[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]













                          TRANSPARENCY AT TSA

=======================================================================

                                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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              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

                              ----------                              
                                                                   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

                              ----------                              


                        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:]
    
    
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    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:]
    
    
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    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:]
    
    
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    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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