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 of tsa. You have 50,000plus employees. You dont have the youre relying on guidance from the department and youre going to withhold that information from congress . Ms. Gowadia sir, to my best of my knowledge, the guidance is not in writing. We are working to get mr. Chaffetz wait a second. You dont have you just made this up, its not in write something ms. Gowadia sir, it is a Standard Practice. Mr. Chaffetz no, its not. Mr. Roth ms. Lerner, is this a Standard Practice . Ms. Lerner no, its not. There is no attorneyclient privilege when one Government Agency is investigating another Government Agency. Its very much akin to what the i. G. s mr. Chaffetz 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 we are seeing it with the tsa. Mr. Chaffetz mr. Roth, whats your experience with this . Mr. Roth we are part of the department of Homeland Security so we get everything whether , its attorneyclient or not. Mr. Chaffetz ms. Gowadia, i want you to provide the guidance to this office next friday. Is is that fair . Ms. Gowadia sir, i will work with the department to get you something by next friday. Mr. Chaffetz what let me ask you this. What do you think congress has the right to see . If i asked for all the information, what percentage of the documentation will you give us . Ms. Gowadia sir, again, when it comes to attorneyclient privilege, i am not in position to you are. Etz yes, you are the acting administrator. Im 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. As part of getting ready for this hearing, this has come to my attention and a strong way. I asked my staff to 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 2 instances. I believe ms. Lerner has four in her statement. I have as of yesterday, if we ever redacted this information from the osc, we will always accompany it with a privileged log and that will allow o. S. C. To have more information on the information that has been redirected. Mr. Chaffetz when will you provide the osc the privilege log . Ms. Lerner that would not be sufficient. It suggests that there actually is a privilege. Our position is that there is no attorneyclient privilege. Mr. Chaffetz your point is well taken, and i concur. I would like to see the tsa is taking this socalled privilege. When would you provide that to the osc and the oversight and government reform . Ms. Gowadia with every document henceforth we will issue mr. Chaffetz not the future, the past. Ms. Gowadia im not familiar with how many records mr. Chaffetz it doesnt matter. I want to know what i will have all of them. You have a week until friday or i will issue a subpoena. I dont need a Committee Vote or a judge. I can do it myself. Im telling you on National Television you will get a subpoena. Touche provided voluntarily. We dont buy into the notion there is any such privilege. The information the osc is asking for where they dont have 100 of the documents, when will we have that . Ms. Gowadia i will have to take that to the record. This is a departmental position im not unilaterally allowed mr. Chaffetz who at the department of the Homeland Security is holding you back . Ms. Gowadia the office of general counsel. Mr. Chaffetz give me names. Ms. Gowadia the office of general counsel, general counsel to the secretary. Mr. Chaffetz give me a specific name. Tell me the attorneys telling you not to provide this information to congress. Tell me the names of the attorneys telling you not to provide this to the osc. I want names. Ms. Gowadia i will followup with you. Mr. Chaffetz no. Right now. You had notice of this hearing. I need specific names. How many staff is with the tsa . How many staff are with the tsa in this audience right now . Raise your hand. Who is paid by the tsa . 1, 2, 3 hold them up. 7 here and one6, of these people have to get up out of this committee and go get that information before this hearing is done. I want to have names and we will call them out. We will go to the ends of the earth to protect whistleblowers. We have the osc. Testified time and time again. She needs 100 of the information. Not some of it, not only would you want her to have, all of it. I want to let the department of Homeland Security is prohibiting people from giving that information to the osc. Ms. Gowadia ive asked my stuff to get you a name before the get you a name before the hearing is done. Mr. Chaffetz thank you. And i want to know what information i dont believe information should be withheld from Congress Unless there are certain provisions like the attorneyclient privilege. By hands are tied departmental policy. I cannot take unilateral action because there are ripple effects across the department. I can tell you when it comes to ssi information we are completely transparent, not only the dig but with and your staff. They have all of the information. When it comes to the attorneyclient privilege element mr. Chaffetz we have established that is so bogus. Youre making that up. You are a very talented, smart person and i appreciate the United States of america, but we have whistleblowers who think theyre being retaliated against. I wanted you to stop hiding behind legalese so you do not have to provide documents. We dont see a problem of this magnitude anywhere else except the tsa. I have gone well past my time. Ms. Lawrence for michigan for five minutes, and more, if she needs it. Lawrence transportation Security Officers are frontline of employees that protect our airports and skies are not covered by many of the Civil Service or traction available to most federal employees. Tsos have when they are objected to adverse employment action . Fullowadia they have whistleblower protection rights. They have the ability to bring concerns before an Appellate Board. To raise some of their concerns. Ms. Lawrence who is on the Appellate Board . Ms. Gowadia other tsa employees. Ms. Lawrence what prevents a tso from being subject to our brooch or a personal action taken because the employee has fallen out of favor with the manager . Ms. Gowadia the entire system protects them. This is about leadership. We have to make sure the leadership is well educated, trained, and able to make decisions that do not adversely affect an employee ms. Lawrence i understand, but what prevents an employee from getting arbitrary personnel action . Ms. Gowadia they have the ability to appeal their situation before the Appellate Board. Do you agree fairness, consistency, and due process are important components for federal employees . Ms. Gowadia absolutely. , dolawrence inspector arbitrary Personnel Practices deter whistleblowers from speaking out about security deficiency . Roth there is a Chilling Effect when there is the threat of improper Personnel Practices as a threat from making a disclosure. For example, a safety situation or misconduct on the side of the agency. There is always the fear, the Chilling Effect, something will happen to that person. Ms. Lawrence if tsa employees are reluctant to raise these deficiencies they observe, couldnt this put Aviation Security at risk . Mr. Roth thats absolutely the case. Worry that those folks can be retaliated against if, in fact, the word of their cooperation gets out. Ms. Lawrence im going to make a statement. Tsas arbitrary and inconsistent personnel actions against its employees not only affects morale, but creates serious risks to Aviation Security. Every member of congress is intimately aware of the securities and the responsibilities that are placed on our tsa, and we trust them. Because we in our job must fly back and forth on regular basis. In tsa we have a test case of what happens when an agencys employees are excluded from the due process protection of title 5. 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 5 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 have a Chilling Effect because if im not going to be protected, im not going to come forward. With that, i yield back my time. Mr. Chaffetz thank you. I now recognize the Ranking Member, mr. Cummings. Cummings thank you very last week the committee much. Conducted an interview of former tsa, markector of the hatfield, and he told the committee the tsa was governed breaddirection which and misbehavior and lead to toxicity rather than a healthy agency. Mr. Roth, you testified before the committee in november of 2015 and said an indepth round of covert testing at tsa found results you characterized as troubling. Ng and do think the toxic environment in which selfdirection bread the former as Deputy Director administrator described contributed to the security deficiency you described . Mr. Roth leadership will testify to this as well, or has testified as well. There was a push to move people through the line and ignore the security aspects of what they were doing. Culturally, there was enormous pressure on rank and file to keep the lines moving and not worry so much about security. The answer is yes. Culture thatugh disregarded Aviation Security. Mr. Cummings you found that to be a major problem . Mr. Roth that is correct, yes. Thecummings considering mission of tsa . They were probably missing things they should have caught . Mr. Roth right. We have issues with tsa across the entire spectrum of what they do. Not only at the checkpoint, but how they deal with their employees, airport workers, regarding never a matter. The challenges re normans. It is the most difficult job in dhs to screen passengers every andat airports, Pay Attention to a staff of 60,000 people. It is an enormous job. And dealing with the public getting to where they have to go. Theypeople feeling like are going through too many changes sometimes. Mr. Roth 2 million passengers a day. That is hundreds and hundreds of people. Youcummings in 2015 testified the most critical task was creating a culture of change within tsa, and giving the tsa workforce the opportunity to identify and address risks without fear of retribution. What retribution did you observe at tsa, and why did you believe the most critical task facing the agency was giving the workforce the ability to identify risks without fear of retribution . Had seen, and some of this is simply in the public sphere, public media, about example, that this committee has highlighted with forest transfers and the arbitrary nature of the motions. We have seen that in talking with tsos and people within the tsa, that there was a culture of fear and intimidation. With the admirals approach, it was a breath of fresh air that he came in with a different attitude. Not only towards oversight, but how he treated rankandfile. How far down that goes into an immense organization, and whether that will continue with new leadership. Mr. Cummings what you call would they assign people to different places . Mr. Roth directed reassignment. Mr. Cummings you suspended it, right . Ms. Gowadia the practice has been discontinued. The only time we ask for reassignments is if it is in the interest of security. We only go to it as a very last to move people across the country in that way. We put in controls so these decisions could not be made unilaterally. The office of Human Capital must. E in the loop making decisions if a member of the executive service must be moved it comes to my desk for signature. He will look for as many options anpossible and only ask employee to move if it is in the interest of security. Mr. Cummings i take it there has been a substantial reduction, based on what you t said, can you tell us did we go from 300 to 5 . You give me an idea of the reduction . Ms. Gowadia i apologize. I dont have the exact numbers. I can tell you it has not happened during my tenure. Mr. Cummings you agree that is a cold thing to do . 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 let me go to you, doctor. Those that got arrows in their facts and were subjected to with regard to Personnel Practices that made them fearful of bringing up security issues, does that sound like an environment where employees are free to identify risk without retribution . Ms. Gowadia may i give you one sentence before i go to your the practice is mr. Hatfield was discussing his well before my time. Discussing practices before Administrative Center was in place. The things that elton in the past, their Leadership Today stands behind them. Tolerate not any retaliation. The tone has to be set here. You ask how far it goes down. I make the rounds from the airport level, offices, cubicles , making it hard to people see the support they get from leadership. We are working on leadership training to make it to where the notion of leadership begins on the frontline from the tsos all the way to leadership to help with the culture change. Mr. Cummings i understand what youre trying to do, but how do we put policies in place so that you may beave gone i dont know when, but how do you put things so they stay in place . Ms. Gowadia absolutely. Theave had outside of department, they have looked at our Personnel Practices and policies to make it to where we are more in concert with the department. You have put in checks and balances. That isman, the thing hope that you see is that you youot legislate, mandate, cannot change that by virtue of a piece of paper. It changes by changing the culture. People have to feel appreciated and supported. I give you my word that as long as i am at tsa, that is my quest. Mr. Cummings can you apply it to title 5 . Ms. Gowadia we can work on that, but i would like to undertake a study. All privilege afforded by title 5 our staff tells us they want pay increases,o etc. , we could work on that by virtue of policy. Im working hard to make it to where we can afford our staff by virtue of policy everything they want. Ms. Gowadia you described the practice of withholding information that the tsa considers Attorney Client privilege. You said when tsa refuses to actione why they take an it is impossible to investigate why there was retaliation. Do you believe the tsas refusal to provide the information hinders the agencys environment to create an environment where employees are free to identify risk without fear of retribution . Ms. Lerner you need robust enforcement of the law. The law has no meaning unless it is enforced. That hinders our ability to make findings when we are not getting full information from the agency. Mr. Cummings tsa can have it one way or the other, but not both. Have you asked the department of Homeland Security about this socalled attorneyclient privilege and provided to the osc all of the information requested . Sir, we haveyes, discussed with general counsel. It is Department Policy to insert attorneyclient privilege in a very small percentage of the information. Mr. Cummings when the chairman was asking about who we need to talk to, can you tell me who that was. The person you just talked about. Why dont you give it to us now . Moher thea joseph acting general counsel. The one wes he is would talk to to find out what the roadblocks are and why they are withholding information . Ms. Gowadia yes, sir. Mr. Cummings you have known for weeks this was a deep concern. Here, and it seemed like you were unprepared to answer the questions. Elp me with that you knew we were going to be asking about this . Bipartisan is a effort and we dont want to be hundred with regard to information. I was wondering why. Ms. Gowadia perhaps ive miscommunicated. I fully knew this was your concern. I was just not aware that ms. Lerners staff had any concerns coming to resolution in any case. Mr. Cummings you need to talk, then. You need to talk. We can pull mr. Roth out and you can come together. We can bring you over here just so you can talk. You have telephones . Email . Ms. Gowadia we have already decided we are going to start that part. Mr. Chaffetz i recognize myself. Lets talk about that information with the osc. What you believe is your legal obligation to provide documents to the osc . Your legal obligation . A legaldia we have obligation to provide documents to see. Mr. Chaffetz who is Francine Koerner . Ms. Gowadia chief counsel at tsa. Mr. Chaffetz how long has she been in that role . Gowadia i believe she has been there since the start of tsa. This is atz she was, quote from february 21 of this year. Here is her to turn over documents to o. S. C. , end quote. How is it that she says theres no legal obligation and you give this committee a letter yesterday that says, quote, t. S. A. Recognizes its legal obligation to provide documents to the office of special counsel and does so regularly. End quote. How do you rectify that . Ms. Gowadia sir, i was not in the meeting in which ms. Kerner is allege to have had said that. It is my understanding that she was using that phrase in context with the attorneyclient privilege. Not in the generality. Mr. Chaffetz no legal obligation, you say there is a legal obligation. How would you describe your relationship with the o. S. C. . Ms. Gowadia my personal relationship with the o. S. C. Has only just begun, and i can promise you that i will extend to ms. Lerner an arm of partnership to make it sure so that if there are differences they can be resolved. Mr. Chaffetz and how would you describe the relationship between the t. S. A. And o. S. C. . Ms. Gowadia my understanding is that they have a good working relationship. That is our side of it. Never said they have any issue with o. S. C. Mr. Chaffetz who is steve colon . Ms. Gowadia i believe steve colon is presently acting in a different capacity but he was in the office of chief counsel. Mr. Chaffetz he was assistant chief counsel under francine kerner. Ms. Gowadia yes. Mr. Chaffetz he was detailed to head the office of professional responsibility, correct . Ms. Gowadia yes, sir. Mr. Chaffetz let me put up an email he wrote. Ill read this to you. Jeff, if you could join us id appreciate it. Im done being conciliatory with the o. S. C. 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 t. S. A. To the o. S. C. . Ms. Gowadia no, sir, it does not. Mr. Chaffetz did you fire him . Ms. Gowadia no, sir. Mr. Chaffetz are you going to fire his butt . Ms. Gowadia no, sir. Mr. Chaffetz i would. I would fire that guy. Until you clean house with the legal folks in your agency, youre going to have a lot of problems. That is not the kind of attitude, were going to go to war with the o. S. C. Youre familiar with the law familiar with the code that comes out of the o. P. M. Regulations, you can tell me its all rosy but when your chief Legal Counsel who has been there since the inception says theres 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. Mr. Chaffetz what are you going to do about it . Ms. Gowadia i believe he has been disciplined. You willr. Chaffetz tell us what that disappointed . What that discipline is . Ms. Gowadia i have to work it out with the department. Mr. Chaffetz we get culture reports, dhs routinely is at the bottom of the heap. They take the 320 agencies and guess who is at the bottom . Homeland security. T. S. A. Denominator,mmon that is Homeland Security. Culture,to enrich the you have to have confidence that when something goes awry, there is a fair and honest hearing of that information. If you have a whistleblower who believes they have been retaliated against, we need a fair arbiter to look at the facts, all of the facts. You are not providing those facts to the osc. Every employee knows it. They know the deck is stacked against them and they do not get a fair reading. If you want to change that culture, people have to be confident that whether at the top of the food chain or a new employee who was just going to work at the tsa, if something goes wrong, you will get a fair hearing. Does not mean we presuppose the conclusion but when the osc, the independent arbiter does not get youinformation, guess what, cannot look anybody in the eye and tell them they had their case heard out. All those things i said, what would you disagree with . Ms. Gowadia i would not disagree with you that a fair investigation into a persons allegation should be conducted. Just that the whistleblowers have right, the allegations are made against another employee, they have rights also, the due process must go through, we must follow through on the process. I agree on you with you on that. Mr. Chaffetz miss lerner . A lot of things and agency can do but by cooperating with osc and providing the documents, thatcould help i think there is minutes misinformation that may be going on and hopefully we can clear but was lower protections are key and other things could also help, the full protections of title five applying to tsa would be helpful so that there is more of a inling of fairness employment action so that hiring decisions and promotion decisions are perceived as fair. To start is where the protections lie. The me recognize mr. Cromer and go through the list of things i need you to provide. Lets recognize mr. Comber of conducting kentucky. Thank you. On may 12, 2016, the tsa administrator testify 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. 51, i will await the office of special counsel, i think it is important to look for an independent review of that to determine whether or not there was improper use. He is talking about a directed reassignment. Slide two, i am 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 the findings, i will take immediate action against that. Again, he said depending on what they find, it may point to an appropriate this one. My first question appropriate discipline, how do you Tell Congress who obeys his responses, the osc investigations and refused to give osc the documents necessary to complete those investigations . Sir, and listening to miss lerner, i am beginning to appreciate she may need more information, which is why we offered to give her the privilege, i will tell you that today we have not received any information that says, at least to my knowledge, information that says information that has been redacted interfered with the embassy ability to render a verdict on i believe it is 46 cases they have so far taken up or tsa. Mr. Comer my second question do you agree with the it isstrator that important for osc to complete an independent review of whistleblower allegations against tsa . Ms. Gowadia absolutely. Mr. Comer stion next question a conflict of instance interest from Francine Koerner from withholding documents from osc investigation for multiple was a blowers who reported retaliation to osc, alleging koerner was involved in the misconduct against them . Ms. Gowadia when it comes to the attorneyclient privilege information, we are bound by that through the Department Guidance. We are not in a position to unilaterally wage that privilege. Wave that privilege. Mr. Comer one statement of observation. I am new, i am a freshman. Yearmpaigning for the past , people talk about the swamp and they are frustrated with congress. The frustrated they are frustrated with bureaucracies that are not accountable and it this committee has been trying for a long time to problems,and fix some and get transparency. In my opinion, it does not look like we have that. I am looking forward to getting some results and finding out what is going on and how we can fix the problem. I yield back my time. Mr. Chaffetz i recognize mr. Cummings. Mr. Cummings you are not getting all the information. It sounds like somebody has not been getting you the information because, if miss lerner needs information to do what she needs to do, it sounds like there is some block somewhere. I think you need to get to the people in your agency. Out listening and figuring who is not getting you the information. Maybe i am assuming too much. Ms. Gowadia let me leave you with no doubt in this matter. Esther cummings mr. Cummings it is either you or them . Ms. Gowadia it is me. Mr. Cummings kelly chairman of why you are blocking it. I tried to give you an hour. Ms. Gowadia i think responsibility for decisions made at tsa. When it comes to the attorneyclient privilege issue, we are not independent. I have to follow the department guideline. Mr. Cummings i got that, it sounds like you did not know the extent of missed learners concerns miss lerners concerns. It sounds like you did not know the extent of her concerns. Ms. Gowadia this is true, i did not. Mr. Cummings you want the buck to stop with you, i am trying to get to whoever is not getting you the information. You did not know the extent of the problem but then you said the buck stops with you. I am saying, something happens before it gets to you, if you do not know the extent of the problem. Does that make sense . Ms. Gowadia certainly, i can ask more questions. Mr. Cummings you need to. I am trying to help you. Somebody is not getting you the information you need. Or you would not this would not be an issue. If i were in your shoes and my staff, if i did not have the information i needed and walked into a hearing like this and had somebody tell me they have not gotten the information and i do problem it, there is a a major problem, you follow me . I am trying to get to the bottom line because we are trying to get this stuff resolved and move on. We have a lot of issues to deal with here and hopefully we can get this resolved and when you get back to the office, maybe you can cut through all that. Thank you. I will recognize myself and then mr. Meadows of north carolina. Does our committee have a full list of concerns or outstanding cases that you need more information on . Ms. Lerner if you would like it, i can get it to you. Mr. Chaffetz lets confirm we have a full list of your concerns. , we do expect the tsa to turn over all information that has been withheld from the osc and we expect that to be done by march 10, one week from friday. That information should be given to both the osc as well as the committee on oversight and government reform. If you are choosing to withhold making an you are election to withhold documents from the osc, but also withholding documents from congress. I am being Crystal Clear with you you do not withhold these documents from the Inspector General, being very selective in your application of attorneyclient privilege which we do not recognize. If you do not provide those are march 10, i will issue a subpoena and you will be on the clock. If you do not comply with the subpoena, you will be in contempt and we will pursue that. I am trying to be Crystal Clear on the process. You said the buck stops with you , we will call in the attorneys and you can blame it on homeland, but you are the acting director and that is a tough spot you take when your are on top of the 15. You confirm to the committee you will provide laws of the information that has been withheld from the osc. Not recognizing you have that right. You will provide that information to the osc, and this committee, also by march 10, correct . Ms. Gowadia we will start providing on a rolling basis mr. Comer no mr. Chaffetz no. How many people work for you . Ms. Gowadia 60,000. This may take time, i do not want to leave you with a fact that im trying to stonewall you. My people have already started working on production. I cannot promise mr. Chaffetz it is a log. You have tens of thousands of employees at your disposal. I am telling you, that is what this committee will ask you to do. We have been asking for this for a long time, it should be no surprise. You said you have a log and it should not be hard to provide it. Ms. Gowadia i did not say we had a log, i said moving forward we would provide one, you are asking me to go back to a number you do not want to hear, 50,000 pages to find 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 do not make the old lg full log available, we will start on a rolling basis which is something we do with the osc and with you. Mr. Chaffetz put anybody you need on top of that, prioritize that, we are here to protect the safety of the employees. That is what i expect from you. Ibd names of any other individuals at Homeland Security i need the names of any other individuals at Homeland Security who provide the privilege. By march 10. You have agreed to provide the discipline of mr. Colon and you can provide that by march 10 . Ms. Gowadia if the discipline has are ready taken place, i do not know. Mr. Chaffetz i thought you said he was disciplined . Ms. Gowadia i said in the process, i will give you an update. Mr. Chaffetz you are going to provide government advice regarding withholding information from ose, correct correct . Ect osc, ms. Gowadia i will work with the department to get you that it. Mr. Chaffetz lets recommend the gentlemanmr. Chaffetz from north carolina. I have had for five things going on. E things going on. Ms. Gowadia , thank you for the meeting yesterday, i want to thank counsel as well. I am a little confused. Yesterday we talked about a reset, we talked about Going Forward and really working this but my staff informed me and that is why i came back that we are again trying to insert an attorneyclient privilege and keep things from osc. I did not leave with that impression yesterday from our private meeting. Am i misinformed . Ms. Gowadia i apologize if i left you with the notion that i could do something without the departments guidance. I still have to follow Department Guidance, what i offered mr. Meadows are you saying the secretary of dhs concurs with that . I will call him. Ms. Gowadia i am not speaking for the secretary. Mr. Meadows i was very clear yesterday, in ways i was more blunt than i wanted to be. Acknowledged that to your counsel that was there and i thought yet that the agreements we had yesterday coming out of the meeting, it sounds like you are walking them back. Are you not . Ms. Gowadia i do not believe i am, you did not think it was appropriate. Mr. Meadows you agreed to give the documents to osc not redacted. Ms. Gowadia i did not agree to that. Mr. Meadows i should not i shouldve have a stenographer. Let me tell you i told you i would give you grace and i am willing to, to say that there has been a lot of mistakes made but what i will not do is have a went well andat have you, after you went back and talk to somebody, coming here today and suggest that it is not ok. Ms. Gowadia i sincerely apologize if i left you with the impression i could give away the attorneyclient privilege. Mr. Meadows who can . Ms. Gowadia it has to come through general counsel. Youmeadows i asked yesterday for a statute and you said there was not one. I ask you what rules and you said Department Guidance. I understand you do not have that written. Is that correct . Ms. Gowadia not to my knowledge. Mr. Meadows who gave you written guidance . Who told you that you have guidance . Ms. Gowadia the general counsel, the acting general counsel. Mr. Meadows the person i have had concerns with i expressed to you yesterday, gentle counsel for who . Ms. Gowadia for the department of Homeland Security. Mr. Meadows general counsel between yesterday and today ms. Gowadia not between yesterday and today. Going back to yesterday mr. Meadows when did you talk to the general counsel about this guidance . Ms. Gowadia well before our meeting yesterday which is why i am shocked mr. Meadows maybe i misunderstood you how can we believe the general guidance of verbal communications from your general counsel how can Congress Look at that . Do you not see a problem with that . Ms. Gowadia i do and that is why i am working with the department mr. Meadows letty tell you if you will comply, i do not recognize the attorneyclient privilege and you know that i do not. Ms. Gowadia that was clear yesterday. Mr. Meadows the chairman does not recognize it nor does the Ranking Member recognize it. All we want is to make sure that miss lerner can get her job done and not be stonewalled. I told you yesterday i was willing to have a reset. Todays testimony is very, very troubling. It sounds like, we had a nice meeting and then all of a sudden we are here today with entrenched rhetoric coming from the general counsel. Is that not it . No. Gowadia i appreciate the time to visit yesterday. I appreciate the time, it needs to be productive time. Ms. Gowadia absolutely, one of the promises i made yesterday is to reach out mr. Meadows you saying the things you redacted will not interfere with her investigation. That is your sworn testimony . Ms. Gowadia as part of my testament 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 use the qualifier, to the best of your knowledge. Ms. Gowadia after the meeting i asked my staff to go through emails and determine if it was factual and when they came back with two, at that moment, i said ,o them, from now on, policy is if you reject anything, you will provide the osc with the privilege log. Mr. Meadows has the osc ever disclosed anything not appropriate, to your knowledge . Ms. Gowadia not to my knowledge. Mr. Meadows why do you redacted redirect redirect redact it . Ms. Gowadia multiple parties in an ongoing case. Mr. Meadows why are you concerned . Let me tell you what, you are trying to cover up for something that may or may not have been done. I told you i would reset but if you will not reset and give her what she needs, we will look at this with the chairmans indulgence, we will look at this and asked for subpoenas and make sure we get the information. I will not be stonewalled. Ms. Gowadia it is not my intention 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 our certain attorneyclient privilege issues mr. Meadows i do not appreciate that. Ms. Gowadia i do and have to work with the department. Mr. Meadows should i call general kelly . Ms. Gowadia please do not do that. A shortows you have fuse because i cannot imagine general kelly would like to cover up anything. Ms. Gowadia you cannot imagine i would want to cover up anything. Mr. Meadows that is how it appears. Needs. S lerner what she mr. Chaffetz thank you. , if the Homeland Security guidance violates federal laws, which one will you follow . Ms. Gowadia federal law. What information is tsa not providing you . Nothing, completely cooperative. Mr. Chaffetz do you give everything to Homeland Securitys Inspector General . Ms. Gowadia yes. Mr. Chaffetz do you give everything to the osc . Ms. Gowadia everything but attorneyclient privilege. Mr. Chaffetz why is not that true with the Inspector General . Ms. Gowadia the guidance applies external to the department. Mr. Chaffetz external to the department . You are part of the United States government, correct . Ms. Gowadia we all are, i work for the american public. Mr. Chaffetz thats right, that is who is paying and we set up a statute that said he would abide by the law that allows the office of special counsel to dive into these issues. You do treat the Inspector General event than the osc . Ms. Gowadia in this instance, we do. Mr. Chaffetz do we have problems with that, miss lerner . Ms. Lerner we do get sensitive security information from tsa, we never had a problem getting that. We handle it appropriately and they can mark it as sensitive. I am confused about why they do not provide us with what they considered to be attorneyclient. We can handle that information the same way we handle the ssi information, if they want to mark something privilege, we will handle it in a confidential way and not release it. Mr. Chaffetz you have a solid reputation, you do not have to convince us. We set it up you could be the one to be the independent arbiter. Housewadia, is the white external to the department . Ms. Gowadia yes, they are, sir, is, if the next question do you share with the white house, i do not know the answer. Mr. Chaffetz the logic does not make sense which is comical. That is the problem. You are an outlier, you are unique. Ms. Gowadia the guidance applies not just to tsa. Mr. Chaffetz you are a very nice person. You have a host of issues you have to deal with, i think the guidance youre getting is wrong. If highlights federal law and is unacceptable and now has the full attention of this committee, i assure you, we will go to the ends of the earth, what we are trying to do is protect whistleblowers so they get a fair hearing. They cannot get a fair hearing if the osc only gets a portion of the documentation, even though the law says they get all the information and they are set up to do this and authorized by congress and work on the American People and we do appropriate money. Someone like more money. That is 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. You do have a cultural problem with the attorneys, both that tsa and Homeland Security. As was demonstrated by the mail. I am very curious to see what the discipline was for that sort about a dude approach and i assigned it wholly unacceptable, appreciateit everybodys here sharing testimony and we look forward to following it up. The committee stands adjourned. Which is responsible for its caption content and accuracy. Visit ncicap. Org] [captions Copyright National cable satellite corp. 2017] [captioning performed by the national captioning institute, next, washington journal live, then a look at u. S. Russia relations, and in the afternoon, a discussion on how the Trump Administration could affect the future of afghanistan. Coming up in half an hour, washington journal, newsmax media ceo on Donald Trumps presidency so far and the white house relationship with the media. Durkin National JournalHealth Care Correspondent on divisions within republican on repealing and replacing the Affordable Care act. Ceontidefamation League Jonathan greenblatt on the ongoing threats made against jewish communities and schools. Host good morning on this 30, 2017, Jeff Sessions has recused himself from any investigation into russia. He told fox news last night any other related investigations will be on a casebycase basis. While democrats are demanding the recusal, not satisfied, saying the attorney general should resign and any investigation into russia ties with the Trump Campaign and white house must be conducted by an independent investigation. We will spend the top of the program getting your take on that idea. Dialing