CRS-3 §2308(b)(8)(A). However, disclosures which are otherwise "protected" disclosures, may be made, regardless of statutory and executive order secrecy requirements, to the Special Counsel of the Merit System Protection Board, or to an Inspector General of an agency or "another employee designated by the head of an agency to receive such disclosures." 5 U.S.c. §2308(b)(8)(B). statute further expressly provides that the whistleblowing provisions are "not to be construed to authorize the taking of any personnel action against ... an employee who discloses information to the Congress." 5 U.S.c. §1202(b). The Congress sought to protect its right to receive even "confidential" The information from federal employees, without the employee's fear of reprisals: The provision is intended to make clear that by placing limitations on the kinds of information any employee may publicly disclose without suffering reprisal, there is no intent to limit the information an employee may provide to Congress or to authorize reprisal against an employee for providing information to Congress. For example, 18 U.S.C. 1905 prohibits public disclosure of information involving trade secrets. That statute does not apply to transmittal of such information by an agency to Congress. Section 2302(b)(8) of this act would not protect an employee against reprisal for public disclosure of such statutorily protected information, but it is not to be inferred that an employee is similarly unprotected if such disclosure is made to the appropriate unit of the Congress. Neither title I nor any other provision of the act should be construed as limiting in any way the rights of employees to communicate with or testify before Congress. H.R. Rpt. No. 1717 (Conference Report), Public disclosures that are prohibited by law, and so not protected by the whistleblowing statutes, are intended by Congress to be those that are prohibited by statutory law, or by executive order for national security CRS-4 reasons, and not those that are merely prohibited by regulation. An agency could not properly retaliate against an employee for the disclosure of protected whistleblowing information merely because the disclosure violated agency regulations. As noted in the Conference Report on the whistleblowing legislation: "The reference to disclosures specifically prohibited by law is meant to refer to statutory law and court interpretations of those statutes. It does not refer to agency rules and regulations." H.R. Rpt. No. 1717, supra at 130. The non-disclosure or secrecy agreement in question, SF 189, requires as a condition to the access to classified information that the employee agree, among other things, never to divulge "classified information," which is defined to mean "information that is either classified or classifiable under the " statute standards of Executive Order 12356, or under any other Executive Order or The restrictions in the secrecy agreement on the disclosure of information which is not specifically classified under the Executive Order, but merely "classifiable," raise questions as to the consistency of the agreement with the whistleblowing protections of federal law and the purposes of the whistleblowing statute. To be consistent with the whistleblowing protections it would appear that the secrecy agreement would have to permit without punishment or negative personnel action, the public disclosure of information which the employee believes evidences a violation of law, or waste, fraud or abuse, and which is not specifically classified information or specifically required to be kept secret under E.0. 12356 or other Executive Order, and must allow the disclosure of information evidencing such illegality, waste, fraud or abuse to the Special Counsel, an Inspector General, or to the Congress even if the information is CRS-5 classified or required to be kept secret. It is not clear whether or not the secrecy agreement on its face would subject an employee to loss of security clearance for any such disclosures. The secrecy agreement would allow revocation of one's security clearance for the disclosure of not only "classified" information, but also for "classifiable" information. The non-disclosure or secrecy agreement does not precisely state what information would come within the term "classifiable," a term whose scope is apparently a matter of some conjecture at this time. It should be noted that the Executive Order referenced in the agreement, E.0. 12356, provides, at Section 1.3, that: (a) Information shall be considered for classification if it concerns: .་ CRS-6 under this subsection shall be reported (b) Information that is determined to concern one or more of disclosure, either by itself or in the reasonably could be expected to cause Thus a broad range of information relating to weapons, weapon systems, the problems or vulnerabilities of such systems, foreign relations, etc., might conceivably be that type of information which could arguably be considered "classifiable" or "considered for classification" under the Executive Order, even if not classified at the time. Under the "classifiable" standard, it is arguably possible that the secrecy agreement may go beyond the Executive Order and actually punish the disclosure of information which is not at that time classified or required to be kept secret under the Executive Order, but could be in the future, and thus punish someone for an after-the-fact classification. Even information which has been de-classified is subject to possible reclassification at a later date, E.0. 12356, Section 1.6(c) and (d), and could thus presumably be called "classifiable," and subject one to penalties for disclosure under the secrecy agreement. To the extent that the secrecy agreement subjects to discipline the disclosure of information that is not in fact required to be kept secret under the Executive Order, it is arguably in conflict with the language and intent of the whistleblowing law, which would seem to provide that such disclosures are "protected." 5 U.S.C. $2308(b) (8) (A). CRS-7 It should be noted that the Executive Order states that when there is a reasonable doubt about the need to classify information, one should protect that information as if it were classified "pending a determination" by an authority within 30 days. Section 1.1(c). The Executive Order may thus in this specific instance require information to be kept secret, pending a determination, even when the information is not yet classified, and thus the public disclosure of that information would not appear to be "protected" under the specific language of the whistleblowing statute. In a practical sense and as a general matter, to the extent that the secrecy agreement because of its apparent breadth and vagueness of terms chills or discourages the disclosure of any information which evidences waste, fraud, corruption or illegality in government, that effect or result would be in contrast to and in derogation of the intended results of the whistleblowing statute. See S. Rpt. No. 969, supra at 7-8. In a legal context it may be argued that the whistleblowing law should protect an employee from a negative personnel action such as loss of one's security clearance for the public disclosure of information that is not classified or required to be kept secret at the time of disclosure by the Executive Order. 5 U.S.C. §2308(b)(8)(A). If such information is required to be kept secret only by the non-disclosure agreement, and not specifically by the Executive Order or a statute, it should, arguably, still be a "protected" disclosure. See H.R. Rpt. No. 1717, Conference Report, supra at 130. However, cases and experience have shown that whistleblowing protections may be difficult to enforce in court on behalf of an employee. example, Hearings, H. Comm. on Post Office and Civil Service, "Whistleblower See, for |