NSA Plan to Trash Employee Complaint Files Raises Concerns for Some

The National Security Agency plans to immediately discard records containing preliminary workplace complaints raised by employees. The files set to be destroyed are created by the NSA Ombudsman program, a low-profile office that resolves conflicts between personnel. It is not the ombudsman's job to handle reported abuses of power, rather inspectors general and diversity offices deal with those issues.

However, amid a legal battle about the potential improper disposal of whistleblower evidence, there are concerns that informal information reported by informants or victims of retaliation could be thrown out under the ombudsman policy.

"Destroy immediately after case is closed," state new recordkeeping instructions for working case files produced by the NSA ombudsman.

The files summarize issues presented to the ombudsman and are used to keep track of the matters informally, according to the NSA’s plans, which Nextgov obtained through the National Archives and Records Administration.

The contents relate to "confidential discussions protected from any outside inspection other than the NSA ombudsman," as well as "information provided anonymously with the intent to help resolve the matter," states NSA's rationale for disposal.

National Archives endorsed the policy March 23. "The office primarily provides support and referral services," Archives Senior Records Analyst Sean Curry said in the approval. "The short retention for these records supports the level of confidentiality afforded NSA staff members who utilize the ombudsman for assistance."

NSA officials declined to comment on the record about the ombudsman office.

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A majority of the dispute cases logged involve pay or promotions, Curry said. Other incidents pertain to peer-to-peer conflicts, job assignment concerns, and customer service. Some issues that have been raised had to do with "parking, cafeteria concerns, etc.," he said.

On the other hand, NSA whistleblower Thomas Drake  and his attorney Jesselyn Radack, who heads the Whistleblower and Source Protection Project at ExposeFacts, told Nextgov deleting the records could help suppress information about retaliation against personnel.

The Justice Department intends to probe a federal watchdog's findings that the Pentagon inspector general likely destroyed evidence during the Drake case, McClatchy reported March 21.

The Office of Special Counsel's conclusions and referral to Justice lend "credence to Drake’s claims that the Pentagon inspector general’s office did not properly maintain his confidentiality after he cooperated in 2002 and 2003 with congressional inquiries and a Pentagon inspector general audit of the National Security Agency’s controversial surveillance programs," the news outlet reported.

All federal agencies are mandated to identify records as either temporary or permanent. They are required to create instructions for transferring the permanent files to the Archives and for disposing the temporary files when they are no longer needed by the agency. These so-called records schedules must be approved by the Archives.

The NSA Ombudsman office is very low-profile, little understood outside NSA headquarters, even among the national security research community, whistleblower organizations and an NSA historian.

A former intelligence contractor who worked at NSA sites between 2009 and 2011 described the ombudsman office as the go-between for overseas personnel who want to lodge general complaints with the NSA inspector general in Fort Meade, Maryland.

Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, said any decision to destroy official records needs to be considered carefully, as it is irreversible.

Aftergood, who reviewed the request to discard records, said it seemed reasonable.  

"The reality is that not all government records are worth preserving permanently,” he said. “In fact, most of them are not. So, culling out those that can safely be disposed is a useful function. It's interesting to see that the disposition of official records like these gets more oversight than many other government functions."

On April 11, the Archives opened a 30-day period for the public to comment on the destruction timetable for the NSA ombudsman case files.