September 15, 2018
While the Office of the Whistleblower operates without any deadlines in processing Whistleblower Claims, these proposed rules extend additional deadline and requirements on Whistleblowers - some of whom have been misled by conflicting information provided by the Office of the Whistleblower.
For example, Mr. McKessy, Ms. Wharton, and others all have told Whistleblowers that in advance of filing a Claim for an Award, they could request their TCR records by contacting the Whistleblower Office and providing their name and description of TCR submission. Not only was this communicated privately, but the SEC's Website prominently stated:
"Please retain this submission number for your reference, but don't worry if you lose it, we will always be able to find your TCR by your name." (https://web.archive.org/web/20160328043849/http://www.sec.gov/about/offices/owb/owb-what-happens-to-tips.shtml)
However, when myself and others have asked the Office of the Whistleblower to provide these TCR records, no response was given. As a result of the Office of the Whistleblower's inadequate and factually incorrect communications, the SEC has unnecessarily added delays to the processing of numerous Whistleblower Claims. Let me explain why.
Whistleblowers face retaliation, family problems, and professional problems should it be discovered that they have submitted information to the SEC. (Although there are 'protections' in place, to realize those protections a Whistleblower likely needs to retain counsel and go through the time and stress of navigating uncharted waters, something very few do.) Due to the risks associated with being a Whistleblower, it is not often safe or possible to maintain copies of TCR records. For example, what if the Whistleblower lives in a company-subsidized apartment/on site living, uses a company provided computer, etc.
For a Whistleblower reporting significant fraud, it would be unfathomable for the Whistleblower to risk keeping the TCR records in a location that the company may find out and retaliate. This is especially true for Whistleblower tips involving multi-national companies or investment schemes that have a connection overseas or relate to fraud committed by quasi state owned enterprises. The potential fall-out for a Whistleblower, if found out, could be drastic.
Additionally, there exists the less precarious and potentially more common situation where a flash drive or storage medium used to save the TCR records becomes lost, corrupt, or even confiscated at a border crossing.
Therefore, myself and other Whistleblowers have, believing the SEC would make good on its word to provide copies of TCR tips before submitting a Whistleblower Claim, been unable to safely keep TCR records.
During my personal experiences, I communicated these problems to the SEC and was assured that I would be able to request a copy of my TCR records before the submission of a Whistleblower Claim.
However, I was very wrong. Once it came time to submit a claim, the Office of the Whistleblower stated it was not possible for them to provide me with a copy of my TCR records (even with a very short 90 day deadline to make a claim) and instructed me to go through the FOIAPA process, which has a backlog of nearly half a decade for complex FIFO requests.
Given such, the SEC has placed me (and others) in a very detrimental situation where we are unable to submit thorough Whistleblower Claims within the 90 day deadline for a Notice of Covered Action - and therefore will be forced to:
1.) Submit information on a continuous basis, as it becomes available either through FOIAPA process of other avenues
2.) Likely exercise our appeal rights immediately in order to gain access to the records that the SEC initially promised would be disclosed before filing a claim (causing subsequent delays to other Whistleblowers if they have also applied for the same Notice of Covered Action)
3.) Spend unnecessary time and money on the FOIAPA process when the SEC previously stated they would provide the documents directly through the Office of the Whistleblower
The Office of the Whistleblower and the Commissioners should be well aware of these adverse events and miscommunication by the Office of the Whitleblower, yet the proposed rules and continued operations of the Whistleblower Program shows that there is no good faith effort to avoid this situation and as written the proposed rules may make the situation even worse.
Unless the SEC provides an avenue for a Whistleblower to obtain a copy of his or her TCR records in advance of filing a Whistleblower Claim (such as through an automated online portal), numerous Whistleblowers who can not safely store their TCR records, or Whistleblowers who lost their TCR records will be prejudiced by the deadline to submit information before the end of the Notice of Covered Action 90 day deadline and will cause significant delays to other claims as they try to remediate this prejudice my exercising their appeal rights.