[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
TRANSPARENCY AT TSA
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HEARING
BEFORE THE
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
MARCH 2, 2017
__________
Serial No. 115-17
__________
Printed for the use of the Committee on Oversight and Government Reform
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Available via the World Wide Web: http://www.fdsys.gov
http://oversight.house.gov
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Committee on Oversight and Government Reform
Jason Chaffetz, Utah, Chairman
John J. Duncan, Jr., Tennessee Elijah E. Cummings, Maryland,
Darrell E. Issa, California Ranking Minority Member
Jim Jordan, Ohio Carolyn B. Maloney, New York
Mark Sanford, South Carolina Eleanor Holmes Norton, District of
Justin Amash, Michigan Columbia
Paul A. Gosar, Arizona Wm. Lacy Clay, Missouri
Scott DesJarlais, Tennessee Stephen F. Lynch, Massachusetts
Trey Gowdy, South Carolina Jim Cooper, Tennessee
Blake Farenthold, Texas Gerald E. Connolly, Virginia
Virginia Foxx, North Carolina Robin L. Kelly, Illinois
Thomas Massie, Kentucky Brenda L. Lawrence, Michigan
Mark Meadows, North Carolina Bonnie Watson Coleman, New Jersey
Ron DeSantis, Florida Stacey E. Plaskett, Virgin Islands
Dennis A. Ross, Florida Val Butler Demings, Florida
Mark Walker, North Carolina Raja Krishnamoorthi, Illinois
Rod Blum, Iowa Jamie Raskin, Maryland
Jody B. Hice, Georgia Peter Welch, Vermont
Steve Russell, Oklahoma Peter Welch, Vermont
Glenn Grothman, Wisconsin Matthew Cartwright, Pennsylvania
Will Hurd, Texas Mark DeSaulnier, California
Gary J. Palmer, Alabama John Sarbanes, Maryland
James Comer, Kentucky
Paul Mitchell, Michigan
Jonathan Skladany, Staff Director
William McKenna, General Counsel
Christina Aizcorbe, Intergovernmental Affairs Subcommittee Staff
Director
Michael Howell, Counsel
Sharon Casey, Deputy Chief Clerk
David Rapallo, Minority Staff Director
C O N T E N T S
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Page
Hearing held on March 2, 2017.................................... 1
WITNESSES
Huban A. Gowadia, Ph.D., Acting Administrator, Transportation
Security Administration
Oral Statement............................................... 6
Written Statement............................................ 8
The Hon. John Roth, Inspector General, U.S. Department of
Homeland Security
Oral Statement............................................... 17
Written Statement............................................ 19
The Hon. Carolyn Lerner, Special Counsel, U.S. Office of Special
Counsel
Oral Statement............................................... 29
Written Statement............................................ 31
APPENDIX
March 1, 2017, Letter from TSA to Chairman Chaffetz, submitted by
Mr. Chaffetz................................................... 62
TRANSPARENCY AT TSA
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Thursday, March 2, 2017
House of Representatives,
Committee on Oversight and Government Reform,
Washington, D.C.
The committee met, pursuant to call, at 10:00 a.m., in Room
2154, Rayburn House Office Building, Hon. Jason Chaffetz
[chairman of the committee] presiding.
Present: Representatives Chaffetz, Duncan, Amash, Gosar,
Meadows, Blum, Hice, Grothman, Palmer, Comer, Mitchell,
Cummings, Norton, Connolly, Kelly, Lawrence, Watson Coleman,
Plaskett, Demings, Welch, DeSaulnier, and Sarbanes.
Chairman Chaffetz. The Committee on Oversight and
Government Reform will come to order. And without objection,
the chair is authorized to declare a recess at any time.
I appreciate you being here on this important topic,
Transparency at the TSA. Today, the committee will explore the
lack of transparency at the Transportation Security
Administration. We will hear testimony from the Office of
Special Counsel, often known as the OSC, and the Department of
Homeland Security's inspector general about problems they are
having with the TSA.
Congress created the Office of Special Counsel to
investigate and prosecute violations of prohibited personnel
practices, especially whistleblowing. In order for the OSC to
complete its mission, agencies are required to produce complete
and unredacted documents to the Office of Special Counsel.
Unfortunately, the TSA is not fulfilling their legal
obligation to produce documents, frustrating OSC's
investigative efforts. And I can tell you with a passion on
both sides of this aisle, it is not acceptable to withhold
information. It is something we have both committed to, on both
sides of the aisle, to help protect and ensure that
whistleblowers are protected.
You have a right in this government, as a government
employee, to blow the whistle. But when the TSA withholds
documents and does not allow the OSC to do its job, that's
wholly unacceptable.
Former TSA Administrator Peter Neffenger testified before
the committee last May that the TSA would base its response to
allegations of whistleblower retaliation on OSC's findings. But
now, TSA is withholding the documents OSC needs to complete its
investigation. So on one hand you have the TSA administrator
saying: Oh, we're going to base our conclusions on the findings
of OSC, but the TSA won't give all the information to the OSC.
Today, I do not want to hear about how voluminous the
documents are. I don't want to hear about how many you've given
them. There is but one metric that is important to me, and that
is the percentage. If you dare go to the place to tell us about
how many documents you turned over, every time you do so, we
will ask you what percentage of the documents did you actually
turn over.
TSA is one of the agencies in most need of the OSC's work.
Since 2012, the OSC received approximately 243 cases from TSA
employees alleging retaliation for blowing the whistle. A lot
happens, very few blow the whistle, but when they blow the
whistle, to have 243 people say that there was retaliation is a
number that is a flashing red light and scares us.
The committee is constantly hearing how complaints from TSA
employees about how the agency is a hostile work environment
for whistleblowers. It has been almost a year since our last
hearing on mismanagement at the agency. It's disheartening that
we find ourselves here again. It's frustrating, and it
shouldn't happen.
TSA selectively withholds information from OSC by asserting
a common law attorney-client privilege that does not apply to
interagency disputes. TSA's chief counsel, Francine Kerner, the
agency's chief counsel since the agency's inception more than
15 years ago, could not identify the client holding the
privilege. When pressed, Kerner informed the staff that, quote,
TSA has no legal obligation to turn over documents to the OSC,
end quote. Kerner's inability as chief counsel to articulate
who she represents and her withholding of information shows a
fundamental misunderstanding and antagonism towards the OSC's
function.
Interestingly, the TSA later sent the committee a letter
stating, quote, TSA recognizes its legal obligation to provide
documents to the OSC and does so regularly, end quote. In fact,
I'd ask unanimous consent to enter that letter into the record.
It was sent to us on March first.
Without objection, so ordered.
The Chairman. It was sent to us March 1, 2017.
It's not about doing it regularly. It's about doing it
always, and that is something that drives us here today.
The OSC gets to see all of it, 100 percent of it, not a
portion of it, not some of it, not just the parts you want them
to see. The OSC gets to see all of it. That means 100 percent.
Furthermore, it should not take a congressional hearing for
the TSA to acknowledge an existing legal obligation. Similar to
the agency's noncooperation with the OSC, the committee has
long criticized the agency's use of sensitive security
information, an SSI designation to withhold information.
In a 2014--in 2014, the committee issued a bipartisan
report, bipartisan, finding that the agency inconsistently and
improperly designated certain information as SSI simply to
prevent embarrassing information from being made public, but
these problems persist. According to the Department of Homeland
Security's inspector general, quote, TSA is abusing its
stewardship of the SSI program. None of these redactions will
make us safer, and simply highlight the inconsistent and
arbitrary nature of decisions that TSA cannot be trusted to
administer the program in a reasonable manner, end quote.
That's about as damning as it gets. That is as direct as it can
possibly be.
In a recent transcribed interview with the committee,
former TSA Deputy Administrator Mark Hatfield told the
committee, and I quote, you could mark a Chinese carryout menu
SSI'' end quote. Talk about an abuse of the system, a Chinese
menu. That was his example.
The issues with the transparency at TSA tend to have one
thing in common, and that's Francine Kerner, in the office of
chief counsel. She seems to be the conduit and the person that
we continually bump into. Kerner has a checkered history and
the duty--and has a duty to share information. As a lawyer for
the Treasury Department in the early 1990s, she was the subject
of an investigation for improperly disclosing confidential
information to the White House. Now she's advocating for the
TSA to withhold information on alleged whistleblower
retaliation from the agency charged to investigate it. There's
something fundamentally totally wrong and backwards about that.
The committee will not tolerate these impediments,
especially when it comes to protecting whistleblowers and
ensuring transparency. The acting administrator is here today.
We're requesting today you right this wrong and immediately
turn over all information withheld from the OSC and put an end
to the practice. We're going to give you a very short timeline
to do so, and we will follow up.
So I'll recognize the ranking member Mr. Cummings of
Maryland.
Mr. Cummings. Thank you very much, Mr. Chairman.
And last week, our committee conducted an extraordinary
interview at my request with Mark Hatfield who served as the
deputy administrator of the TSA and worked at the agency for
some 13 years. He explained to the committee that TSA employees
lack some of the most basic safeguards to protect them against
retaliation when they highlight security concerns.
The deputy described an agency where, in the absence of
normal Federal employee safeguards, a culture of retribution
and arbitrary personnel actions evolved that made employees
reluctant to raise security concerns. I will highlight some of
the statements made by the deputy during his interview and ask
unanimous consent to include longer excerpts in the hearing
record.
Mr. Cummings. With respect to the subject of today's
hearing, the deputy explained, quote, there was very little
transparency. There was a lot of distrust. There was a sense
of, you know, in favor and out of favor employees, end of
quote.
He explained, quote, so many things were governed by self-
direction at TSA. It bred misbehavior, end of quote. He said:
The lack of protections for employees, quote, gave people the
opportunity to do things that were typically not against the
rules because the rules were so flexible but very questionable
when you looked at it from a moral or ethical point of view,
end of quote.
During the deputy's interview, our staff asked him if the
absence of normal Federal employee safeguards contributed to an
environment in which employees did not want to come forward
with information about security. In response, he said, and
again I quote, Oh, yeah. I mean, it didn't take long for you to
know enough of your compatriots had, you know, taken an arrow
in the back, and, you know, were either wounded or dead, and
you had a decision to make depending on how loud you wanted to
be or how far you wanted to go, end of quote.
The deputy also warned, and I quote, people learned that if
you spoke too loudly or if you questioned whether the emperor
was actually wearing clothes or not, that you could do it at,
you know, personal consequence, end of quote.
When Congress created the TSA in 2001, it did not provide
the agency's employees with all of the due process protections
given to other Federal employees under Title 5. The deputy said
that although some flexibility might have been appropriate,
that TSA was first rated--the agency, and I quote, should have
started converting some of these practices to make them more
standardized in Federal Government practices, end of quote.
He explained, quote, The structure that gave it the
flexibility and the facility and the power to make
extraordinary moves it did when it was created should have
evolved, and unfortunately, some of them have just led to
toxicity rather than a healthy agency, end of quote.
One tactic reportedly used against TSA employees was,
quote, directed reassignments, end of quote, or forcing
employees to move entirely to new entirely--to entirely new
locations as punishment for raising concerns.
I've got to tell you, this is something that really
bothered me because--and I'm sure it did the chairman--because
we have people who were being divided from their families
going--one person going maybe to Connecticut and the other one
going to Florida. Give me a break. And it was punishment,
punishment.
For example, the deputy explained that the former assistant
administrator in charge of agency security operations ran a,
quote, very dictatorial department, end of quote. Rather than
focusing on improving security, he was, quote, using the
directed reassignment process to manipulate positions in the
field and to both help people that were in favor and to punish
people that were out of favor, end of quote.
The deputy confirmed, during his interview, that one TSA
whistleblower, Jay Brainard, who testified before this
committee on April 27, 2016, received a directed reassignment
after being, quote, very outspoken, end of quote, about
security concerns.
According to Deputy Brainard, quote, would often raise
issues, end of quote, about security, including, quote, the
extraordinary emphasis on speed over quality of screening, end
of quote.
The deputy said that this whistleblower highlighted, quote,
what many felt was unreasonable reliance on a metric system
that was oftentimes beautiful in full-color presentation on
slide decks, but was very detached from the reality of the
frontline where the actions were taking place, end of quote.
The deputy also confirmed what we have heard many times
before that TSA has abused the SSI designation to cover up
information. He joked that in the early years of the agency,
quote, you could mark--and I think the chairman referred to
this--you could mark a Chinese carryout menu SSI, end of quote.
He had a, quote, a brochure or something that was clearly
public, a consumable material information you could get on the
internet or in the library and they would, you know, stamp it
SSI, end of quote.
Now, from everything we have seen, TSA operations have
improved over the last 2 years under the most recent
administrator, Vice Admiral Peter Neffenger. But the deputy's
interview last week makes crystal clear that TSA employees need
the same protections as other Federal employees so they can
speak up about the security of the American people without
being retaliated against and Congress can consider these
reforms.
And let me say to the chairman: I thank you again. And I
thank all of our members for standing up for whistleblowers.
Ladies and gentlemen, if we don't stand up for
whistleblowers, we don't need to be here. We need to go and get
another job because, as far as I'm concerned, it would be
legislative and congressional malpractice not to do so.
Some of the best information that we have gotten was from
whistleblowers, and we must do everything in our power at all
times to protect them. And on the other hand, for anyone who
thinks Congress should receive Title 5 protection for employees
at other Federal agencies, TSA is a case study demonstrating
why this would be a terrible idea.
And with that, Mr. Chairman, I yield back. I also noticed
that Congressman Sarbanes just came in, and he's one of our
newest members. Thank you.
Chairman Chaffetz. Welcome. Thank you. Glad you're here.
Members are advised that we do anticipate votes on the
floor. We're going to get through the--hopefully, get through
all the opening statements, but at the appropriate time we will
break. The intention is to allow the votes on the floor, and
then we'll come back and finish up the hearing.
We'll hold the record open for 5 legislative days for any
members who would like to submit a written statement, but let's
now recognize our panel.
We're pleased to welcome Ms. Gowadia. She's the acting
administrator for the Transportation Security Administration;
the Honorable John Roth, Inspector General for the United
States Department of Homeland Security; and the Honorable
Carolyn Lerner, special counsel for the Office of Special
Counsel--special counsel for the United States Office of
Special Counsel.
We welcome you all. Pursuant to committee rules, you are to
be sworn before you testify, so if you will please rise and
raise your right hand.
Do you solemnly swear or affirm that the testimony you're
about to give will be the truth, the whole truth, and nothing
but the truth, so help you God?
Thank you. Please be seated. And let the record reflect
that all the witnesses answered in the affirmative.
We would appreciate it if you would limit your oral
testimony to 5 minutes. We'll give you a little bit of
latitude, but of course your entire written statement will be
made part of the record. We'll now recognize the acting
administrator for 5 minutes.
But by the way, you have to straighten it up and get that
microphone right up in there. It's a little uncomfortable, but
bring it up close. Thank you.
WITNESS STATEMENTS
STATEMENT OF HUBAN A. GOWADIA, PH.D.
Ms. Gowadia. Good morning, Chairman Chaffetz, Ranking
Member Cummings, and distinguished members of the committee.
Thank you for affording me the opportunity and privilege to
speak to you today about information transparency of the
Transportation Security Administration. I am indeed fortunate
to represent a tremendous workforce that is responsible for
executing a critical security mission, to protect the Nation's
transportation systems.
Vital to that mission success is how we share information
with our many transportation security partners. The dynamic and
increasingly complex threat environment in which we operate
demands that TSA and our partners share information in a timely
and secure manner. To that end, we work closely across the
spectrum of transportation modes to exchange information,
solicit feedback, and develop policy and guidelines.
Indeed, our recent cooperative initiatives with industry
stakeholders have yielded significant improvements to our
security operations. For instance, we collaborated with
airports and air carriers to address the surge in passenger
volumes last spring and summer, and in the process, we
established our airport operation center as a permanent and
direct communication channel. Leveraging the center, TSA
continues to hold daily calls with airlines and airports to
track screening operations.
We also communicate regularly with the traveling public
through a variety of outreach efforts, press releases, and
social media. TSA Cares and Ask TSA are two of our most popular
and successful models of passenger engagement, but the
transportation security system does not stop at our borders. It
is undeniably global in nature. That is why TSA works alongside
partners and plays a leading role in a number of regional and
international organizations with a common vision for
transportation security
Across all our interactions, TSA strives to be transparent
and forthright. In point of fact, doing so, it serves our
interest, as a free and frequent exchange of information to and
from partners helps us make better informed decisions and build
lasting trust.
However, we also must remain absolutely vigilant in
safeguarding against the release of sensitive information which
could cause harm if disclosed to our adversaries. We must
balance the transparent flow of information with our serious
responsibility to prevent that information from falling into
the wrong hands.
For that reason, we ensure that the information requiring
protection is properly marked, handled, and distributed.
Sensitive security information, or SSI, is one category of
protected information that is defined by statute. Governing
departmental and TSA management directives mandate that such
information be released to the maximum extent possible without
compromising transportation security.
And because we count on our greatest resource, our people,
to enforce these protections, we have updated SSI training and
made it an annual requirement for all TSA employees and
contractors. In addition, we have developed a comprehensive SSI
policies and procedures handbook, as well as improved reference
guides.
Keeping with the spirit of transparency and preserving the
public's access to appropriate information, TSA also follows
established procedures for adjudicating challenges to SSI
designations. Taken together, these measures enhance the SSI
program and contribute to TSA's overall growth as a true
learning organization
We must also continue to learn from each other. I encourage
my TSA colleagues to feel empowered in voicing their thoughts,
suggestions, and concerns that can lead to improvements in our
workplace environment and how we do business. That means
creating and sustaining an organizational culture which values
responsible challenges to conventional thinking and invites
opportunities to get better. And those opportunities can come
from a number of sources, be it an audit conducted by the
inspector general or an employee calling attention to an agency
impropriety.
I want to take this opportunity to thank Mr. Roth and Ms.
Lerner for the efforts of their offices. With their help, I do
believe we will continue to improve.
Let me stress that no matter where the challenge comes
from, TSA has zero tolerance for prohibited personnel
practices, such as retaliation against whistleblowers. TSA is
fortunate to have employees and stakeholders with a shared
passion for mission success and integrity. We will continue to
work hard to exceed their expectations.
In conclusion, I would like to emphasize that each side of
the coin, sharing information transparently and protecting
information when it is required is indispensable to our
national security mission. I have every confidence that the
proud men and women of TSA today are more than up to both
tasks. Thank you.
[Prepared statement of Ms. Gowadia follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. Thank you. I appreciate that.
Before we recognize the inspector general, members are
advised we have a vote on the floor, so I'm going to put us
into recess, and we will reconvene no sooner than 11:00 a.m.
So you're free to go to the cafeteria, do whatever you want
to do, we'll be no sooner than 11:00, but if you'd please be
back here just before 11:00. And as soon as the votes are done
on the floor, we'll reconvene.
The committee stands in recess.
[Recess.]
Chairman Chaffetz. The Committee on Oversight and
Government Reform will come back to order.
We appreciate it. We were delayed for a moment, more than a
moment, because of votes on the floor, but I believe now we
were going to hear testimony from Inspector General Roth. You
are now recognized for 5 minutes.
STATEMENT OF JOHN ROTH
Mr. Roth. Thank you. Chairman Chaffetz, Ranking Member
Cummings, and members of the committee, thank you for inviting
me here today to testify regarding issues relating to TSA.
Inspector general oversight of TSA's programs and
operations fosters positive change and makes government better.
However, the effectiveness of our oversight depends on our
ability to make--to issue detailed, balanced, and public
reports that accurately describe our findings and include
recommendations to resolve them.
The Inspector General Act requires that we inform the DHS
Secretary, Congress, and the public about any problems and
deficiencies we identify through our work. Public scrutiny of
what we find is key to accomplishing our mission.
We have found that TSA has a history of taking an
aggressive approach to restricting information from being made
public, especially with respect to a category of information
known as sensitive security information, commonly known by its
acronym as SSI. This problem is well documented.
I first encountered the issue in 2015 when TSA insisted on
applying the SSI designation to information in an audit report
concerning the IT operations at JFK airport in New York.
Similar information had been previously published in two prior
OIG reports. I appealed the issue directly to the TSA
administrator, but it was not resolved to my satisfaction. And
sure enough, it was repeated in our latest report on TSA IT
systems that was published in December of last year. In that
report, TSA again demanded redaction of information that had
previously been freely published without objection and in which
my IT security experts have told me poses no threat to aviation
security.
Entities outside the OIG have made similar findings, and I
believe that the problem is deeply rooted and systemic. For
instance, as far back as 2005, GAO issued a report finding that
TSA did not have adequate policies and procedures to determine
what constitutes SSI or who is authorized to make the
designation. GAO found that the TSA's lack of internal controls
left TSA unable to be ensured that they were applying the
designation properly.
Nearly 10 years later, this committee reached a similar
conclusion in a bipartisan staff report it issued in 2014. Two
years after that, in 2016, the chairman of the House Committee
on Homeland Security, Subcommittee on Transportation Security
objected to TSA's management and use of the SSI designation,
noting that the improper invocation of SSI, and I quote,
``raised the specter we've heard again and again about TSA
conveniently using the security classifications to avoid having
public discussions about certain things that may be unpleasant
for them to discuss in public,'' end quote.
In addition to these inconsistent SSI designations, we have
encountered instances in which TSA redacted information so
widely known that redaction bordered on absurd. For example,
TSA redacted, claiming SSI, a statement in one of our draft
reports related to expedited screening process. Here's the
quote: ``Passengers are not required to remove shoes, belts,
laptops, liquids, or gels,'' end quote.
We showed TSA that this information is on their publicly
available website, and pretty much every traveler who goes
through the precheck lane understands this to be the case. And
ultimately, TSA agreed that the information was not in fact SSI
and should not have been redacted. While this was appropriately
resolved, it takes time away from the audit process and causes
unnecessary delay.
Likewise, we have other instances in which TSA has
attempted to restrict information that we found on their own
website. These examples highlight what I believe is the
incoherent and inconsistent nature of the program and raise
serious concerns, in my mind, as to whether TSA can be trusted
to make reasonable, appropriate, and consistent SSI
designations.
Under DHS policy, any authorized holder of SSI who believes
that a designation is improper may challenge the marking.
Unfortunately, as I discovered, this appeals process is
structured to ratify TSA's SSI designations and prevent the
review of such designations by independent external entities.
The appeals process is foreordained and fails to properly
balance the public's right to information against
nonspeculative threats to aviation security and is vulnerable
to abuse.
We are currently in the fieldwork stage of a comprehensive
review of TSA's management of its SSI program and its use of
the SSI designation. We expect to have a final report by July
2017, and will provide a copy of this report prior to its
publication to this committee. Additionally, we will continue
to review and publish public reports on TSA's programs and
operations. To the extent that we continue to observe the abuse
of SSI designation, we will continue to highlight it.
Mr. Chairman, this concludes my testimony. I'm happy to
answer any questions you or other members of the committee may
have.
[Prepared statement of Mr. Roth follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. Thank you.
I'll now go to Ms. Lerner. You're now recognized for 5
minutes. Bring that microphone up nice and close. There you go.
Thank you.
Ms. Lerner. Got it.
Chairman Chaffetz. Thank you.
STATEMENT OF CAROLYN LERNER
Ms. Lerner. Chairman Chaffetz, Ranking Member Cummings, and
members of the committee, thank you for the opportunity to
testify today about the U.S. Office of Special Counsel and our
investigations of whistleblower retaliation at the
Transportation Security Administration. I appreciate the
committee's commitment to oversight, including strengthening
OSC's ability to carry out our good government mission.
I want to take the opportunity to thank this committee for
your leadership in passing the Thoroughly Investigating
Retaliation Against Whistleblowers Act, H.R. 69, during the
opening week of this Congress. That legislation will help OSC
conduct our investigations at TSA and other agencies.
During our investigations, it is standard to issue document
requests and interview witnesses. A full and complete
investigation requires access to all relevant information.
Although agencies generally cooperate with OSC's requests, some
do not. Some withhold documents and other information by
asserting common law privileges, and in particular, the
attorney-client privilege. As the committee knows, the
attorney-client privilege protects certain communications
between a lawyer and client. The privilege allows the client to
disclose confidential communications in order to promote frank
and candid discussions.
As someone who spent two decades practicing law in the
private sector, I understand the importance of the privilege,
and of course, it helped me to represent my clients. In
government, the privilege is certainly important in certain
contexts, such as in litigation with third parties. Having said
that, there is simply no basis for Federal agencies to assert
the attorney-client privilege during an OSC investigation. This
is not litigation. This is an internal administrative
investigation that OSC is conducting for the government.
Indeed, no court has ever held that the attorney-client
privilege can be used during an administrative investigation
between two government agencies. This makes sense. We all work
for the same government. Congress and this committee, in
particular, have made clear that there is a strong public
interest in exposing government wrongdoing and upholding merit
system principles.
Federal agencies may not use privileges to conceal evidence
from the agency that Congress is charged with investigating
them. Unfortunately, the TSA has been somewhat of an outlier in
its aggressive use of attorney-client privilege in several
cases.
In 2012, Congress extended whistleblower protections to TSA
employees through the Whistleblower Protection Enhancement Act.
Since then, OSC has received more than 350 retaliation cases
from the TSA employees. Two pairs of companion cases illustrate
the challenges OSC faces in getting needed information from the
TSA. The complainants are TSA officials who experienced
involuntary geographical reassignments, a demotion, and a
removal, all allegedly in retaliation for their protected
whistleblower disclosures.
In these cases, TSA withheld information from its document
productions, asserting claims of attorney-client privilege. OSC
has asked TSA to withdraw the claims of privilege, but both TSA
and DHS rejected these requests. There are several problems
with TSA's assertions of privilege.
First, as discussed above, shielding information from OSC
conflicts with our statutory mandate to investigate the
legality of personnel practices. When TSA doesn't disclose the
reasons why they took an action against the whistleblower, we
can't investigate whether it's retaliation.
In addition, TSA's attorney-client privilege review causes
significant delays in investigations. In these four cases, OSC
has spent months waiting for documents while TSA was reviewing
responses for privilege.
OSC is a tiny agency. We only have about 40 attorneys to
investigate hundreds of retaliation cases. Our lawyers are
spending too much time negotiating for documents, time that
could be much better spent advancing the investigation.
These delays also directly impact complainants who are
waiting for relief, often when they are facing devastating
situations at work. Despite the challenges created by TSA's
privilege claims, OSC is committed to completing thorough
investigations and protecting TSA employees.
Thank you for the opportunity to testify today. We
appreciate the committee's interest in these challenges we're
facing. I look forward to answering your questions.
[Prepared statement of Ms. Lerner follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. Thank you. I appreciate it.
We'll now recognize the gentleman from Alabama, Mr. Palmer,
for 5 minutes.
Mr. Palmer. Thank you, Mr. Chairman.
I believe we have a slide. Ms. Lerner, can you give an
example of the kinds of redactions that TSA has provided your
office with?
Ms. Lerner. Yes.
Mr. Palmer. Put the slide back up.
Ms. Lerner. So this is an example. This is one of the
attachments to our written submitted testimony. This is an
example of the type of document production that we're getting
from TSA, and it's a real problem because this document, we
believe, would go directly to the issues that we're trying to
investigate in the case.
Was there a disclosure by the employee? Were they
whistleblowing? And what were the reasons that the agency had
for taking the action against the whistleblower after they blew
the whistle? And when we get a document that's 100 percent
redacted, there's no way we can get to the bottom of the
information that we really need.
Mr. Palmer. Does it appear to you, at least, that the use
of the redaction is selective and inconsistent to the point
that it might raise suspicion that it's being used to cover up
problems at TSA? Would that be fair?
Ms. Lerner. I can't get to what's motivating them and their
reasons for----
Mr. Palmer. I'm just asking appearances.
Ms. Lerner. --redacting, but it does raise concerns.
Mr. Palmer. Thank you.
Dr. Gowadia, is that how you pronounce that?
Ms. Gowadia. Yes, sir.
Mr. Palmer. Thank you. Ms. Lerner provided examples of
overly broad redactions by TSA. Were you aware that TSA
withheld information from the Office of Special Counsel in this
manner?
Ms. Gowadia. Yes, sir. I am aware that we do assert
attorney-client privilege in some instances.
Mr. Palmer. Can you explain why the documents Ms. Lerner
has provided today were redacted?
Ms. Gowadia. Sir, I do not know the exact specifics of the
case that you put up.
Mr. Palmer. You couldn't from reading that slide.
Ms. Gowadia. Certainly. And we would have to go back into
the log and determine the exact nature.
Mr. Palmer. Ms. Lerner stated in her testimony that even
the date, author, the recipient of the document were redacted.
Can you explain how that information would be privileged?
Ms. Gowadia. Sir, I--again, I don't know the context in
which this particular document----
Mr. Palmer. I'm not talking about that particular document.
There are other documents. Why would you--why would you be
redacting the date and the author and the recipient? Can you
give an explanation to that?
Ms. Gowadia. Sir, I believe it might be on a case-by-case
basis, those particular issues.
Mr. Palmer. Selective?
Ms. Gowadia. It would not be selective.
Mr. Palmer. Inconsistent?
Ms. Gowadia. I would say case by case.
Mr. Palmer. Well, it appears to be selective and
inconsistent. I mean, why--again, why would you redact the
date?
Ms. Gowadia. Again, sir, I have no ability to opine on the
document put up or in the generalities. It would have to be
answered on a case-by-case basis.
Mr. Palmer. You know, you talked about attorney-client
privilege. If there were no attorneys present at the meeting,
how could TSA possibly invoke attorney-client privilege with
respect to the document?
Ms. Gowadia. Sir, again, I have--I do not have insight into
the particular document you're talking about.
Mr. Palmer. I'm not talking about that--just that document,
but this has gone on with other instances where in one case the
attorney couldn't even identify the client, yet claimed
attorney-client privilege.
Ms. Gowadia. Sir, let me go back to the question you asked
previously about if the attorney is not in the meeting. It
might be that an employee is asking for attorney's advice on
something. But again, it's speculative, because I don't know.
Mr. Palmer. What if the attorney can't identify the client?
Ms. Gowadia. I'm not sure where that reference is coming
from, sir.
Mr. Palmer. I think we'll get into that later.
Ms. Lerner, would you like to comment on that?
Ms. Lerner. Sir, I think really what this boils down to is
we don't believe that the attorney-client privilege applies in
any document for any document request. We are acting in the
agency's shoes. This is an interagency intergovernment
investigation that Congress has asked us to conduct.
It's not appropriate for any agency to claim attorney-
client privilege when they're producing documents to OSC. It
would be the same thing with an IG or GAO, an agency would
never claim attorney-client privilege during an IG
investigation. It's not appropriate to claim it during an OSC
investigation either.
Mr. Palmer. That's part of my problem with this is, as I
said, selective use of redaction, the inconsistent use of it,
claiming attorney-client privilege, it--you know, with all due
respect, it appears that TSA is trying to cover up problems.
Mr. Roth, do you have any comment on that?
Mr. Roth. We've been very fortunate that DHS has taken the
policy, since I've been there, that the attorney-client
privilege does not apply to anything that we receive. Of
course, they're a little more restrictive on publication
because they don't want to breach the attorney-client privilege
for a number of reasons, and that's obviously their decision
whether or not to do so. But they have taken the position that
attorney-client does not bar us from access to information.
Mr. Palmer. Well, I appreciate your answer.
Mr. Chairman, I yield back.
Chairman Chaffetz. I thank the gentleman.
We'll now go to Mrs. Demings of Florida for 5 minutes.
Mrs. Demings. Thank you so much, Mr. Chairman. And thank
you to all of our witnesses who are here before us today. We do
understand and know how important transparency is but also how
important whistleblower protections are to the overall process.
I'm pleased today to hear from both sides of the aisle to
speak out in support of whistleblowers and the important work
done by the Office of Special Counsel. But despite the talk
that we've heard, congressional Republicans have failed to
provide OSC with the funding that you so desperately need to
carry out the work.
President Obama's congressional budget justification of the
Office of Special Counsel for fiscal year 2017 requested
additional funding for the agency, noting a record number of
whistleblower disclosures up 74 percent over the prior 2 years.
Ms. Lerner, is that correct, and has OSC seen an increase
in its caseload over the past several years, and do you
currently have a backlog in handling whistleblower complaints?
Ms. Lerner. Thank you so much for the question. Yes, our
caseload has about doubled during the time that I've been
special counsel. We got about over 6,000 complaints last year
over all four of our program areas, which is a really big
increase. Our lawyers are beyond, you know, the ability to work
cases the way they need to be working them.
We do appreciate that the House and the House's bill, they
fully funded us at the President's number. The Senate bill kept
us level as at last year's levels. We really do need an
increase in funds pretty desperately in order for us to fulfill
our good government mission and to do the kinds of things that
Congress has asked us to do to be effective. We need
appropriate staff, and we don't have it right now.
Mrs. Demings. I understand that according to the fiscal
year 2017 budget justification, that you requested 15 new full-
time employees to meet its caseload. Is that correct?
Ms. Lerner. That's correct.
Mrs. Demings. And even though this increase received
bipartisan support in the House, the Republican-led Congress
failed to pass the appropriations bill last year, so OSC did
not receive the increase in staffing as requested. Is that
correct?
Ms. Lerner. That is correct. And also, in the Senate bill,
they kept us at the same level as last year. They did not
follow the House's lead in terms of giving us the number that
the President requested.
Mrs. Demings. Okay. And President Trump was instrumental in
pressuring Congress to delay action on these spending bills,
meaning that current spending levels will remain in place until
at least April.
Ms. Lerner, have budget constraints affected your ability
to enforce whistleblower protections, and if so, in what way?
Ms. Lerner. I think our lawyers are doing an amazing job
with the resources that they have. As you noted, we did request
additional funds so that we could hire at least 15 more
lawyers. As I mentioned in my opening statement, we have about
40 attorneys right now assigned to do the investigation and
prosecution of the hundreds of retaliation cases that are
coming into our agency.
It creates frustration for complainants. It creates delays
in terms of getting people the relief that they need, and
frankly, our staff is frustrated because they would like to be
able to spend appropriate time on the cases. So it would be
very, very helpful if our agency were fully funded.
Mrs. Demings. I think you stated in 2012 that you received
more than 350 whistleblower retaliation cases from TSA
employees. Would you say that that's correct?
Ms. Lerner. Yes, that's right.
Mrs. Demings. And how many did you receive last year,
roughly?
Ms. Lerner. I don't know the exact number, but it's about--
it's about the same level.
Mrs. Demings. And do OCS's resource constraints affect how
quickly you can resolve the open cases, the extreme high number
of open cases that you currently have?
Ms. Lerner. Yeah. Let me give you an example. When I first
started as special counsel in 2011, our complaints examining
unit had about 25, maybe 30 cases per complaint examiner. Now
they are up to 60, sometimes 70 cases per examiner. That's
double tripling of the caseloads. That means it takes us much
longer to determine whether a case should be fully
investigated. It takes us longer to get relief for complainants
at a time in their life when they're really under terrible, you
know, workplace situations, someone who, you know, may need
immediate relief. We may not always be able to get to their
case as quickly as we ought to. It's taking around 90 days, on
average, for cases to get through our complaints examining
unit. When I first started, it was an average of closer to 30
days.
Mrs. Demings. Thank you so much.
Mr. Chair, I yield back.
Chairman Chaffetz. The gentlewoman yields back.
I now recognize myself.
Ms. Gowadia, you said that TSA has zero tolerance on those
that are applying retaliation to whistleblowers, correct?
Ms. Gowadia. Yes, sir.
Chairman Chaffetz. Do you believe that the TSA--so if an
employee believes that they have been retaliated against, who
is the--or what organization is the one that comes in to figure
out whether or not there has been retaliation?
Ms. Gowadia. So, sir, employees at TSA are afforded all
protections from the Whistleblower Act, all TSA employees are,
so they can go up any number of channels. They can go up to the
EEOC line, the MSPB line, or the OSC line. They can even----
Chairman Chaffetz. Okay. So let's take the OSC, for
example.
Ms. Gowadia. Certainly.
Chairman Chaffetz. The whistleblower says I've been
retaliated against. The TSA says, no, they haven't. There's a
dispute. OSC is one of the organizations, I think the primary
organization, to resolve that dispute, correct?
Ms. Gowadia. Certainly.
Chairman Chaffetz. You agree with that?
Ms. Gowadia. Yes, sir.
Chairman Chaffetz. So what percentage of the information
should the OSC be able to review in order to figure out the
right conclusion?
Ms. Gowadia. Sir, the OSC should have all the information
they need to figure it out.
Chairman Chaffetz. Define all of the information.
Ms. Gowadia. Sir, I appreciate where you're headed with
your question on the information we redact for attorney-client
privilege issues. In that regard, I have to say we follow
departmental guidance.
Chairman Chaffetz. Wait, wait, wait, wait. There's the law
and then there's departmental guidance. You said you believed
that the OSC should get all of the information. What percentage
is all?
Ms. Gowadia. Sir, I said----
Chairman Chaffetz. No, no, no. It's a simple question.
Ms. Gowadia. I hear you. I just want----
Chairman Chaffetz. No, no. I want to be clear in what I'm
asking. If she is to get all of the information, which you
said----
Ms. Gowadia. Well, actually----
Chairman Chaffetz. --what percentage--what percentage is
all?
Ms. Gowadia. All would be, mathematically, 100 percent, but
my sentence was all the appropriate information.
Chairman Chaffetz. Appropriate. What--so what do you
believe the OSC should not see?
Ms. Gowadia. Sir, the attorney-client privileged
information is presently redacted. I know you don't want to
hear numbers, so I'm not going to give you numbers, but it is a
very small fraction.
Chairman Chaffetz. The only number I want to hear from you
is that we give the OSC 100 percent of the information. That's
what I want to hear you say. You said you give them all, that
they should have all.
How are they supposed to come to a proper conclusion when
you only give them something short of 100 percent?
Ms. Gowadia. Sir, in this regard, again, I have to stress
that TSA is not an agency independent. We belong to a
department. We follow guidance that the Department gives us.
Now, as a part of this hearing, we have--your concern has
been raised. I can assure you that we will follow up with this
at the department level, make guidance in writing if we have
to, make it so that we are----
Chairman Chaffetz. Okay. So you said it's department
guidance. When will you provide this committee that department
guidance that says that the attorney-client privilege prohibits
you from giving the information to the OSC? When will I have
that on my desk?
Ms. Gowadia. Sir, I have already raised the matter with the
department's general counsel, and I will work with them to get
you----
Chairman Chaffetz. No, I want a date certain.
Ms. Gowadia. Unfortunately, sir, this is not up to me. I am
not the----
Chairman Chaffetz. You're the acting administrator of the
TSA. You've got 50-plus thousand employees. You don't have
the--you're relying on guidance from the Department, and you're
going to withhold that information from Congress?
Ms. Gowadia. Sir, to my--to my best of my knowledge, the
guidance is not in writing. We are working to get----
Chairman Chaffetz. Well, wait a second.
Ms. Gowadia. --the practice----
Chairman Chaffetz. You don't have--you just made this up?
It's not in writing?
Ms. Gowadia. Sir, it is a standard practice----
Chairman Chaffetz. No, it's not.
Mr. Roth--or Ms. Lerner, is this a standard practice?
Ms. Lerner. No, it's not. There is no attorney-client
privilege when one government agency is investigating another
government agency. It's very much akin to what the IG's doing
with----
Chairman Chaffetz. Do you see this with any--do you see
this with any other department or agency or whatever you want
to call it?
Ms. Lerner. From time to time, but not to the extent that
we're seeing it with TSA.
Chairman Chaffetz. Mr. Roth, what's your experience with
this?
Mr. Roth. We are part of the Department of Homeland
Security, so we get everything, whether it's attorney-client or
not.
Chairman Chaffetz. Ms. Gowadia, I want you to provide the
guidance to this office next Friday. Is that fair? A week from
tomorrow.
Ms. Gowadia. Sir, I will work with the Department to get
you something by next Friday.
Chairman Chaffetz. What--let me ask you this: What do you
think Congress has the right to see? If I ask for all the
information, what percentage of the documentation will you give
us?
Ms. Gowadia. So, again, when it comes to attorney-client
privilege, I am not in a position to opine.
Chairman Chaffetz. Yes, you are. You're the acting
administrator. I'm asking you right now to provide the
information that the OSC has asked for. I want you to provide
it to this committee.
Ms. Gowadia. Sir, may I offer something? Yesterday, we came
to visit with Mr. Meadows, and as a part of getting ready for
this hearing, this concern has come to my attention in a very
strong way. I went back and I asked my staff to do a quick look
and see, have we ever had any concern expressed by the OSC to
us in the information we have redacted? Has that kept them from
proceeding on a case?
We found two instances. I believe Ms. Lerner has four in
her statement. I have--as of yesterday, if we ever redact a
piece of information from the OSC, we will always accompany it
with a privileged log, and that will allow OSC to have more
information on the information that has been redacted as a
starting point.
Chairman Chaffetz. Okay. So when will you provide the OSC
the privileged log? When will you do that?
Ms. Lerner. If I may, that would not be sufficient.
Chairman Chaffetz. Oh, I'm not saying that's an endpoint.
Ms. Lerner. Sir, no. A privileged log suggests that there
actually is a privilege. It's our position that there is no
attorney-client privilege. It would not be appropriate.
Chairman Chaffetz. But I would like--your point is well
taken, and I concur with it. But I would be interested to see
all the different times that the TSA is taking this so-called
privilege, which we don't buy into.
When will you provide that to the OSC and to the Committee
on Oversight and Government Reform? When will I have that on my
desk?
Ms. Gowadia. The privileged logs?
Chairman Chaffetz. Yes.
Ms. Gowadia. With every document that we issue henceforth,
we will issue----
Chairman Chaffetz. No, no, no. Not in the future. I want to
know all the ones in the past.
Ms. Gowadia. Sir, I am not familiar with how many--how many
records----
Chairman Chaffetz. It doesn't matter how many. I want to
know when I'm going to have all of them.
Ms. Gowadia. Well, sir----
Chairman Chaffetz. A week from--you have a week from
Friday. Okay? A week from Friday, or I'll issue a subpoena. And
guess what? I don't need a committee vote. I don't need to go
ask a judge. I can do it myself. And I'm telling you here on
national television, you will get a subpoena for that
information. You should provide it voluntarily. We do not buy
into this whole notion that there is any such privilege.
Secondly, the information that the OSC is asking for where
they don't have 100 percent of the documents, when will we as a
committee have that?
Ms. Gowadia. So, again, I will have to take that question
for the record, because this is a departmental position that I
am not unilaterally allowed to circumvent.
Chairman Chaffetz. Who--tell me who at the Department of
Homeland Security is holding you back.
Ms. Gowadia. Sir, I have to work with the Office of General
Counsel.
Chairman Chaffetz. Give me some names. I want to know who
to call up here.
Ms. Gowadia. The Office of General Counsel.
Chairman Chaffetz. No, no.
Ms. Gowadia. The general counsel to the secretary.
Chairman Chaffetz. Give me a specific name. That's a big
office. There's lots of attorneys. Tell me the attorneys that
are telling you not to provide this information to Congress,
and tell me the names of the attorneys that are telling you not
to provide this to the OSC. I want names.
Ms. Gowadia. Sir, it--I will follow up with your--with you
and your staff right after----
Chairman Chaffetz. No, I want you right now. You've had
notice of this hearing. I need specific names. You have staff
sitting there.
How many staffs are with the TSA?
Ms. Gowadia. Sir----
Chairman Chaffetz. How--how many staff are with the TSA are
in this audience right now?
Please, raise your hands. Who's paid by the TSA? How many
people?
Wait a second. One, two, three--hold them up. One, two,
three, four, five, six, seven. One of these seven people has
got to get on the phone, get your butt up out of this
committee, and go get that information before this hearing is
done. I want to have names, and we're going to call them up
there.
There is no way--we're going to go to the ends of the earth
to protect whistleblowers. And we have an independent--we have
this OSC--Ms. Lerner has testified time and time again, we
believe in her and her organization. She needs 100 percent of
the information, not some of it, not some that you don't want
us to have, not the embarrassing. She needs all of it. And I
want names of who at the Homeland Security is prohibiting
people from giving that information to the OSC.
Ms. Gowadia. Mr. Chaffetz, I have asked my staff to step
out and obtain permission from the Department to give you a
name before the hearing is done.
Chairman Chaffetz. Thank you. And I need to know what
information--let me ask you this, one conceptual question, and
I'll turn the time to Mr.--to the gentleman.
What information do you believe should be withheld from
Congress?
Ms. Gowadia. Sir, I don't believe information should be
withheld from Congress unless there are certain provisions,
such as the attorney-client privilege, which, again, my hands
are tied by departmental policy. I cannot take unilateral
action, because there are ripple effects across the Department.
That having been said, I will tell you that when it comes
to SSI information, all of this is--we are completely
transparent, not with--just with you but with the IG, with your
staff. They have full privilege to all the information when it
comes to SSI and things like that. But when it comes to the
attorney-client privilege element, sir, I--it's something----
Chairman Chaffetz. I think we've established here that that
is so bogus. You're making it up. That may be what the
attorneys are telling you. You're a very talented, smart
person. I appreciate the work that you do on behalf of the
United States of America. But we've got whistleblowers who
think they're getting retaliated against, and I want you to
stop hiding behind some legalese and throwing attorneys into
meetings so you don't have to provide documents.
We don't see this problem of this magnitude anywhere else
except the TSA, and that's why we're going to get to the bottom
of it.
I've gone well past my time. We're going to recognize Mrs.
Lawrence of Michigan for 5 minutes, and some more if she needs
it.
Mrs. Lawrence. Thank you, Mr. Chairman.
Dr. Gowadia, transportation security officers are frontline
employees, who protect our airports and our skies, are not
covered by many of the civil service protections available to
most Federal employees. What kind of rights do TSOs have when
they are subjected to adverse employment actions?
Ms. Gowadia. Ma'am, they have full whistleblower protection
rights, and they have the ability to bring their concerns
before an appellate board to raise some of their concerns.
Mrs. Lawrence. Who's on the appellate board?
Ms. Gowadia. Other TSA employees.
Mrs. Lawrence. What prevents a TSO from being a subject to
an arbitrary personnel action, one taken, perhaps, because an
employee has fallen out of favor with the manager? What
protects them?
Ms. Gowadia. Ma'am, the entire system protects them. This
is all about leadership. We have to make it so that our
leadership is well educated, well trained, and well able to
make decisions that do not adversely affect an employee on a--
--
Mrs. Lawrence. I understand that, but what--what prevents
an employee from getting arbitrary personnel action?
Ms. Gowadia. They have the ability to appeal their
situation before the appellate board.
Mrs. Lawrence. Do you agree that fairness and consistency
in due process are important components of the personnel system
for Federal employees?
Ms. Gowadia. Absolutely.
Mrs. Lawrence. Inspector Roth, do arbitrary personnel
practices deter whistleblowers from speaking out about security
deficiencies?
Mr. Roth. I believe that it's got a chilling effect. Any
time there is the threat of some sort of improper personnel
practice as a result of making a protective disclosure, for
example, of a safety situation or other kind of misconduct on
the part of the agency, that there is always that fear that
there is a chilling effect that something will happen to that
person.
Mrs. Lawrence. So if TSA employees are reluctant to raise
these deficiencies they observe, couldn't this put aviation
security at risk?
Mr. Roth. Well, that's absolutely the case. And we get, at
DHS, something like 20,000 complaints a year from various DHS
employees raising exactly those issues. But we do worry, of
course, as Ms. Lerner does, that those folks can be retaliated
against if, in fact, the word of their cooperation gets out.
Mrs. Lawrence. I'm going to make a statement now. TSA's
arbitrary and inconsistent personnel actions against its
employees not only affect morale, but they also create serious
risk to aviation security. Every Member of Congress is, you
know, intimately aware of the securities and the
responsibilities that are placed on our TSA, and we trust them,
because we, in our jobs, must fly back and forth on a regular
basis.
In TSA, we have a test case of what happens when an
agency's employees are excluded from due process protection of
Title IV. The results are a disaster, and they should never be
repeated at any Federal agency. To correct what we have seen at
TSA, Congress should act now to ensure full civil service
protection under Title IV are available to all TSA employees,
including TSA officers.
And, also, to my Republican colleagues, when we talk about
rolling back Federal civil service protections, understand, as
we have made a commitment here on this committee to ensure that
we protect whistleblowers, when we draw back, as Mr. Roth has
said, these protections, it has a chilling effect. Because if
I'm not going to be protected, I'm not going to come forward.
With that, I yield back my time.
Chairman Chaffetz. Thank you.
I now recognize the ranking member, Mr. Cummings.
Mr. Cummings. Thank you very much. Last week, the committee
conducted an interview of former deputy administrator of TSA,
Mark Hatfield, and he totally committed that TSA was, quote,
governed by self-direction, end of quote, which, quote, bred
misbehavior, quote, and led to toxicity rather than a healthy
agency, end of quote.
Mr. Roth, you testified before the committee in November of
2015 about security failures that you uncovered at the time
that Mr. Hatfield was serving as deputy administrator. You said
that an in-depth round of covert testing at TSA found results
that you characterized as, quote, disappointing and troubling,
end of quote.
Do you think that the toxic environment in which self-
direction bred misbehavior, as the former deputy administrator
described, contributed to the security deficiencies you
identified?
Mr. Roth. Certainly, what we found--and I think TSA
leadership will testify to this as well or has testified to
this as well--there was a push to move people through the line
and ignore sort of the security aspects of what they were
doing. So, culturally, there was enormous pressure on the rank
and file to just keep the lines moving and not worry as much
about security.
So I think the answer to your question is, yes, we found
that through culture there that disregarded aviation security.
Mr. Cummings. And so I take it that you found that to be a
major problem?
Mr. Roth. That's correct, yes.
Mr. Cummings. Considering the mission of TSA?
Mr. Roth. Correct.
Mr. Cummings. So they were probably missing a lot of--
missing things they should have caught?
Mr. Roth. Right. I mean, we have issues with TSA across the
entire spectrum of what they do, not only at the checkpoint,
but how it is that they deal with their own employees, how they
deal with airport workers, how it is that they guard the
perimeter. The challenges that TSA faces are just enormous. I
think it is probably the most difficult job in DHS, which is
really saying something, to try to screen 2 million passengers
a day, 900,000 different airport employees, with a staff of--
and then pay attention to a staff of something like 60,000
people. It is an enormous job, and----
Mr. Cummings. And dealing with the public, trying to get to
where they got to go, and I guess many people feeling like
they're going through too many changes sometimes?
Mr. Roth. Two million passengers a day. So just in a course
of a 10-minute hearing, that's hundreds and hundreds of people.
Mr. Cummings. Yeah. Back in 2015, you testified that the
most critical task facing TSA was, quote, creating a culture of
change within TSA and giving the TSA workforce the ability to
identify and address risks without fear of retribution, end of
quote. What retribution did you observe at TSA, and why did you
believe that the most critical task facing the agency was
giving the workforce the ability to identify risks without fear
of retribution?
Mr. Roth. We had seen--and some of this is simply in the
public sphere, public media, about instances, for example, as
this committee has highlighted with regard to the forced
transfers, for example, and the arbitrary nature of demotions
and those kinds of things. We had seen that.
In talking to TSOs and people within TSA, we had gotten a
sense that there was a culture of fear and intimidation. I will
have to say with Admiral Neffenger's approach, it was a breath
of fresh air that he came in with a different kind of an
attitude, not only towards oversight, but how it is that he
treated his rank and file.
The question I have, of course, is how far down that goes
into what is an immense organization and whether that will
continue with new leadership.
Mr. Cummings. This assignment--what do you call it when
they assign people to different places?
Mr. Roth. Directed reassignment, I believe.
Mr. Cummings. Where is that now? I mean, what's happening
with that? I think he suspended it, right? Is that right?
Ms. Gowadia. Sir, the practice has been discontinued. The
only time we ask for reassignments is if it is in the interest
of security, and we certainly only go to it at the very, very
last opportune moment to move people across the country that
way. We have put in controls so that these decisions cannot be
made unilaterally. Our Office of Human Capital must get into
the loop in making the decision. And if a member of the
executive service has to be moved, it comes to my desk for
signature. And we will definitely look for as many options as
possible and only ask an employee to move if it is absolutely
in the interest of security.
Mr. Cummings. And so I take it, so that there have been a
substantial reduction in--just based on what you just said----
Ms. Gowadia. Yes, indeed.
Mr. Cummings. --in that type of action?
Can you tell us what--I mean, where we went? Did we go from
300 to 5? I mean, what? Can you give me an idea of the
reduction?
Ms. Gowadia. Sir, I apologize. I do not have exact numbers.
But what I can tell you is it has not happened since my tenure
at----
Mr. Cummings. Because you agree that that's a very cold
thing to do?
Ms. Gowadia. Absolutely.
Mr. Cummings. Life is short.
Ms. Gowadia. To move people for no reason that is not fully
focused to the mission reason, I do not think that is an
appropriate practice, and we do not do that at TSA anymore.
Mr. Cummings. Okay.
Let me go to you, Doctor. The former deputy administrator
said employees got arrows in their backs and were subjected to,
you know, retribution with regard to personnel practices that
made them fearful of bringing up security issues. Does that
sound like an environment in which employees are free to
identify risks without fear of retribution?
Ms. Gowadia. Mr. Cummings, may I--may I please give you one
sentence before I go to your--the practices Mr. Hatfield is
discussing is well before my time. And he's discussing
practices even before Administrator Neffenger was in place.
I want very much for the workforce at TSA to know the
things that ailed them in the past, their leadership today
stands behind them and will not--not tolerate any retaliation
for prohibited personnel practices. That is so important,
because a tone has to be set here. And you asked IG Roth how
far it goes down. I make the rounds from the airport level all
the way through offices, through cubicles, working very hard to
make it so that people see the support they get from their
leadership.
Also, we are working on leadership training. We want to
make it so that the notion of leadership begins on the
frontline to the TSOs all the way up to leadership, which will
help that culture change that you were asking.
Mr. Cummings. Yeah, the culture change. But what I'm
concerned about is I--you know, I understand what you're trying
to do, but how do we put policies in place so that when you
leave--you know, this--you know, you may be gone. I don't know
when. But my point is, how do you put the things in so that
they stay in place?
Ms. Gowadia. Absolutely, sir. So I will tell you, we have
had outside--the Department has come in and looked at our
personnel practices and our policies to make it so that we are
now more in concert with the Department. We have put in checks
and balances.
But, Congressman, you--the thing that I--I hope--I hope you
see is you cannot legislate, you cannot mandate, you cannot
make by--you cannot change that by virtue of a piece of paper.
It changes by changing the culture. People have to be--people
have to feel appreciated. People have to feel supported. And I
give you my word, that as long as I'm at TSA, that is my quest.
Mr. Cummings. Well, can you apply Title IV?
Ms. Gowadia. Sir, we will certainly work on the Title IV
notions with you, but I would like very much to undertake a
study to see what it would take.
But all the privileges afforded by Title IV that our staff
tell us they want when it comes to in-grade pay increases, et
cetera, we can work on that by virtue of policy. And I am
working very hard to make it so that we can afford our staff,
by virtue of policy, everything that they want.
Mr. Cummings. Ms. Lerner, you described a practice by TSA
withholding information that TSA considers attorney-client
privilege. You said, and I quote, When TSA refuses to disclose
why it takes an action, it is impossible for us to investigate
whether there was retaliation.
Do you believe that TSA's refusal to provide the
information you need hinders the agency's ability to create an
environment in which employees are free to identify a risk
without fear of retribution?
Ms. Lerner. Sure. I mean, you need robust enforcement of
the law, and the law has no meaning unless it's enforced, and
it really hinders our ability to make findings when we're not
getting full information from the agency.
Mr. Cummings. Now, Doctor, TSA can have it one way or the
other but not both. Have you asked the Department of Homeland
Security about this so-called attorney-client privilege and
provide to the OSC all of the information it has requested?
Ms. Gowadia. Yes, sir, we have discussed the matter with
general counsel.
Mr. Cummings. And what did you come up with?
Ms. Gowadia. That it is Department policy to exert
attorney-client privilege in certain instances, a very, very
small percentage of the information.
Mr. Cummings. When the chairman was asking you about who we
need to talk to, can you tell me who that was? The person you
just talked about.
Ms. Gowadia. Sir, I did--actually, my staff has been able
to get us permission to----
Mr. Cummings. Why don't you give it to us now.
Ms. Gowadia. Joe Maher, Joseph Maher, acting general----
Mr. Cummings. Can you spell that, please?
Ms. Gowadia. J-o-s-e-p-h M-a-h-e-r. He's our acting general
counsel.
Mr. Cummings. And so he would be the one that we would talk
to to try to figure out what the roadblock is and why they are
withholding information?
Ms. Gowadia. Yes, sir.
Mr. Cummings. Tell me something. You've known for weeks
that this was a deep concern for the committee, and I--and you
came here, and it seemed like you were unprepared to answer the
questions. Help me with that.
I mean, you knew--you knew we were going to be asking about
this. Right? I mean, hello. And you know it's a bipartisan
effort. And you know we don't want to be hindered with regard
to information. I was just wondering why.
Ms. Gowadia. So perhaps I miscommunicated. I was not--I
fully knew that this was your concern. I just was not aware
that Ms. Lerner's staff had had any concerns in being able to
come to a resolution in any particular case.
Mr. Cummings. Okay. Well, you all need to talk then.
Ms. Lerner, y'all need to talk. Huh? We can pull Mr. Roth
out, y'all can come together. I mean, come on now. We shouldn't
have to bring you all over here just so all you can talk.
You have telephones? Email?
Ms. Gowadia. Sir, we've already decided we're going to
start that partnership.
Mr. Cummings. Good. Good, good.
I yield back.
Chairman Chaffetz. Thank you.
I'm going to recognize myself, and then we'll go to Mr.
Comer.
Let's talk about that relationship with the OSC. What do
you believe is your legal obligation to provide documents to
the OSC? What is your legal obligation?
Ms. Gowadia. Sir, we have a legal obligation to provide
documents to OSC.
Chairman Chaffetz. I find that curious, because who is
Francine Kerner?
Ms. Gowadia. She's chief counsel at TSA.
Chairman Chaffetz. And how long has she been in that role?
Ms. Gowadia. I do believe Ms. Kerner's been there since the
start of TSA.
Chairman Chaffetz. So she was quote--this is a quote. This
is February 21st, okay, of this year. Here's what her quote was
when she visited with us: ``TSA has no legal obligation to turn
over documents to OSC,'' end quote.
How is it that she says there's no legal obligation, and
you gave this committee a letter yesterday that says, quote,
``TSA recognizes its legal obligation to provide documents to
the Office of Special Counsel and does so regularly,'' end
quote? How do you rectify?
Ms. Gowadia. Sir, I was not in the meeting in which Ms.
Kerner is alleged to have said that. It is my understanding
that she was using that phrase in context to the attorney-
client privilege actions, not in the generality.
Chairman Chaffetz. Not in the generality. No legal
obligation. You say there is a legal obligation.
Well, how would you describe your relationship with the
OSC?
Ms. Gowadia. My personal relationship with the OSC has only
just begun, and I--I can promise you that I will extend to Ms.
Lerner an arm of partnership to make it so that if there are
differences, they can be resolved.
Chairman Chaffetz. And how would you--that's your personal
one. How would you describe the overall TSA relationship with
the OSC?
Ms. Gowadia. Sir, it is my understanding that lawyer to
lawyer, they do have a very good working relationship. At least
that is, certainly, our side of--our side of it. My lawyers
have never said that they've had any issue working with OSC.
Chairman Chaffetz. Who is Steve Colon?
Ms. Gowadia. I do believe Steve Colon is presently acting
in a different capacity, but he used to be in the Office of
Chief Counsel.
Chairman Chaffetz. He was the assistant chief counsel under
Francine Kerner, correct?
Ms. Gowadia. Yes.
Chairman Chaffetz. And he was detailed to head--and this is
what's absolutely stunning. He was detailed to head the TSA
Office of Professional Responsibility. Correct?
Ms. Gowadia. Yes, sir.
Chairman Chaffetz. Let me put up an email that he wrote.
I'll read this to you: ``Jeff, if you can join us, I'd
appreciate it.'' Sorry. ``I'm done being conciliatory with the
OSC. They have been a nightmare to deal with for the employment
advice folks. If they want war, they got one. Unless the
evidence stinks.''
You can go ahead and put that down.
Does that sound like a responsive TSA to the OSC?
Ms. Gowadia. No, sir, it does not.
Chairman Chaffetz. Did you fire him?
Ms. Gowadia. Oh, no, sir.
Chairman Chaffetz. Are you going to fire his butt?
Ms. Gowadia. No, sir.
Chairman Chaffetz. I would. I'd fire that guy. And you know
what, until you clean house with the legal folks in your
agency, you're going to have a lot of problems. That is not the
kind of attitude. ``We're going to go to war with the OSC''?
Are you familiar with the law? Are you familiar with the code
that comes out of the OPM regulations?
You can tell me it's all rosy, but when your chief legal
counsel, who has been there since the inception, is saying
there's no legal obligation, she is not abiding by the law.
Ms. Gowadia. Mr. Chaffetz, please let me leave you with no
doubt to the matter. That is unacceptable.
Chairman Chaffetz. Then what are you going to do about it?
Ms. Gowadia. He will--he has, I do believe already, been
disciplined, but we will look into it.
Chairman Chaffetz. And you're going to tell us what that
discipline is?
Ms. Gowadia. Yes. Please understand, sir, that the
counselors that work for us also report to the Department, so I
have to work this out with the Department.
Chairman Chaffetz. And you know what, you talked about the
culture. We get culture reports, and DHS routinely is at the
bottom of the heap. I mean, they--they take the 320 agencies
out there and guess who's at the bottom of the bottom? Homeland
Security. TSA, Secret Service, we deal with it. There's a
common denominator. Okay? The common denominator is Homeland
Security.
In order to enrich the culture, you have to have confidence
that when something goes awry, there is a fair and honest
hearing of that information. And if you have a whistleblower
who believes they've been retaliated against, we need a fair
arbiter to come in and look at the facts, all of the facts.
You're not providing those facts to the OSC, and every employee
knows it. They know the deck is stacked against them, and they
don't get a fair reading.
And you know what, if you want to change that culture,
people have to be confident that whether you're at the top of
the food chain or the new employee who's just going to work at
the TSA, if something goes awry, you're going to get a fair
hearing. It doesn't mean we presuppose the conclusion, but when
the OSC, the fair, independent arbiter here, doesn't get all
the information, guess what? They can--you can't look anybody
in the eye and tell them that they had their case heard out.
Of all those things I just said, what would you disagree
with?
Ms. Gowadia. Sir, I would not disagree with you that a fair
and a robust investigation into a person's allegations should
be conducted. Just as the whistleblowers have rights, the
allegations are made against another employee, and they have
rights too. So the due process must go through. We must follow
through on the process. I agree with you on that.
Chairman Chaffetz. Ms. Lerner, your perspective on that?
Ms. Lerner. You know, when we talk about changing the
culture, there are a lot of things that an agency can do. But,
you know, by cooperating with OSC, by providing these
documents, that could really help. You know, I think that
there's just some misinformation that may be going on, and we
can, hopefully, clear that up. But, you know, whistleblower
protections are key.
Other things could help too. I think the full protections
of Title IV applying to TSA would be very helpful so that
there's a--more of a feeling of fairness in employment actions
so that hiring decisions and promotion decisions are perceived
as fair. But I think the first place to start is where the
protections already lie as with----
Chairman Chaffetz. I want to recognize Mr. Comer, but I've
got to go through this--in fact, let me do that, and then go
through this list of things that I need you all to provide.
Let's--I'll yield back.
And let's now recognize Mr. Comer of Kentucky.
Mr. Comer. Thank you, Mr. Chairman. Thank you, Mr.
Chairman.
These questions are for Dr. Gowadia. On May 12, 2016, when
TSA's administrator at the time testified before the committee,
he was questioned in detail on how he would respond to
whistleblower allegations of retaliation, including the
improper use of directed reassignments. I will read you several
of the statements he made, and I think we may have a slide.
Slide one: ``I will await the Office of Special Counsel. I
think it's important that we look for an independent review of
that to determine whether or not there was improper use.'' And
he's talking about of directed reassignments.
Slide two: ``I'm very interested in the results of the
Office of Special Counsel investigation into the existing cases
with the individuals who appeared before you. Depending on
those findings, I will take immediate action against that.''
And slide three, and, again, he said: ``Depending on what
they find, it may point to an appropriate discipline.''
And my first question: How can TSA tell Congress it will
base its responses on OSC's investigations and then refuse to
give OSC the documents necessary to complete those
investigations?
Ms. Gowadia. Sir, it is--in listening to Ms. Lerner, I am--
I am beginning to appreciate that she may need more
information, which is why we were--we offered to give her the
privileged log.
Now, I will tell you that, to date, we have not received
any information that says--at least to the best of my
knowledge, information that says the information that has been
redacted has interfered with OSC's ability to render a verdict
on--I believe it's 46 cases that they have so far taken up for
TSA.
Mr. Comer. My second question: Do you agree with the
administrator that it's important for OSC to complete an
independent review of whistleblower allegations against TSA?
Ms. Gowadia. Absolutely.
Mr. Comer. Okay. Next question: Is there a conflict of
interest for Francine Kerner and the Office of Chief Counsel to
withhold documents from OSC investigations when multiple
whistleblowers who reported retaliation to OSC alleged Kerner
was involved in the misconduct against them?
Ms. Gowadia. So when it comes to the attorney-client
privilege information, again, we are bound by that through the
Department's guidance. So I--I--we are not in a position to
unilaterally waive that privilege.
Mr. Comer. One statement here of observation. I'm new. I'm
a freshman, and campaigning for the past year, people talk
about the swamp, and they're frustrated, frustrated with
Congress, but--their frustrated with bureaucracies that just
aren't accountable. And it seems like, you know, this
committee's been trying for a long time to determine and fix
some problems and get some transparency, and in my opinion, it
doesn't look like we have that. And I'm looking forward to
getting some results and finding out what--what's going on over
there and how we can fix the problem.
I yield back my time, Mr. Chairman.
Chairman Chaffetz. Thank you.
I now recognize the ranking member, Mr. Cummings.
Mr. Cummings. I just want to get to the bottom line.
Obviously, you're not getting all the information. You--the
problem--it sounds like somebody or bodies has not been getting
you the information, because if Ms. Lerner needs information to
do what she has to do, it sounds like there's some block here
somewhere. And I think you need to get to the people in your
agency--I mean, just as--I'm just sitting here listening--and
figure out who's not giving you information. I'm just--now,
maybe I'm assuming too much.
Ms. Gowadia. Mr. Cummings, please let me leave you with no
doubt in this matter----
Mr. Cummings. Whoa, whoa, whoa. Before you say anything,
it's either you or them.
Ms. Gowadia. It's me.
Mr. Cummings. Okay. Then you need to explain that.
Ms. Gowadia. Yes, sir.
Mr. Cummings. So now you need to tell the chairman why
you're blocking it. Now I'm putting it on you. I tried to give
you an out, but you didn't take it, so----
Ms. Gowadia. Absolutely not, sir. The buck definitely stops
at my desk.
Mr. Cummings. Okay. Okay.
Ms. Gowadia. I take responsibility for decisions made at
TSA. Now, when it comes to the attorney-client privilege issue,
again, we are not independent----
Mr. Cummings. Right. You've got lawyers to advise you.
Ms. Gowadia. I have to follow the Department's guidance and
response.
Mr. Cummings. Right. I got that. Okay.
Ms. Gowadia. But I have----
Mr. Cummings. It sounds like you didn't know Ms. Lerner--
the extent of Ms. Lerner's concerns. That's what I'm getting
to. It seems like you didn't--I'm just listening to you. It
sounds like you did not know the extent of her concerns.
Ms. Gowadia. This is true. I did not. Can I----
Mr. Cummings. Whoa, whoa, whoa. I know you want the buck to
stop with you. I'm trying to get to whoever is not getting the
information to you now.
So you just said you didn't know the extent of the problem,
but then you said the buck stops with you. Well, what I'm
saying is, something is happening before it even gets to you,
if you don't know the extent of the problem. Does that make
sense?
Ms. Gowadia. Certainly, sir. But what I can do is I can ask
more questions, and I will.
Mr. Cummings. Right. You need to.
Ms. Gowadia. And I will.
Mr. Cummings. And what I'm trying to tell you, I'm trying
to help you.
Ms. Gowadia. Indeed, sir.
Mr. Cummings. What I'm trying to tell you is that somebody
is not giving you the information that you need, period, or you
would not have--this wouldn't be an issue. I would be--if I
were in your shoes, and my staff, and I didn't have the
information I needed, and I had to walk into a hearing like
this and have somebody tell me they have not gotten the
information, and I--and I don't know it, there's a problem,
major problem. You follow me?
Ms. Gowadia. Yes, sir.
Mr. Cummings. So I don't--I just--like I said, I'm just
trying to get to the bottom line. Because, you know, we're just
trying to get this stuff resolved and move along. We've got a
lot of issues we deal with here, and hopefully, we'll be able
to get it resolved. When you get back to the office, maybe you
can kind of cut through all that. All right.
Thank you, all. I'm finished.
Ms. Gowadia. Thank you, sir.
Chairman Chaffetz. Thank you.
I'll recognize myself, and then we'll recognize Mr. Meadows
of North Carolina.
Ms. Lerner, does our committee have the full list of
concerns or outstanding cases that you need more information
from? Do we have that list?
Ms. Lerner. I'm not sure if you have the list, but if you'd
like it, we can certainly get it to you.
Chairman Chaffetz. Let's just confirm that we have the full
list of where you have concerns.
Ms. Gowadia, I just want to clarify that we do expect the
TSA to turn over all information that's been withheld from the
OSC, and we expect that to be done by March 10. That's a week
from Friday. Okay?
That information should be given to both the OSC as well as
the Committee on Oversight and Government Reform. So if you're
choosing to withhold documents, you're making an election to
withhold documents from the OSC, but you're also withholding
documents from Congress. And I'm just being really crystal
clear here with you. You don't withhold these documents from
Homeland--from the inspector general. So you're being very
selective in your application of, quote/unquote, ``attorney-
client privilege,'' which we don't recognize.
If you don't provide those by March 10, I will issue a
subpoena, and we'll--then you'll be on the clock. And then if
you don't comply with that subpoena, you will be in contempt,
and we will pursue that. And I'm just trying to be crystal
clear on the process. It's your--you said the buck stops with
you, but we're going to call in the attorneys. And you can
blame it on Homeland, but you are the acting director, and
that's the tough spot you take when you're the top of the food
chain.
You also have confirmed to the committee that you will
provide logs of the information that's been withheld from the
OSC. Again, not recognizing that you have that right, but
you're going to provide that information to the OSC as well as
this committee also by March 10. Correct?
Ms. Gowadia. Sir, I--I--we will start providing on a
rolling basis immediately----
Chairman Chaffetz. No, no, no, no.
Ms. Gowadia. Sir, I cannot promise you----
Chairman Chaffetz. How many people--how many people work
for you?
Ms. Gowadia. 60,000.
Chairman Chaffetz. You're going to provide that.
Ms. Gowadia. So 45,000 of them are out on the field. We
have to appreciate that this may take some time. I do not want
to leave you with the fact that I'm trying to stonewall you. I
hope that my people back in the shop have already started
working production. But I can promise----
Chairman Chaffetz. It's a log. It's a log. You have tens of
thousands of employees at your disposal.
I'm just telling you, that's what this committee is going
to ask you to do. We've been asking for this for a long time.
It should be no surprise. You said you have a log. It shouldn't
be that hard to provide it.
Ms. Gowadia. So I did not say we have a log. The offer I
made was, moving forward, we will always provide a log. You are
asking me to go back to, again, a number you don't want to
hear, but 50,000 pages to figure out what percentage of that
was redacted and from that develop a log. We will make our best
effort to get it to you by Friday, but if we don't make the
full--full log available for the retroactive instances, we will
start producing it on a rolling basis, which is something we do
with the OSC and something we certainly do with you.
Chairman Chaffetz. You put anybody that you need on top of
that, prioritize the safety of the public, but we're also here
to protect the safety of the employees. And so that's the
timeline, and that's what I expect from you.
I also need the names of any other individuals at Homeland
Security who have advised the TSA to withhold or apply the
privilege. Agreed?
Ms. Gowadia. Yes, sir.
Chairman Chaffetz. And that too by March 10.
You also have agreed to provide the discipline of Mr.
Colon. And that too you can provide by March 10?
Ms. Gowadia. If the discipline has already taken place. I--
we will have--I'll have to look at it. I don't know----
Chairman Chaffetz. I thought you said he was disciplined?
Ms. Gowadia. No, I said he may be in the process of being
disciplined. I don't know that he has.
Chairman Chaffetz. You'll give us an update regarding this?
Ms. Gowadia. I will give you an update.
Chairman Chaffetz. Fair enough. And then you're going to
provide the government guidance or advice regarding withholding
information from OSC, correct?
Ms. Gowadia. I'm sorry. Would you say that again.
Chairman Chaffetz. Provide the departmental guidance or
advice regarding withholding information from the OSC.
Ms. Gowadia. I will work with the Department to get you
something on that.
Chairman Chaffetz. Again, we expect that information by
March 10.
Let's now recognize the gentleman from North Carolina, Mr.
Meadows.
Mr. Meadows. Thank you, Mr. Chairman.
I thank each of you. My apologies. I had four or five
things going on.
So, Dr. Gowadia, I want to come to you. And thank you for
the meeting yesterday. And, obviously, we've got counsel here.
I thank her as well.
And I guess I'm a little confused, because yesterday, we
talked about a reset. We talked about going forward and really
working this. But my staff informed me, and that's why I came
back, that we're, again, trying to insert an attorney-client
privilege and keep things from OSC. And I didn't leave with
that impression yesterday from our private meeting. Am I
misinformed?
Ms. Gowadia. Mr. Meadows, I--I--I apologize if I left you
with the notion that I could do something without the
Department's guidance. I still have to follow Department's
guidance. What I offered to you----
Mr. Meadows. So are you saying that the Secretary of DHS
concurs with that? Because I'll call him.
Ms. Gowadia. No, sir, I am not speaking for the Secretary
at all.
Mr. Meadows. So then what is--I was very clear yesterday.
In fact, in ways I was a little bit more blunt than I wanted to
be, and acknowledged that to your counsel that was there, and
yet I thought the agreements that we had yesterday coming out
of that meeting, and it sounds like you're walking back now,
Dr. Gowadia. Are you not?
Ms. Gowadia. No, sir, I don't believe I am. I believe you
mentioned that you did not think it was appropriate----
Mr. Meadows. Well, and you agreed that you would give the
documents to OSC unredacted.
Ms. Gowadia. No, sir, I do not believe I did that. And if I
left you with that impression, I deeply apologize.
Mr. Meadows. Well, I should have had a stenographer there
then. I mean, you know--Dr. Gowadia, let me just tell you, I
told you I would give you grace. And I'm willing to. I'm
willing to say that there's been a lot of mistakes that have
been made here. But what I will not do is have a premeeting
that went really well, and then have you, after you went back
and apparently talked to somebody, and come in here today and
suggest that it's not okay.
Ms. Gowadia. Mr. Meadows, again, I sincerely apologize if I
left you with the impression that I could give away the
attorney-client----
Mr. Meadows. Who can?
Ms. Gowadia. It has to come to us for guidance through the
Department, general counsel at the Department.
Mr. Meadows. All right. So I asked you yesterday for what
statute. You said there wasn't a statute. All right? So I asked
you for what rules or regs, and you said it was Department
guidance.
Ms. Gowadia. Uh-huh.
Mr. Meadows. I understand that you don't have that written.
Is that correct?
Ms. Gowadia. Not to my knowledge, sir.
Mr. Meadows. All right. So if you don't have written
guidance, who the heck gave it to you?
Ms. Gowadia. So the attorneys----
Mr. Meadows. Who told you that you have guidance?
Ms. Gowadia. The general counsel, the acting general
counsel.
Mr. Meadows. All right. So the very person that I've had
concerns with, that I expressed to you yesterday--general
counsel for who?
Ms. Gowadia. General counsel for the Department, sir.
Mr. Meadows. For the Department of Homeland Security or
TSA?
Ms. Gowadia. Yes, sir. Department of Homeland Security.
Mr. Meadows. So the general counsel, between yesterday and
today----
Ms. Gowadia. No, not between yesterday and today. Again,
going back to yesterday----
Mr. Meadows. So when did you talk to the general counsel
about this guidance?
Ms. Gowadia. So before--well before our meeting yesterday,
which is why I am a little shocked that I left you----
Mr. Meadows. Okay. So maybe I misunderstood you. So let me
ask you this: How can we believe the general guidance of verbal
communication from your general counsel--how--how can Congress
look at that? Do you not see a problem with that?
Ms. Gowadia. I do, sir, and this is why I am committed to
working with the Department to get you something.
Mr. Meadows. All right. So let me just tell you: If you
will comply--I don't recognize the attorney-client privilege,
and you know that I don't.
Ms. Gowadia. Yes, sir, that was clear yesterday.
Mr. Meadows. That was clear. The other part of that, the
chairman doesn't recognize it, and neither does the ranking
member recognize it.
Ms. Gowadia. Yes, sir, that is clear.
Mr. Meadows. All we want is to make sure that Ms. Lerner
can get her job done and not be stonewalled. And I told you
yesterday that I was willing to have a reset, but today's
testimony is very, very troubling, because it sounds like that
we had a nice kumbaya kind of meeting, and then all of a
sudden, we're here today with entrenched rhetoric coming from
the general counsel. Is that not it?
Ms. Gowadia. No, Mr. Meadows. Again, I deeply appreciate
the time you took to visit with me yesterday.
Mr. Meadows. No, I appreciate your time. Let me just say
this, it needs to be productive time, though.
Ms. Gowadia. Absolutely. And one of the promises that I
made to you yesterday was I would reach out to Ms. Kerner----
Mr. Meadows. Okay. But you're saying that the things you
redacted won't interfere with her investigation.
Ms. Gowadia. And I went back----
Mr. Meadows. That's your sworn testimony.
Ms. Gowadia. I went back--in fact, as part of my testimony,
I recounted something I said to you yesterday. It was, to the
best of my knowledge at that point, that nothing had----
Mr. Meadows. You used the qualifier, to the best of your
knowledge.
Ms. Gowadia. And so when I went back from our meeting, I
asked my staff to go through all their emails and determine if
that was factual. When they came back with two----
Mr. Meadows. Okay. Right.
Ms. Gowadia. --at that moment I said to them, from now on,
policy is if you ever redact anything, you will provide the OSC
with the privilege log.
Mr. Meadows. All right. So let me ask you this: Has the OSC
ever disclosed things that were not appropriate to your
knowledge?
Ms. Gowadia. No, sir, not to my knowledge.
Mr. Meadows. Well, then why do you redact it then? If
they've never had a problem, why do you redact it?
Ms. Gowadia. So there are multiple parties, as we
discussed, in an ongoing case.
Mr. Meadows. But if they've never released any of that, why
are you concerned?
Let me tell you why you're concerned. You're trying to
cover up for something that may or may not have been done. And
I told you I would reset. But at the same time, if you're not
going to reset and give her what she needs, we will look at
this--with the chairman's indulgence, we will look at this. We
will ask for subpoenas. We will make sure that we get the
information. I am not going to be stonewalled.
Ms. Gowadia. Sir, it is absolutely not my intent to
stonewall you. And I do appreciate that we have a reset and our
ability to share information and be absolutely transparent, but
I do appreciate that there are certain attorney-client
privileged issues----
Mr. Meadows. No, I don't appreciate that.
Ms. Gowadia. I do. I have to work with the Department.
Mr. Meadows. Okay.
Ms. Gowadia. I promise you, I will take it back----
Mr. Meadows. So should I call General Kelly?
Ms. Gowadia. Please don't do that until I've----
Mr. Meadows. Well, let me just tell you, you've got a short
fuse. Because I can't imagine that General Kelly would like to
cover up anything.
Ms. Gowadia. Sir, please. I hope you can--you cannot
imagine that I would want to cover up anything.
Mr. Meadows. Well, that's how it appears, Dr. Gowadia.
That's what I'm saying, just get Ms. Lerner what she needs.
Okay?
I yield back.
Chairman Chaffetz. I thank the gentleman.
I--what--Ms. Gowadia, if the Homeland Security guidance
violates Federal law, which one are you going to follow?
Ms. Gowadia. The Federal law, sir.
Chairman Chaffetz. Mr. Roth, what information is TSA not
providing you?
Mr. Roth. Nothing. They're completely cooperative.
Chairman Chaffetz. Do you give everything to Homeland
Security's inspector general?
Ms. Gowadia. Yes, sir, we do.
Chairman Chaffetz. Do you give everything to the OSC?
Ms. Gowadia. Other than the attorney-client privileged
redacted information, yes, sir, we do.
Chairman Chaffetz. So why don't you recognize the--your so-
called made up attorney-client privilege? Why isn't that true
with the inspector general?
Ms. Gowadia. Sir, they are part of the Department. The
guidance applies external to the Department.
Chairman Chaffetz. External to the Department.
You're part of the United States Government, correct?
Ms. Gowadia. We all are, sir.
Chairman Chaffetz. Who do you work for?
Ms. Gowadia. The American public.
Chairman Chaffetz. That's right. That's right. That's who's
paying. And part of what we did is we set up a statute, law,
Federal law, that you said you were going to abide by that
allows the Office of Special Counsel to dive into these issues.
So you do treat the inspector general different than you do
the OSC?
Ms. Gowadia. In this instance, yes, we do.
Chairman Chaffetz. Do we have any problems with that, Ms.
Lerner?
Ms. Lerner. Yeah. Let me just say, we do get SSI
information. We get sensitive security information from TSA.
We've never had a problem getting that. We handle it
appropriately. They can mark it as sensitive.
I'm confused about why they don't provide us with what they
consider to be attorney-client. We can--we can handle that
information the same way we handle the SSI information. If they
want to mark something as privileged, we'll make sure it's
handled in a confidential way. We're not going to release it
without talking to them. I can address any----
Chairman Chaffetz. You have a solid reputation. You don't
have to convince us that you have the reputation. And we've set
it up so that you could be the one to be the independent
arbiter here.
Ms. Gowadia, is the White House external to the Department?
Ms. Gowadia. I--yes, I imagine--yes, they are, sir, but I
don't know--I--if the next question is do you share it with the
White House, I don't know the answer to that. I'll have to take
that for the record.
Chairman Chaffetz. Yeah. It's just the logic here, it just
doesn't make sense. It's just kind of comical, and that's the
problem. And you're unique. You're an outlier. And----
Ms. Gowadia. The Department, sir. This guidance applies not
just to TSA but all departments.
Chairman Chaffetz. No. I think you're--I think you're a
very nice person. You have a host of issues that you have to
deal with. I think the guidance here that you're getting is
wrong. I think it's--violates Federal law. I think it's
unacceptable and it's something that now has the full attention
of this committee, I assure. And we are going to go to the ends
of the earth to--and, really, at the ultimate, what we're
trying to do, both sides of the aisle, we're trying to protect
whistleblowers so they get a fair hearing.
But you know what, they can't get a fair hearing if the OSC
only gets a portion of the documentation. Even though the law
says they get all of the information, and they are set up to do
this, they are authorized by Congress, they do work for the
American people. We do appropriate money, even though some
would like more money. That's the problem and the challenge.
And there is a conflict when that attorney may or may not
have been involved in some of those decisions in covering that
up. I think you do have a cultural problem with the attorneys
as well, both at TSA and at Homeland Security, as was
demonstrated by the email. And I am very curious to see what
the discipline was for that sort of attitude and approach. And
I find it wholly unacceptable.
I do appreciate everybody who is here and sharing testimony
today. We look forward to following it up. And the committee
now stands adjourned.
[Whereupon, at 12:38 p.m., the committee was adjourned.]
APPENDIX
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