kent v. gsa full mspb decision march 8, 1993

8/3/2019 Kent v. GSA Full MSPB decision March 8, 1993

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UNITED STATES OF AMERICAMERIT SYSTEMS PROTECTION BO2

HARRY KENT, )Appellant, ))v. ))

GENERAL SERVICES ADMINISTRATION,)Agency. )

DOCKET NUMBERDC07529010241

MAR - 8 1993DATE:

Joseph B. Scott, Esquire, Kator, Scott, & Heller,Washington, D.C., for the appellant.Renn C. Fowler, Esquire, Washington, D.C., for theagency.

BEFOREDaniel R. Levinson, ChairmanAntonio C. Amador, Vice ChairmanJessica. L. Parks, Member

OPINION AND ORDER

The agency has petitioned for review of an initialdecision ordering cancellation of the appellant's demotion.For the reasons set forth below, we GRANT the agency'spetition under 5 U.S.C. 7701(e)(l), REVERSE the initialdecision in part, and SUSTAIN the agency's demotion action.

BACKGROUNDThe agency demoted the appellant from his GS-14 position

of Electronics Engineer to the GS-12 (Step 10) position of


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Communications Management Specialist for disclosure ofsensitive pre-award procurement information to an unauthorizedperson and for making false statements to investigatorsdenying such disclosure. See Initial Appeal File (IAF), Tab3, Subtab 4c. In its proposal notice, the agency stated that,as a result of allegations of disclosures of procurement-sensitive information appearing in The New Ycrk Times and Th/5Washington Times, the agency's Office of the Inspector General(OIG) conducted an investigation. See id. at Subtab 4g. Theproposal notice further stated that, although the appellantdenied making such disclosures to unauthorized persons inthree separate interviews, he later admitted disclosing a copyof a pre-award evaluation report to an unauthorized privatetelecommunications consultant. See id.

On appeal to the Board's Washington, D.C., RegionalOffice, the administrative judge found that, in 1987, theagency assigned the appellant to serve on a three-memberevaluation panel to assess responses to the agency's Requestfor Proposals (RFP) for a Technical Assistance and ManagementServices (TAMS) corcract. Initial Decision (ID) at 2. TheTAMS contract was a $41,000,000 service contract to providetechnical support and management assistance for the agency'sFederal Communications System (FTS) 2000 procurement. Id. Asa member of this panel, which was chaired by the appellant'ssupervisor, the appellant received a copy of a draft initialtechnical evaluation report dated August 17, 1987, prepared byhis supervisor. The agency characterized the contents of the


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report ar "'sensitive pre-award procurement information." IAF,Tab 3, Subtab 4c.

Th*j administrative judge found that the appellantviolated agency policy and procedures by providing a copy ox:this report to a telecommunications consultant, who was notauthorized to receive this information. * Jd. at 2-3 . Theadministrative judge credited the testimony of the agency'scriminal investigator that the appellant specifically deniedmaking any TA'-iS disclosures to other than the news media, and,accordingly, found that the appellant-s testimony that theinvestigators only asked him about disclosures to the presswas ineredib' and. unreliable. -See Initial Decision (ID) at3-5. He farrhsr found that the appellant^ false statementsto uhp OIG o;.v stitutr.cl the kind of conduct that has been foundby the Boar 1 to warrant disciplinary action. Jd. at 4. Heconcluded, however, that the disclosure was protected by theWhistleblower Protection Act of 1989 (WPA) , Pub, L* No, 101-12, 103 Stat. 16.

The administrative judge found that the amendment of thestatute to protect "any disclosure," together with its1 The private consultant wr;ja former agency employee who hadsupervised the appellant, See IAF, Tab 19, May 22, 1980Hearing Transcript (Tr. II) at IS (testimony of Robert J.Bushelle) . At the time of the unauthorized disclosure, he wasworking for the Mitre Corporation which had a separatecontract with the agency to work on the FTS 2000 project. Theconsultant was not directly involved with any of the offererson the RFP at issue here. He had previously indicated hiswillingness to help prepare a proposal in response to this RFPand had discussed his working on a response with one of theparties who ultimately did submit a proposal, but thesediscussions were not fruitful. Tr. II at 27, 63-64.


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legislative hir^ory, indicated that any disclosure wasprotected sc : o.ug as it was based upon a reasonable beliefthat the ini:on ration evidenced either a violation of any law,rule, or regulation, or gross mismanagement, a gross waste offunds, an abuse of authority, or a substantial and specificdanger to public health or s^iety, and it involved informationwhich was not required to ':* xept confidential. See ID at 5-6 In this connection, tlv- administrative judge further notedthat, if the disclosure at. issae is "specifically prohibitedby law," it must be in-!,:ie to the Special Counsel or theInspector General or other designated official to beprotected. See ID at 6 n.2. He rejected the agency'scontention th.it the appellant's disclosure was in factprohibited by law, and further found that the appellantreasonably believed that the report h-a disclosed showed thathis supervisor, the chairman of the evaluation panel, wasbiased and favorec one of the offerers. See ID at 6-14.

In rejecting the agency's contention that the disclosurewas specifically prohibited by law, the administrative judgefound that: The Federal Acquisition Regulation (FAR), setforth at 48 C.F.R. 15,413-1 (a) , did not have the force oflaw as required by 5 U.S.C. 2302(b)(8) and 5 C.F.R. 1209.5(b)(1)?2 as acknowledged by tha agency, the2 The administrative judge noted that 41 U.S.C. 423(b)(3)now prohibit;; disclosing "any proprietary or source selectioninformation regarding such procurement directly or indirectlyto any person other than a person authorized by the head ofsuch agency or the contracting officer to receive suchinformation.-"1 ID at 6 n.5. We note, however, that the effect


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Competition in Contracting Act, 41 U.S.C. 253, did notexpressly prohibit the pre-award disclosure of sensitiveinformation; and the Trade Secrets Act, 18 U.S.C. 1905, didnot "specifically'' prohibit disclosure of this type ofinformation. See ID at 6-7. The administrative judgetherefore concluded that, since the appellant had a reasonablebelief in government wrongdoing and thus met the reasonable-belief test, his disclosure constituted a protectedwhistleblowing activity under 5 U.S.C. 2302(b)(8), asamended by the WPA, and further found that it contributed tohis demotion. See ID at 14.

The administrative judge also found that thefalsification charge directly resulted from the appellant'sprotected activity. He noted that the agency's Penalty Guideprovided that, no misconduct occurs where there are "privileged

A * *communications."4 Finding that the appellant's falseof this statutory provision was temporarily suspended by theAct of November 30, 1989, Pub. L. No. 101-194, 103 stat. 1759,codified at 41 U.S.C. 423 note, for the period of one yearbeginning on the day after enactment. This prohibitiontherefore did not apply to the appellant's conduct.3 The administrative judge further noted that the agency didnot charge the appellant with a violation of any of thesestatutory and regulatory provisions. See ID at 6 n.3.4 Offense 14 of the agency's Penalty Guide, Table II, statesas follows*.

Refusal to provide information in connection with anauthorized investigation, and to furnish a signedstatement when required, except where such refusalis based upon grounds of self-incriLnination inpotential._ criminal prosecution, or_ privilegedcomitiunications.IAF, Tab 16, Agency Exhibit 21 (emphasis supplied).


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statements concerned his privileged or protected disclosure,the administrative judge concluded that the falsificationcharge could not be sustained, and that, since neither chargewas sustained, the agency had not shown by clear andconvincing evidence that it would otherwise have demoted theappellant* See ID at 14-15.

Accordingly, the administrative judge orderedcancellation of the agency action. He also ordered the agencyto afford the appellant interim relief in accordance with 5U.S.C. 770l(b)(2)(A), if the agency petitioned for review ofhis decision. See ID at 16.

In its petition for review, the agency challenges theadministrative judge's credibility determinations andconclusions of law.5 It argues, inter alia,, that; Theappellant, had not met the reasonable-belief test? theadministrative judge should have granted the agency's hearingrequest for the testimony of a Government Accounting Office(GAO) witness; he also should not have allowed the privateconsultant, who had received the sensitive pre-awardinformation, to testify for the appellant as an expertwitness; the disclosure was prohibited by FAR, which has theforce and effect of law within the meaning of 5 U.S.C. 2302(b)(8), as shown by the plain meaning of its statutorylanguage andf accordingly, unlimited disclosure was not5 Consistent with the Board's regulations set forth at 5C.F.R. 1201,115, the agency has certified that it hasafforded the appellant interim relief. See Petition forReview (PR) File, Tab 1 at 89-94.


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protected; the disclosure was prohibited by the Trade SecretsAct; and, in any event, the false statements were notprotected based on the legislative history of the WPA and theyalone warrant removal. The agency also requests that theBoard reopen the record to allow testimony by GAO officials,

In addition, DIG requests permission to file an amicuscuriae brief submitted along with its request. The appellantopposes this request on the basis that OIG should not beconsidered a separate entity from the agency, We note that,even if OIG does not constitute a separate entity, theappellant has not cited any authority that would preclude ourconsideration of this submission, nor do we find any. Sincethere is nothing in the Board's regulations that wouldpreclude a party from timely supplementing its petition forreview, we find that this timely-filed submission may properlybe considered as an additional submission by the agency. TheOIG argues, inter alia, that the WP&'s legislative historyshows that disclosure of information prohibited by the TradeSscr=its Act was not intended to be protected. It alsochallenges the administrative judge's reversal of thefalsification charge on the basis that it grew out of theprotected disclosure.


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ANALYSIS

l..-_,The Federal Acquisition Regulation is not a lawprohibitinq^dlsclpsure^ under 5 U... . C. 2 02 (b) (8) ._The Civil Service Reform Act of 1978 (CSRA), as amended

by the WPA# prohibits agencies fromsTak[ing] or fail[ing] to take, or threatening totake or fail to take a personnel action with respectto any employee . . because of ~

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any disclosure of information by an employee. . which the employee . . . reasonably believesevidences (i) a violation of any law, rule, or regulation, or(ii) gross mismanagement, a gross waste of funds, anabuse of authority, or a substantial and specificdanger to public health and safety,if such disclosure is not specifically prohibited bylaw and if such information is not specificallyrequired by Executive order to be kept secret in theinterest of national defense or the conduct offoreign affairs,(B) any disclosure to the Special Counsel ... orto the Inspector General of an agency or anotheremployee designated by the agency to receive suchdisclosures, of information which the employee . . ,reasonably believes evidences

(i) a violation of any law, rule, or regulation, or(ii) gross mismanagement, a gross waste of funds, anabuse of authority, or a substantial and specificdanger to public health and safety . . . ,5 U.S.C. 2302(b)(8) (emphasis added).6

Similarly, the Board's regulations provide as follows:Whistleblowing is the disclosure of information byan employee , . , that the individual reasonablybelieves evidences a violation of law, rule, orregulation,, gross mismanagement ? gross waste offunds, abuse of authority, or substantial and


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As noted above, the administrative judge found that theappellant's disclosure was protected by 5 U.S.C. 2302(b)(8)so long as it met "the reasonable belief test" and was tVnotrequired to be kept confidential." ID at 5-6. The appellantcontended that he believed that his supervisor was biasedtoward one of the offerers on the TAMS contract, and that,because of the consultant's expertise, the appellant disclosedthe evaluation report to obtain his opinion on whether thereport demonstrated such bias. See id. See also Tr. II at83-89 (testimony of Harry S. Kent). We agree that, in thesecircumstances, this disclosure comes within the protection ofsection 2302(b)(8) so long as the appellant establishes thathis disclosure was based on a reasonable belief of governmentwrongdoing and was not "specifically prohibited by law."

In this connection, the administrative judge found thatthe Federal Acquisition Regulation did not have the force andeffect of law and thus did not deprive the appellant'sdisclosure from the protection of section 2302(b)(8). See IDat 6-7. In its petition for review at 75-80, the agencyargues that; FAR is a Government-wide system of procurementrules that are legislative in nature under the agency's

specific danger to public health and safetya Itdoes not include a disclosure that is specificallyprohibited by law or required by Executive order tobe kept secret in the interest of national defenseor foreign affairs, unless such information isdisclosed to the Special Counsel, the InspectorGeneral of an agency, or an employee designated bythe head of the agency to receive it.5 C.F.R. 1209.4(b).


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intended to encompass rules or regulations. The statutorylanguage provides that the only other exception to theprotection afforded to these disclosures is where "suchinformation is not specifically required by Executive order tobe kept secret in the interest of national defense or theconduct of foreign affairs." Finally, we find that Congress'concern with internal agency rules and regulations impedingthe disclosure cf government wrongdoing, see S. Rep. No. 95-969, 95th Cong., 2d Sess. 12 (1978), reprinted in 1978 U.S.Code & Admin. News 2723, 2743, is consistent with thisrestrictive reading of the statutory language.

As the administrative judge noted, the legislativehistory of section 2302(b)(8), as originally enacted,indicates that "prohibited by law" refers to "statutory lawand court interpretations of those statutes . . . not ... toagency rules and regulatibns." H.R. Conf. Rep. No. 95-1717,95th Cong., 2d Sess. 130, reprinted in 1978 U.S. Code Cong. &Admin. News 2860, 2864. See ID at 6-7. The 1989 amendmentsto this provision did not expand the scope of this statutorylanguage to cover agency rules and regulations. Thus, weagree with the administrative judge's conclusion in this casethat there was no showing that FAR is a law specificallyprohibiting disclosure under 5 U.S.C. 2302(b)(8) and 5C.F.R. 1209.5(b)(1).


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2. Section 2302JJ8) does not protect the disclosure ofconfidential information to unauthorized persons where suchdisclosure is specifically prohibited by the Trade SecretsAct.The Trade Secrets Act provides as follows;Whoever, being an officer or employee of the UnitedStates or of any department or agency thereof,publishes, divulges, discloses, or makes known inany manner or to any extent not authorized by lawany information coming to him in the course of hisemployment or official duties . . . whichinformation concerns or relates to the tradesecrets, processes, operations, style of work, orapparatus, or to the identity, confidentialstatistical data, amount or source of any income,profits, losses, or expenditures of any person,firm, partnership, corporation, or association . .shall be fined no more than $1000, or imprisoned notmore than one year or both; and shall be removedfrom office or employment.

18 U.S.C. 1905 (emphasis supplied).As noted above, the administrative judge found that the

Trade Secrets Act did not prohibit the appellant's disclosureof the confidential evaluation report to the privateconsultant. In reaching this conclusion, he observed thatsection 1905 was a statute of "general applicability" whichdid not "specifically" prohibit disclosure of the kind ofinformation disclosed in this case, citing national Parks andConservation Association v. Dieppe, 547 F.2d 673, 686 (D.C.Cir. 1976). See ID at 6-7. He further found that section1905 only prohibits a disclosure wnot authorized by law/'while 5 U.S.C. 2302(b)(8) authorizes and encourages(disclosures of information which the employee reasonablybelieves evidences government wrongdoing. See ID at 7.


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While we agree that the fundamental purpose of section2302(b)(8) is to encourage such disclosures, it expressly doesnot authorize disclosure of confidential information tounauthorized persons, where such disclosure is "specificallyprohibited by law." Under the statutory scheme, 2302(b)(8)affords protection from a personnel action taken fordisclosure of such confidential information only where it ismade to the Special Counsel, the Inspector General, or adesignated agency contact.9 Compare 5 U.S.C. 2302(b)(8)(A)with 5 U.S.C. 2302(b)(8)(B). Accordingly, we find that theadministrative judge erred in finding that 5 U.S.C, 2302(b)(8) authorizes the disclosure of such confidentialinformation to anyone and that the Trade Secrets Act thereforedid not apply. See ID at 7.

We also find that National Parks and ConservationAssociation v. Dieppe does not preclude the applicability ofthe Trade Secrets Act as a limitation on the protectionafforded under section 2302(b)(8). In Kleppe, 547 F.2d at686, the court held that section 1905 is "a statute ofgeneral applicability and not one that specifically defines orcategorizes the information to be covered within the thirdexemption [of the Freedom of Information Act (FQIA), codifiedin 5 U.S.C. 552(b)(3)].* Although the FOIA seeks primarily

9 As noted below, the legislative history of section2302(b)(8) indicates that disclosure to an appropriate unit ofCongress is also protected. See note 14. See also 5U.S.C. 2302(b).


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to promote public disclosure of information collected t>ygovernment officials, it recognizes specific public andprivate interests that are set forth in 5 U.S.C. 552 (b) asexemptions to its disclosure requirements.10 See Martin v.Lauer, 686 F.2d 24, 33 (D.C. Cir. 1982) (citing Chrysler v.Brown, 441 U.S. at 1705).

The cases involving the third exemption, includingDieppe, have therefore refused to incorporate the TradeSecrets Act into the third exemption, finding that Congressamended 5 U.S.C. 552(b)(3) to remove section 1905 as a basisfor non-disclosure under that exemption, but that it remainsoperative under the fourth FOIA exemption ~- trade secrets andcommercial or financial information thus prohibiting anagency from revealing such information. See CNA FinancialCorp. v. Donovan, 830 F.2d 1132, 1144-52 (D.C. Cir. 1987)?Dieppe, 547 F.2d at 686-87. In Donovan, the court further-held that the FOIA can provide "the requisite legal10 The FOIA provides in pertinent part:

This section does not apply to matters that are * * *(3) specifically exempted from disclosure by statute. . . , provided that such statute (A)requires thatthe matter be withheld from the public in such amanner as to leave no discretion, or (B) establishesparticular criteria for withholding or refers toparticular types of matters to be withheld;(4) trade secrets and commercial or financialinformation obtained from a person and privileged orconfidential; . . . .

5 U.S.C 552(b).


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authorization to disclose agency-gathered commercial andfinancial data" to the extent that such data "do not fallwithin one of the FOIA exemptions, particularly Exemption 4 or6."11 830 F.2d at 1142.

We conclude that the Trade Secrets Act does apply tosection 2302(b)(8). We find that the statutory term"specifically prohibited by law* contained i?,i 5 U.S.C. 2302(b)(8) is unclear and ambiguous; thereby compellingresort to legislative history in order to construe thestatute. See Federal Aviation Administration v. jRoJbertson,422 U.S. 255, 262-63 (1975) (the former statutory language of

1 As we discuss below, such authorization does not existhere where the disclosure was not made under the FOIA.We note that, in Donovan, 830 F,2d at 1141, the court didnot discard section 1905 in finding that "the Trade Secrets

Act does not, by virtue of Exemption 3, erect a disclosure barthat is impervious to the"mandate of FOIA." Rather, it foundthat the Trade Secrets Act "represents a uniform,comprehensive, and reasonable though perhaps stringentapproach to discouraging unauthorized disclosures of privatecommercial and financial data entrusted to the Government."Id., 830 F*2d at 1151. Th3 court thus found that "the scopeof the Act is at least coextensive with that of exemption 4 ofthe FOIA" ("trade secrets and commercial or financialinformation obtained from a person and privileged orconfidential") "and that, in the absence of a regulationeffective to authorize disclosure,^ the Act prohibited theagency from releasing such information. Id. Finding furtherthat, in setting forth certain exemptions to the disclosure ofinformation under the FOIA, particularly exemptions 4 and 6,Congress had carefully balanced the different interestsinvolved, including the public interest in disclosure, thecourt stated that its resolution of the exemption 3 issue"does not undermine the foundation of the Trade Secrets Act bythrowing open the door to wholesale, haphazard revelation ofprivate financial and business data in the possession ofgovernmental agencies." Id. at 1142.


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the FOIA at 5 U.S.C. 552(b)(3), "specifically exempted fromdisclosure by statute," was ambiguous because it "'contain[ed]no 'built-in7 standard as in the case of some of the otherexemptions").12 We also find that, unlike the legislativehistory of 5 U.S.C. 552(b)(3),13 the legislative history of5 U.S.C* 2302 demonstrates that section 1905 was deemed tobe a law that specifically prohibited disclosure. See H.R.

12 In Robertson , 422 U.S. at 263, 265, the court also notedthat the "[legislative] history must be read in light of thelegislation in existence when the [FOIA] was passed." Thecourt also discussed the term "specific," stating that itcould not be applied only to documents specified, i.e.,bynaming them precisely or by describing the category in whichthey fall, and that to "require this interpretation would beto ask of Congress a virtually impossible task." Id. at 26ft.We recognise that courts have stated that Congress overruledthis decision in amending the FOIA to set forth certainstatutory conditions for 'exempting disclosure under 5 U.S.C. 552 (b)(3), See note 13. However, Congress ha? not enactedsimilar restrictions as to section 2302{b){8). We thereforefind that we rrust acknowledge the viability of the SupremeCourt's reasoning in Robertson to the extent that it applieshere,13 See, e.y.f Anderson v. Department of Health & Hum^nServices, 907 F,2d 936, 949 (10th Cir. 1990) (legislativehistory of the 1976 amendment of the FOIA clearly states th&tsection 1905 was not intended to qualify as a disclosurestatute) ; Nationwide Mutual Insurance Co. v. Friedman, 451!'.Supp. 736, 742-43 (D. Md. 1978) (legislative history r,f"Government in Sunshine Act"section 1905 as basis forcoincides with another FOIAFinancial Corp. v. JDonovr*:/,Cir. 1987) ("our revieparticularly the history o: tdoes not definitely answerSecrets Act was intendedwithholding statute [; i]t

shows definite intent to remotenondisclosure, except where : u.^-aption category). But see Ct 4i :.?0 F.2d 1132, 1142 n.70 (D.C ,1. 1 the legislative material1976 amendment to Exemption "* le question whethe." :heTrsc ..by Congress to be


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Conf. Rep. No. 95-1717 at 132, reprinted in X978 U.S. Code &Admin. News 2860, 2865.14

We therefore hold -hat section 2302(b)(8) does notprotect the disclosure of highly confidential information tounauthorized persons where such disclosure is specificallyprohibited by section 1905.

14 The House Conference Report states as follows:The conference substitute in 2302 adopts the Senateprovision. The provision is intended to make clearthat by placing limitation on the kinds ofinformation any employes may publicly disclosewithout suffering reprisal, there is no intent tolimit the information an employee may provide toCongress or to authorize reprisal against anemployee for providing information to Congress. Forexample. 18 U.S.C. 1905 prohibits public disclosureof information involving trade secrets. Thatstatute does not apply to transmittal of suchinformation by an agency to Congress. Section2302fbl(8) of this act would not protect an employeeagainst reprisal for such statutorily protectedinformationf but it is not inferred that an employeeis similarly unprotected if such disclosure is madeto the appropriate unit of Congress. Neither titleI nor any other provision of the act should beconstrued as limiting in any way the rights ofemployees x:o communicate with or testify beforeCongress.

(Emphasis supplied.) We find that this discussion of . ction2302 in the House Report is significant; especially in view ofthe general rule that ^repeals by implication are disfavored."FAA v. Robertson, 422 U.S. at 265-66 (citing Morton v.Mancari, 417 U.S. 535, 551 (3,974) (when courts are confrontedwith statutes capable of coexistence, it is the duty of thecourts, absent clearly expressed congressional intention tothe contrary, to regard each as effective)).


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183. Since,jthe^appellajit's disclosure was prphibitedL_by_th_eTrade Secrets _Act,__we find that the charges TOUSt_be._sustajjTedand that the agency's demotion action promotes the efficiencyof the service.Section 1905 prohibits disclosure to an unauthorized

person of confidential information relating to the "processes,operations, style of work, or apparatus" as wall as to the"identity" of any person or other legal entity. As we discussabove, the draft August 7, 1987 report disclosed by theappellant iden ified the offerers to the agency's RFP andevaluated their responses for the TAMS contract in light of avariety of factors, including the processes for designingsolutions, the skill and number of personnel assigned to thetechnical tasks, the confirmed availability of staff,organizational development, and adequacy of internal qualityreview of work activities. IAF, Tab 12, Subtab W5-5. Indiscussing the strengths and weaknesses of the responses, as

, well as assigning a numerical score based on such factors, thereport further described the "processes, operations, style ofwork, or apparatus" of each offerer. See id. We thereforefind that the appellant's disclosure of this confidentialreport to a consultant who was not authorized to receive thisinformation violated section 1905,

We find that there is no basis for concluding that theappellant's disclosure was exempted from section 1905 since itwas not made "in any manner or to any extent authorized bylaw." As we discuss above, the WPA does not independentlygive an individual the authority to reveal confidentialinformation to an unauthorized person, but such information


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must be disclosed to the Special Counsel, the agency'sInspector General, or any other designated agency official.While the FOIA sets forth procedures for the disclosure ofcertain information, this disclosure was not made pursuant toa FOIA request. We therefore conclude that the agency is notrequired to make the same confidentiality showing that wouldbe required i:or an exemption to be shown under 5U.S.C. 552(b)(4), including the likelihood of substantialcompetitive injury. See U.S. v. Wallington, 839 F.2d 573,579-80 (5th Cir. 1989) ("confidential*' under section 1905requires that the agency have at least an official policy thatthe information not be disclosed or that non-disclosure bemandated by statute or regulation); CNA Financial Corp. v.Donovan, 830 F.2a at 1152 & n.143 (information is"confidential" under exemption 4 of the FOIA if it is likelyto cause substantial harm to a person from whom theinformation was obtained),

In any event, we find that such substantial harm has beenshown here, especially where, because of the timing and mannerof the appellant's disclosure, the sensitive pre-awardcommercial information was likely to substantially andunfairly benefit an individual offerer to the disadvantage ofthe competitive positions of the other offerers. Of. Baker v.Department of Health & Human Services, 912 F.2d 1448, 1554-55(Fed. Cir. 1990) (disclosure of official governmentinformation, "not made available to the general public/7ranking the relative technical capabilities of companies being


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considered for a government contract to a potentialsubcontractor at a private meeting violated agency regulationsprohibiting the disclosure of confidential information).

We thus conclude that the appellant's disclosure was notprotected by the WPA.15 We further find that the appellant'sfalse statement to the OIG on August 31, 1988, when he deniedproviding the report to the consultant, did not constitute"privileged communications,* as found by the administrativejudge. See ID at 14-15.

Accordingly, we find that the agency's charges must besustained and that they warrant disciplinary action. See IDat 4 (citing Greer v. U.S, Postal Service, 43 M.ScP.R. 180,184-85 (1990)). Further finding that the agency exercised itsdiscretion within the parameters of reasonableness and thatdemotion is an appropriate penalty, we conclude that thedemotion action promotes the efficiency of the service. SeeBaker v. Department of Health & Human Services, 41 M.S.P.R.363, 365-368 (1989) (removal was reasonable for sustainedcharges of divulging confidential information to asubcontractor and accepting a gratuitous lunch, despiteabsence of personal gain or attempt to influence award, andthe appellant's past exemplary service of over 28 years with

15 Because we find that such disclosure was not protected, wedo not reach the issue of whether the appellant met thereasonable-belief test. Since the agency's motion to reopenthe record to allow testimony by GAO officials relates totestimony that it contends pertains to whether the appellantmet the reasonable-belief test, we also deny this request.


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no disciplinary record), aff'd, 912 F.2d 1448 (Fed. Cir.1990).

ORDERThis is the final order of the Merit Systems Protection

Board in this appeal. 5 C.F.R. 1201.113(c).NOTICE TO APPELLANT

You have the right to request the United States Court ofAppeals for the Federal Circuit to review the Board's finaldecision in your appeal if the court has jurisdiction. See5 U.S.C. 7703(a)(l). You must submit your request to thecourt at the following address:

United States Court of Appealsfor the Federal Circuit717 Madison Place, N.W.Washington, DC 20439The court must receive your request for review no later than30 calendar days after receipt of this order by your

,

representative, if you have one, or receipt by you personally,whichever receipt occurs first. See 5 U.S.C. 7703(b)(l).

FOR THE BOARD:/Clerk of the Board /Washington, D.C.

kent v. gsa full mspb decision march 8, 1993

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