123STA T . 2 9 9 PUBLIC LA W 111 –5—FE B.1 7, 2 0 09 theap p ro pr i ate i ns pe c tor g enera l in accor d ance w ith sec - tion 5 5 2 ao f title 5 ,U nited S tates C ode ( co m monl y referred to as the ‘ ‘ P ri v acy A ct ’ ’ ).T he investigation of the inspector general shall b e deemed closed for p u rposes of disclosure under such section when an employee files an appeal to an agency head or a court of competent j urisdiction. ( B )C IV I LACT I ON . —I n the event the person alleging the reprisal brings suit under subsection (c)( 3 ), the person alleging the reprisal and the non- F ederal employer shall have access to the investigative file of the inspector general in accordance with the Privacy Act. (C) EX C EP TION.—The inspector general may e x clude from disclosure— (i) information protected from disclosure by a provision of law
and (ii) any additional information the inspector gen- eral determines disclosure of which would impede a continuing investigation, provided that such informa- tion is disclosed once such disclosure would no longer impede such investigation, unless the inspector general determines that disclosure of law enforcement tech- ni q ues, procedures, or information could reasonably be expected to ris k circumvention of the law or disclose the identity of a confidential source. (5) P R IVAC Y O F INFOR M ATION.—An inspector general inves- tigating an alleged reprisal under this section may not respond to any inquiry or disclose any information from or about any person alleging such reprisal, except in accordance with the provisions of section 552a of title 5, United States Code, or as required by any other applicable Federal law. (c) R EME D Y AND ENFORCEMENT A U T H ORITY.— ( 1 ) BURDEN OF PROOF.— (A) D I S CLOSURE AS CONTRI B UTIN G FACTOR IN REPRISAL.— (i) IN GENERAL.—A person alleging a reprisal under this section shall be deemed to have affirmatively established the occurrence of the reprisal if the person demonstrates that a disclosure described in subsection (a) was a contributing factor in the reprisal. (ii) USE OF CIRCUMSTANTIAL EVIDENCE.—A disclo- sure may be demonstrated as a contributing factor in a reprisal for purposes of this paragraph by cir- cumstantial evidence, including— (I) evidence that the official undertaking the reprisal knew of the disclosure; or (II) evidence that the reprisal occurred within a period of time after the disclosure such that a reasonable person could conclude that the disclo- sure was a contributing factor in the reprisal. (B) O PPORTUNITY FOR REBUTTAL.—The head of an agency may not find the occurrence of a reprisal with respect to a reprisal that is affirmatively established under subparagraph (A) if the non-Federal employer dem- onstrates by clear and convincing evidence that the non- Federal employer would have taken the action constituting the reprisal in the absence of the disclosure.
