Inspector general roth. You are now recognized for five minutes. Mr. Roth thank you, chairman chaffetz, Ranking Member cummings, and members of the committee. Thank you for letting me testify relating to tsa. The inspector oversight of tsa fosters positive change and makes government better. Our effectiveness of our oversight depends on our ability to make balanced reports that accurately includes findings and recommendations to resolve. The Inspector General act requires us we inform the d. H. S. Secretary, congress and the public about any problems and deficiencies we identify through our work. Public scrutiny in 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 welldocumented. I first encountered the issue in applied ssi to audit information similar to the information at the airport in new york. Similar information had been previously published in two o. I. G. Reports. I appealed the issue directly to the t. S. A. Administrator but it was not resolved to my satisfaction it. Sure enough it was repeated in , our latest report on tsa i. T. Systems that was published in december of last year. In that report, tsa again demanded redax of information that had previously been freely published without objection and which my i. T. Security experts told me poses no threat to Aviation Security. And they made similar findings and i believe the problem is deeply rooted and systemic. For instance, as far back as 2005, g. A. O. Issued a report finding that tsa did not have adequate policies and procedures to determine what constitutes ssi or who was authorized to make the designation. Found that tsas lack of internal controls left tsa unable to be ensured 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 the tsas management and use of ssi designation, noting the improper indication of ssi and, i quote raised the spectrum we heard against and again about tsa using the security classifications to avoid having public discussions about certain things that may be unpleasant for them to discuss in public,. In addition to these inconsistent ssi designations, we have encountered instances in which tsa redacted information so widely known that redax bordered on absurd. For example, tsa redacted, claiming ssi a statement in one , of our draft reports related to expedited screening process. Heres the quote. Passengers are not required to remove shoes, belts, laptops, liquids or jells, end quote. We 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. Ultimately, tsa agreed that the information was not, in fact, ssi and should not have been redacted. While this was appropriately resolved, it takes away from the audit process and causes unnecessary delay. Likewise, we have other instances in which tsa has attempted to restrict information we found on their own website. These examples highlight, what i believe, is incoherent and inconsistent nature of the program and raises whether tsa could be trusted to make reasonable, appropriate, and consistent ssi designations. Under dhs policy, any authorized holder of ssi who believes a proper may is in challenge the marking. Unfortunately, as i discovered, this appeals process is structured to ratify tsas ssi designation and prevent by independent external entities. This appeals process is properly and fails to balance threats against Aviation Security and is honorable to abuse. We are currently in the fieldwork stage of a cover interview of tsas management of the ssi program and 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 the committee. Additionally, we will continue to review and publish public reports on tsas programs and operations. To the extent we continue to observe the abuse of s. S. I. Designation we will continue to highlight. Mr. Chairman, this concludes my testimony. I am happy to answer any questions you or any nebs of the committee may have. Members of the committee may have. Mr. Chaffetz we will now go to ms. 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 investigation of whistleblower retaliation at the tsa. I appreciate the committees commitment to oversight, including strengthening o. S. C. s ability to have our Good Government mission. I want to take this opportunity to thank this committee of passing h. R. 69. During the opening week of this congress. That legislation will help o. C. S. Conduct our investigation at t. S. A. And other agencies. During our investigation, it is standard to interview witnesses. A full and complete investigation requires access to all relevant information. Although agencies generally cooperate with o. S. C. s requests, some do not. Some withhold documents and other information by asserting common law privileges and in particular the attorneyclient privilege. As the committee knows, the attorneyclient privilege protects Certain Communications in order to promote frank and candid discussion. You spent 2 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 context, such as in litigation with third parties. Having said that, there is simply no basis for federal agencies to assert the attorneyclient 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 attorneyclient privilege can be used during an administrative investigation between 2 government agencies. This makes sense. We all work for the same government. Congress and this committee in particular have made clear there is a strong Public Interest in exposing government wrongdoing and upholding married 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 attorneyclient privilege in several cases. In 2012, congress extended whistleblower protections act. Since then, o. S. C. Has received more than 350 retaliation cases from the tsa employees. Two pairs of companion cases compares the challenges that osc faces in getting needed information from the tsa. The complaints are tsa officials who experienced involuntary geographically reassignment, a demotion, and removal all , allegedly in retaliation for their protected whistleblower disclosures. In these cases, tsa withheld information, asserting sclames attorneyclient privilege. Osc has asked tsa to withdraw the claims of prirching but both tsa and dhs rejected these requests. There are several problems with tsas assertion of privilege. First, shielding information from osc conflicts with the statutory mandate to investigate the legality of Personnel Practices. When tsa doesnt disclose the reasons why they took an action against the whistleblower, we cant investigate whether its for tally asian. In addition, tsa attorneyclient privilege review causes significant delay in investigations. In these four cases, osc has spent months waiting for documents well 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 investigating and these directly impacts complainants when they are facing relief, often when they are facing situations at work. Despite the challenges, osc is committed to completing thorough investigations and protecting tsa employees. Thank you for the testimony today. We appreciate the committees interests and look forward to answering your questions. Mr. Chaffetz thank you. We now recognize the gentleman from alabama, mr. Palmer, for five minutes. Mr. Palmer thank you, mr. Chairman. I believe we have a slide. Ms. Lerner, can you give us the examples of the redactions that your office has been provided with . Ms. Lerner yes. Mr. Palmer can you put the slide back up . Ms. Lerner this is one of the attachments to our written submitted testimony. This is an example of the type of document production were getting from tsa. Its a real problem because this document we believe would go directly to the issues we are trying to investigate in the case. Was there a disclosure by the employee . Were they whistleblowing and what were the reasons the agency had for taking the action against the whistleblower after they blew the whistle. When we get a document thats 100 redacted, there is no way to get to the bottom of the information we really need. Mr. Palmer does it appear to you, at least, the use of the redaction is selected and inconsistent to the point it might raise suspicion that it is being used to cover up problems at tsa, would that be fair . Mrs. Lerner i cannot get to their reasons for motivation and redacting, but it does raise concerns. Mr. Palmer dr. Gowadia, were withheld information from the you aware that tsa withheld information from the office of special counsel in this manner . Ms. Gowadia yes, sir, i am aware we do assert attorneyclient privileges in some instances. Explain whycan you they were redacted . Ms. Gowadia so i do not know about the specifics. We would have to go back into the log and determine the exact nature. Mr. Palmer ms. Lerner said even the date, author, recipient of the document were redirected. Can you explain how that information would be privileged . Ms. Gowadia sir, again, i dont know the context in which this particular document mr. Palmer i am not talking about that particular document. There are other documents. Why would you be redacting the date, author, and the recipient . Can you give an explanation of that . Ms. Gowadia sir, it might be on a casebycase basis. Not selective. I would say casebycase. Mr. Palmer it would be selective. Why would you redact the date . Ms. Gowadia again, sir, i have no ability to talk about the document put up or the generalities. It would have to be answered on a casebycase basis. Mr. Palmer you talk about attorneyclient privilege. If there were no attorneys present at the meeting, how could tsa possibly invoke attorneyclient privilege with respect to the document . Ms. Gowadia sir, again, i do not have insight into the particular document you are talking about. Mr. Palmer i am not talking about just this document. This has gone on with other instances, wherein one case the , attorney couldnt even identify the client. Yet, claimed attorneyclient privilege. Ms. Gowadia so let me go back to the question you asked previously if the attorney is not in the meeting. It might be that an employee is asking for attorneys advice on something. Again, its mr. Palmer what if the attorney cant identify the client . Ms. Gowadia i am not sure where that reference is coming from, sir. Mr. Palmer i think well get into that later. Ms. Lerner, would you like to comment on that . Ms. Lerner i think what this boils down to, we dont believe the attorneyclient privilege applies for any document request. We are acting in the agencys shoes. This is an intraagency, intragovernment investigation that congress has asked us to conduct. Its not appropriate for any agency to claim attorneyclient privilege when they are producing documents to osc. It would be the same thing wan with an i. G. Or g. A. O. They would not claim an attorneyclient privilege. Its not appropriate to claim it during an osc investigation either. Mr. Palmer thats part of my problem with this. As i said, selective use of redaction, the inconsistent use of it, claiming attorneyclient privilege, you know, with all due respect, it appears that tsa is trying to cover up problems. Mr. Roth, do you have any comment . Mr. Roth we have been takenate dss has privilege. There are more restrictive on publication because they do not want to preach attorneyclient privilege for a number of reasons. It is their decision whether or not to do that. Position taken the that attorneyclient privilege does not bar us from information. Mr. Palmer i yield back. We do know how important transparency is, but also how important whistleblower protections are to the process. Im pleased 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. We have heard,k Congressional Republicans have failed to provide osc with the funding you need to carry out the work. President obamas congressional justification for the fiscal year 2017 requested additional agency, noting a Record Number of whistleblower 74 over theup prior two years. This learner, was that correct . Has osc seen an increase in its caseload . Do you have a back load in handling whistleblower complaints . Ms. Lerner our caseload has doubled. We get over 6000 complaints over all for program areas, a big increase. Beyond the are ability to work cases the way they need to. We appreciate the houses bill fully funded us. ,he senate bill kept us level at last years levels. We do need an increase in funds, desperately, to do the Things Congress has asked us to do. To be effectively meet appropriate staff, and we dont have it right now. According to fiscal year 2017 budget justification, you . Equested 50 fulltime ms. Lerner yes, thats right. Osc did not receive the increase in staffing as requested . Ms. Lerner also the senate bill at the same level. They did not follow the houses lead in giving us the number requested. Pressuring congress to delay action on the spending bills meaning current levels will until april. Ce have Budget Constraints affected your ability to enforce whistleblower protections . If so, in what way . I think our lawyers are doing an amazing job with the resources they have. We requested additional funds to hire at least 15 more lawyers. We have 40 attorneys right now persecutions of hundreds of retaliation cases. It creates frustration, delays in terms of getting people the frankly,ey need, and our staff is frustrated because they would like to be able to spend appropriate time on cases. It would be helpful if the agency was fully funded. You stated you received more than 350 whistleblower retaliation cases from tsa employees . Ms. Lerner thats right. How many did you receive last year . Ms. Lerner about the same level. Mrs. Demings do ocss constraints resolve the open cases, the high extreme number of open cases you have . Ms. Lerner let me give you an example. When i 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 example. That is double, tripling, of the caseload. 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 theyre really under terrible, you know, workplace situation, someone who, you know, may need immediate relief, we may not always get to their case as quickly as we ought to. It takes 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. Chaffetz i recognize myself. Ms. Gowadia, you said that tsa has zero tolerance on those that are applying retaliation to whistleblowers, correct . Ms. Gowadia yes, sir. Mr. Chaffetz do you believe that the tsa if an employee believes that they have been retaliated against, who is the what organization is the one that comes in to figure out whether or not there has been retaliation . Ms. Gowadia so employees at tsa are afforded all protections from the whistleblower act, all tsa employees so they can go up any number of channels. They can go up to the eeoc line, the osc line, for example, the whistleblower says, i have been retaliated against. The tsa says no, they havent. There is a dispute. Osc is one of the organization, i think the primary organization, to resolve the dispute, correct . Ms. Gowadia certainly. Mr. Chaffetz you agree with that . Ms. Gowadia yes, sir. Mr. Chaffetz so what percentage of the information should the osc be able to review in order to figure out the right conclusion . Osc should so the have all the information they need. Mr. Chaffetz define all of the information. Ms. Gowadia sir, i appreciate where youre headed with your question on the information we redact for attorneyclient privilege issues. In that regard, i have to say we follow departmental guidance. Wait, wait, wait. Theres the law and then theres departmental guidance. You said the osc should get all of the information. What percentage is all . No, its a simple question. No i want to be clear in what im asking. If she is to get all of the information which you said, what percentage, what percentage is all . Ms. Gowadia all would be mathematically would be 100 . But my sentence is all the appropriate information. Mr. Chaffetz appropriate. What so what do you believe the o. S. C. Should not see . Ms. Gowadia sir, the attorneyclient privilege information is currently redacted. I know you dont want to get numbers. Mr. Chaffetz the only number i want to hear is we give the osc 100 of the information. Thats what i want to hear you say. You said they should get all. How can they come to a proper conclusion when you give them something short of 100 . 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 the guidance the department gives us. Your concern has been raised. I can assure you we will follow up with this at the department make guidance in writing if we level. Have to. Make it so we are mr. Chaffetz so you said its Department Guidance. When you provide this committee that Department Guidance that says the attorneyclient privilege will be on my desk . Ms. Gowadia i have already raised the matter with the general counsel. Mr. Chaffetz ms. Gowadia i want a date certain. Unfortunately, sir, this is not up to me. Mr. Chaffetz you are the acting administrator