"Whistle ... and you've got an audience.".

• Author: Leiter, Amanda C.

Introduction I. The Centrality of Whistleblowers II. Factors Affecting Whistleblower Utility III. Assessing the Utility of Real Whistleblowers A. Job Description B. Attitude C. Political and Professional Views and Relationships D. Context E. Manner of disclosure F. Legal and Ethical Regimes IV. The Beginnings of a Model Conclusion INTRODUCTION

One of the questions for discussion today is whether public rights litigation is an effective means of social change. This Article does not attempt an answer but begins to explore a set of issues central to any answer: the extent, types, uses, and potential shortcomings of government whistleblowing. There is considerable sociological and legal literature on government whistleblowing, but little of it addresses the issue from the angle relevant to maximizing the efficacy of public rights litigation. This Article begins to fill that gap. Part I discusses the importance of whistleblowers in the vindication and enforcement of public rights. Part II suggests eight traits that increase a government whistleblower's utility to public rights litigators, such as access to information, insight, willingness to disclose, and relative honesty. Part III proceeds on the assumption that the effectiveness of public rights litigation depends in part on litigators' use of the highest utility whistleblowers. This Part also suggests several concrete issues one could explore empirically to assess litigators' present use of such whistleblowers; the discussion concludes with a somewhat more in-depth examination of one such issue: the legal landscape confronting federal government whistleblowers. Part IV offers very preliminary empirical evidence that the predictions of Parts II and III accord with reality. The Article concludes with a summary of outstanding questions about the importance of government whistleblowing to effective public rights litigation, and an outline of a possible approach to investigating these questions.

1. THE CENTRALITY OF WHISTLEBLOWERS

   Some background is necessary to explain why I consider government whistleblowing essential to effective public rights litigation. If today's question were whether litigation seeking to vindicate a widely-shared right can effect social change, one would not need to look beyond Brown (1) and Roe (2) to reach an affirmative answer. Clearly, even in the absence of whistleblowers, public rights litigation is one means of changing social policy.

   For such litigation to serve as an effective tool to shift policy in a concerted direction, however, numerous predicate conditions must be met. For instance, litigators hoping to achieve such a shift must identify appropriate test cases with sympathetic plaintiffs and facts, (3) decide whom to sue, where to file suit, what causes of action to raise, (4) meet the often stringent justiciability requirements of the chosen forum, (5) and obtain and coordinate suitable amicus filings. (6)

   These litigation-related concerns do not become relevant, however, until public rights advocates have formulated a social change agenda and begun weighing action strategies and evaluating the utility of litigation. Prior to that point, there is a different critical concern: access to information. Litigators cannot effectively drive social change unless they have complete and accurate information about the social ills they seek to correct.

   Take, for example, the problems facing state public defenders' offices, many of which find themselves "pushed ... to the breaking point" by "budget cuts and rising caseloads." (7) A recent study suggests that lawsuits filed over the last fifteen years have been fairly successful at "creat[ing] substantive, lasting reform" of indigent defense systems. (8) These so-called "second-generation" suits differ in kind from the ineffective assistance of counsel claims that public rights litigators filed in previous decades. (9) Many of the recent suits are "state-court class-actions, challenging objective criteria, such as excessive attorney caseloads [and] meager rates of attorney compensation." (10) In other words, these second-generation suits depend on data that quantitatively demonstrate the inadequacy of the relevant state's public defense system. Without specific and reliable programmatic information about "excessive" caseloads and "meager" compensation rates, the litigators pushing these suits could not have articulated--let alone realized--their reform goals.

   Over the last half century, Congress and state legislatures have adopted "right-to-know" laws that improve public access to this sort of information. For example, subject to certain exemptions, (11) the Freedom of Information Act (12) ("FOIA") grants "'any person'" the right to request and receive "'any record' in the possession and control of a federal agency, government corporation, or other federal entity." (13) Additionally, the Federal Advisory Committee Act (14) ("FACA") and Government in the Sunshine Act (15) direct certain committees and agencies, respectively, to open their meetings to the public. (16) Comparable state open-records and open-meeting laws govern disclosure of information about state and local government activities. (17) Additionally, various subject-specific statutes also mandate disclosure of particular categories of government information. To meet the requirements of the Federal Funding Accountability and Transparency Act of 2006, (18) for instance, the George W. Bush ("Bush") Administration created a public searchable database of all "government contract, grant and other award data." (19)

   These laws are far from perfect, of course. A few recently-identified weaknesses of particular relevance to public rights advocates include the laws' vulnerability to selective and highly politicized enforcement, (20) and their susceptibility to narrowing by the courts. (21) In addition, critics note that the laws are "reactive," requiring interested parties to request and then wait to receive relevant government records rather than simply making all non-classified records available in searchable databases. (22) State information laws suffer from similar flaws. For example, like FOIA, most are reactive. (23) Numerous authors have suggested practical reforms to correct these and other problems with the right-to-know laws, including amending open-records laws to mandate that agencies post some categories of records on the internet without waiting for a formal request. (24) Overall, whether public rights advocates tell a glass-half-full or half-empty story about our current network of right-to-know laws is a question of perspective. While the existing laws do provide access to some information essential to effective litigation, their many shortcomings may delay or even derail litigation efforts in particular situations. (25)

   Even if the laws were perfect, though, they could not solve two other access-to-information dilemmas for public rights litigators: (1) how to sift the vast quantities of public information for material that is useful, either because it evinces a violation of a widely-shared right, or because it could support legal action to vindicate such a right, and (2) how to obtain similarly useful information that is not publicly available (because, for example, it is classified (26) or qualifies for the deliberative process privilege (27)). The second dilemma speaks for itself, but the first requires some elaboration. The problem arises because federal and state governments generate enormous quantities of information. To cite just a few statistics on the federal side, the Federal Register, in which U.S. agencies publish all manner of actions, "weigh[ed] in" at 72,090 pages in 2007, (28) for a generation rate of about 200 pages per day. More overwhelming still, agencies must maintain a rulemaking record for many of the regulatory actions described in the Federal Register, and those records are often massive, comprising thousands or tens of thousands of pages of exhibits, hearing transcripts, agency reports, and comments by outside parties. (29) Searchable online databases of that information would do little to help public rights advocates sort the wheat from the chaff: the legally actionable conduct from the simply irresponsible from the utterly routine and reasonable. Diligent and fortuitous litigators might occasionally chance on a "smoking gun" in such a database, but thorough and effective culling of all or even most of the inculpatory or otherwise useful records requires a different kind of information: guidance from someone intimately familiar with the government activities under scrutiny.

   To give a concrete example of both information dilemmas in action, suppose a public rights group concerned about agency "capture" (30) by a regulated industry wishes to challenge as arbitrary and capricious (31) all environmental and public health and safety regulations in which a particular agency gave insufficient credence to the findings of staff scientists and placed excessive weight on the comments of industry lobbyists. With respect to the information published in the Federal Register or available in corresponding record pages, an inside source may be necessary to help the group locate and identify every example--or even just the most egregious examples--of arguable procedural misconduct (dilemma 1). Moreover, the group has no access to internal agency deliberations, (32) so even if the agency's private files contain smoking-gun evidence of information--processing irregularities--for instance, a redlined document clearly indicating that the agency edited an internal scientific report to redact all references to a certain scientist's findings and recommendations the group cannot obtain that evidence without assistance from an informant (dilemma 2). At least in the regulatory context, then, efficient and effective use of public rights litigation to drive coherent, coordinated change in government policy...