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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