least some of the information may well be exempt from disclosure under both FOIA and the Privacy Act.¹ Indeed, any policy of allowing litigants to retain all information disclosed during the scope of a discovery process could well have the effect of encouraging individuals to bring frivolous whistleblower complaints in order to obtain information that would otherwise be unavailable. It is also noted that, in any event, administrative law judges lack jurisdiction to resolve disputes about the application of the Privacy Act or FOIA and that such disputes can be properly resolved only by a United States District Court. Thus, to the extent that the Complainant is relying on those statutes as grounds for retaining the aforementioned documents, he is addressing his arguments to the wrong forum.

   Finally, I find that the Complainant is mistaken in asserting that his motion is supported by "public policy." In making this assertion, the Complainant is apparently assuming that the materials subject to the protective order demonstrate some circumstance (e.g., the persecution of whistleblowers or illegal conduct by the OIG) that warrants action by Congress, the General Accounting Office, or the Department of Justice, and that therefore "public policy" would be served by allowing him to provide these materials to these entities. I agree that in circumstances where materials obtained during the discovery process demonstrate persecution of whistleblowers or other illegal conduct, "public policy" would probably preclude continuation of a protective order prohibiting disclosure of such materials. However, such facts do not exist in this case. Although careful review of the documents indicates that the OIG special agents who conducted the investigation of the Complainant erred in concluding that he had improperly caused EPA to award a large grant to a particular university, those documents and the five days of trial testimony in this case strongly support the conclusion that the error was made in good faith and was in no way the result of any effort by EPA's management to retaliate against the Complainant. Indeed, the evidence in this case indicates that the OIG special agents had proper and good faith grounds for conducting their investigation which were entirely independent of any of the Complainant's protected activities and that the response to the OIG investigation and its final report by EPA's management officials was fully justified.

¹See, e.g., Nation Magazine v. United States, 71 F.3d 885, 896 (D.C. Cir. 1995)(noting that those portions of records in investigatory files which would reveal subjects, witnesses, and informants in law enforcement investigations are categorically exempt from disclosure under FOIA); Hernandez v. Alexander, 671 F.2d 402 (10th Cir. 1982)(holding that a Privacy Act exemption for investigatory material compiled for determining suitability for Federal employment applies to investigations into an employee's continued suitability for such employment and that it was proper to deny the employee access to the identity of individuals who made confidential statements to investigators).