The Supreme Court ruled Wednesday that only Congress has determined what information is exempt from disclosure under the Whistleblower Protection Act (WPA).
The high court decided in a 7-2 vote that Transportation Security Administration rules about “sensitive security information” did not trump the WPA protections claimed by a former air marshal, fired for revealing details about post-9/11 flight security plans.
Chief Justice John Roberts argued in the majority opinion that the relevant WPA provision on exemptions specifically singles out statutes, while others are more broad.
“Congress’s choice to say ‘specifically prohibited by law’ rather than ‘specifically prohibited by law, rule, or regulation’ suggests that Congress meant to exclude rules and regulations” from exemptions to WPA-protected disclosures, Roberts wrote, as SCOTUSblog noted.
Justices Sonia Sotomayor and Anthony Kennedy dissented.
In writing her minority opinion, Sotomayor said that the Aviation and Transportation Security Act of 2001, which created the TSA, “required agency action that would preclude the release of information ‘detrimental to the security of transportation.’”
Robert MacLean, the wrongfully dismissed air marshal in question, was fired for disclosing scaled-back deployment plans that, he believed, created operational security vulnerabilities.
The TSA effectively conceded that MacLean was a whistleblower after he made the anonymous disclosures, when it shelved its proposed personnel changes.
One of MacLean’s lawyers, Government Accountability Project legal director Tom Devine, described the decision as a landmark ruling.
“In the Supreme Court’s first case testing the Whistleblower Protection Act, freedom of speech won with an exclamation point,” he said.
