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Statements

A complaining witness's statement often determines whether a matter gets investigated any further. Vague allegations are often not resource-efficient to investigate ("too much trouble"). Oftentimes witnesses never get to review what the agent writes down. The self-help solution is generating your own written statement, to supplement any agent report.

Although whistleblowers and their private attorneys definitely want access to witness statements, they often can not. Of course, a whistleblower really wants to review a report where it short-circuits the investigation, to double-check for inaccuracies. Remember, witness review is never required, although it is more common where the investigation is going forward, particularly in civil matters as discussed below. Statements (of the whistleblower and other interviewed witnesses) would be evidence in private cases if they go to court, and also would show what the OSC or other investigator is doing or not doing about whistleblower retaliation. However, Congress feared releasing statements would lead witnesses to be less than candid with investigators, and so did not choose to follow the NLRB model (releasing witness statements at trial) in the OSC whistleblower context. Courts have upheld nonaccess to investigatory reports under FOIA's law enforcement exception.

A real problem arises where the MSPB treats a closed investigation as an adjudication, rather than a resource allocation issue within the law enforcement agency. The 1994 Amendments tried once again to make clear that an employee does not have to turn over the OSC's rationale for closure (especially if it mischaracterizes facts, as Congress heard the OSC often did) to the MSPB, only the documentation the employee submitted to the OSC. Therefore, some employee-witnesses prepare a 2-5 page statement and even review it with an attorney before talking with an agent or OSC examiner. Then they know the written statement, and can present it to the MSPB for review if they experience retaliation. Of course, think about and discuss both confidentiality and the investigative plan before turning over this or anything else to an investigator.

It probably is small consolation to learn that experienced criminal investigators rarely give witnesses copies of their notes or reports to verify, because of legal consequences should the underlying case go to trial. Where a witness reviews a statement written down by another person for accuracy, and it later turns out incomplete in some way, the witness may be held responsible, rather than the draftsman. However, here the concern is with poorly drafted interview reports of whistleblowers which lead to cases being closed. A written presentation provides some control over inaccuracies or assurance of judicial recourse where closure occurs.

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