Confidentiality protections for whistleblowers can take many different forms. The confidentiality protections in Dodd-Frank-style programs are seen as the gold standard,[1] but these were far from the first. As described in this post, the IRS Whistleblower Program and the False Claims Act employ different measures to protect whistleblower confidentiality and have both strengths and drawbacks for whistleblowers.  Whistleblowers must be fully aware of how their confidentiality is protected under these laws before filing a complaint.

Internal Revenue Service Whistleblower Program

The IRS Whistleblower Program, as it currently exists, was created in 2006 by section 406 of the Tax Relief and Health Care Act (TRHCA).^[2] Although there are no statutory confidentiality guarantees in section 406 of the THRCA, whistleblower information submitted to the IRS is considered “taxpayer return information” and, therefore, receives the same extremely high confidentiality protections as other taxpayer return information.^[3] The statute states that disclosure of taxpayer information shall not occur “if the Secretary determines that such disclosure would identify a confidential informant or seriously impair a civil or criminal tax investigation.”[4] Furthermore, IRS regulations state that: “Under the informant’s privilege, the IRS will use its best efforts to protect the identity of whistleblowers,” although an exception does exist if the IRS chooses to use the whistleblower as a witness in a judicial proceeding.^[5]

In practice, the IRS is very strict about limiting the release of any whistleblower information. Attorneys for an IRS whistleblower must file a Form 2848, which must be submitted with the whistleblower’s original, handwritten (wet ink) signature, in order to discuss the case with the IRS whistleblower office or any IRS staff member. The IRS also can only release information on the status of a whistleblower action in the form of an official Status and Stage letter.[6]Recipients cannot disclose the information in these letters to third parties under pain of criminal prosecution.[7]

Case precedent provides further guarantees for whistleblower confidentiality. In Montgomery v. IRS, 40 F.4th 702 (2022), the Court of Appeals upheld the ability of the IRS to issue Glomar responses – neither confirming nor denying the existence of records – to Freedom of Information Act (FOIA) requests.^[8] The term “Glomar response” derives from the CIA’s practice of “refusing to confirm or deny the existence of the requested records” to protect its covert operations from becoming publicly known.^[9] In Montgomery, the petitioners suspected that there may have been a whistleblower in the discovery of their tax scheme. They filed FOIA requests to determine if such a whistleblower existed. The IRS responded with Glomar statements, asserting that even confirming the existence of documents would violate the confidentiality of any whistleblowers in the case. The court upheld this practice, allowing the IRS to issue Glomar responses to all FOIA requests regarding the IRS whistleblower program. Therefore, while the IRS does not permit anonymous whistleblowing, it ensures whistleblowers the same level of confidentiality that the CIA affords its covert operations.

False Claims Act

The False Claims Act allows whistleblowers, here referred to as “Relators,” to file lawsuits on behalf of the government. Relators file these qui tam cases when they allege fraud against the government.[10] This often involves government contracting or Medicare fraud. The False Claims Act does not have the same type of confidentiality protections as other programs. Instead, Relators file their lawsuits “under seal.” They are therefore not available to the public like other court filings.[11] The Department of Justice then decides whether to pursue the case (intervene) or not (decline).[12] After the DOJ makes its decision, the case is unsealed and becomes public. Whistleblowers must be aware that under this process, the claim and filings will eventually become public and known to the defendant.

To increase their anonymity, some whistleblowers form a Limited Liability Company (“LLC”) to serve as the relator in the qui tam case.[13] When the court lifts the seal, the name of the LLC is disclosed instead of the individual whistleblower’s name. If the case proceeds to litigation, the whistleblower’s identity as the representative or owner of the LLC will likely become known through the normal discovery process. Additionally, someone representing the LLC will need to sign a settlement agreement. While there are additional confidentiality protections when filing a qui tam case under the name of an LLC entity, they are limited.

Conclusion

The IRS Whistleblower Program offers strict confidentiality protections for whistleblowers, ensuring that it will not disclose their identities; however, the program does not permit anonymous filings. The False Claims Act allows whistleblowers to file their cases “under seal,” making the entirety of the case, as well as the whistleblower’s identity, confidential. However, these cases do not remain under seal permanently, and the whistleblower’s identity can be revealed through the discovery process during the litigation of the case.

Whistleblowers must be fully aware of how confidentiality protections work before filing a whistleblower claim. Ensuring their confidentiality is protected to the fullest extent is the strongest way that a whistleblower can protect themselves from retaliation.

ENDNOTES

[1] See Benjamin Calitri, Cole Nemes, Jacob Rusting, and Alice Wanamaker, Kohn, Kohn & Colapinto Discusses Confidentiality Protections for Whistleblowers, Columbia Law School Blue Sky Blog (Oct. 7, 2025), https://clsbluesky.law.columbia.edu/2025/10/07/kohn-kohn-colapinto-discusses-confidentiality-protections-for-whistleblowers/.

[2] 26 U.S.C. § 7623(b); Tax Relief and Health Care Act of 2006, 120 Stat. 2958-60 (Dec. 20, 2006), https://www.congress.gov/109/plaws/publ432/PLAW-109publ432.pdf; see History of the Whistleblower Program, IRS, https://www.irs.gov/compliance/history-of-the-whistleblower-program.

[3] 26 U.S.C. § 6103(b)(2).

[4] 26 U.S.C. § 6103(h)(4).

[5] 26 CFR § 301.7623-1(e) (“In some circumstances, the IRS may need to reveal a whistleblower’s identity, for example, when it is determined that it is in the best interests of the Government to use a whistleblower as a witness in a judicial proceeding. In those circumstances, the IRS will make every effort to notify the whistleblower before revealing the whistleblower’s identity.”).

[6] IRC § 6103(k)(13)(B); The Whistleblower Claim Process, IRS Publication 5251, https://www.irs.gov/pub/irs-pdf/p5251.pdf.

[7] IRC § 6103(k)(13)(B); IRC § 7213(a)(2).

[8] Montgomery v. IRS, 40 F.4th 702 (2022); 26 U.S.C. § 7623(b); 26 C.F.R. 301.7623-1(e).

[9] Phillippi v. CIA, 546 F.2d 1009 (1976).

[10] 31 U.S.C. §§ 3729-3733.

[11] 31 U.S.C. § 3730(b)(2) (“The complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders. The government may elect to intervene and proceed with the action within 60 days after it receives both the complaint and the material evidence and information.”); Provisions for the Handling of Qui Tam Suits Filed Under the False Claims Act, Criminal Resource Manual 923, Department of Justice, https://www.justice.gov/archives/jm/criminal-resource-manual-932-provisions-handling-qui-tam-suits-filed-under-false-claims-act.

[12] If the DOJ declines the case, the relator may still proceed with litigating the case, unless the government recommends a dismissal. 31 USC § 3730(c)(2)(A); (c)(3).

[13] Healthcare Fraud Lawyers, KKC, https://kkc.com/whistleblower-services/healthcare-fraud-lawyers/.

Benjamin Calitri, Cole Nemes, Jacob Rusting, and Alice Wanamaker are at the law firm of Kohn, Kohn & Colapinto LLP.