[House Report 115-268]
[From the U.S. Government Publishing Office]
115th Congress } { REPORT
HOUSE OF REPRESENTATIVES
1st Session } { 115-268
======================================================================
OSC ACCESS ACT
_______
July 28, 2017.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Gowdy, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
[To accompany H.R. 2195]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 2195) to amend title 5, United
States Code, to provide for access of the Special Counsel to
certain information, having considered the same, report
favorably thereon with amendments and recommend that the bill
as amended do pass.
CONTENTS
Page
Committee Statement and Views.................................... 2
Section-by-Section............................................... 11
Explanation of Amendments........................................ 11
Committee Consideration.......................................... 12
Roll Call Votes.................................................. 12
Application of Law to the Legislative Branch..................... 12
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 12
Statement of General Performance Goals and Objectives............ 12
Duplication of Federal Programs.................................. 12
Disclosure of Directed Rule Makings.............................. 12
Federal Advisory Committee Act................................... 12
Unfunded Mandates Statement...................................... 13
Earmark Identification........................................... 13
Committee Estimate............................................... 13
Budget Authority and Congressional Budget Office Cost Estimate... 13
Changes in Existing Law Made by the Bill, as Reported............ 14
The amendments are as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``OSC Access Act''.
SEC. 2. ADEQUATE ACCESS OF SPECIAL COUNSEL TO INFORMATION.
Section 1212(b) of title 5, United States Code, is amended by adding
at the end the following:
``(5)(A) Except as provided in subparagraph (B), the Special Counsel,
in carrying out this subchapter, is authorized to--
``(i) have timely access to all records, data, reports,
audits, reviews, documents, papers, recommendations, or other
material available to the applicable agency that relate to an
investigation, review, or inquiry conducted under--
``(I) section 1213, 1214, 1215, or 1216 of this
title; or
``(II) section 4324(a) of title 38;
``(ii) request from any agency the information or assistance
that may be necessary for the Special Counsel to carry out the
duties and responsibilities of the Special Counsel under this
subchapter; and
``(iii) require, during an investigation, review, or inquiry
of an agency, the agency to provide to the Special Counsel any
record or other information that relates to an investigation,
review, or inquiry conducted under--
``(I) section 1213, 1214, 1215, or 1216 of this
title; or
``(II) section 4324(a) of title 38.
``(B)(i) The authorization of the Special Counsel under subparagraph
(A) shall not apply with respect to any entity listed in section
2302(a)(2)(C)(ii) or (iii) unless the Special Counsel is investigating,
or otherwise carrying out activities relating to the enforcement of, an
action under subchapter III of chapter 73.
``(ii) The Attorney General or an Inspector General may withhold from
the Special Counsel material described in subparagraph (A) if--
``(I) disclosing the material could reasonably be expected to
interfere with a criminal investigation or prosecution that is
ongoing as of the date on which the Special Counsel submits a
request for the material, or the material may not be disclosed
pursuant to court order or has been filed under seal pursuant
to section 3730 of title 31; and
``(II) the Attorney General or the Inspector General, as
applicable, submits to the Special Counsel a written report
that describes--
``(aa) the material being withheld; and
``(bb) the reason that the material is being
withheld.
``(C)(i) A claim of common law privilege by an agency, or an officer
or employee of an agency, shall not prevent the Special Counsel from
obtaining any material described in subparagraph (A) with respect to
the agency.
``(ii) The submission of material described in subparagraph (A) by an
agency to the Special Counsel may not be deemed to waive any assertion
of privilege by the agency against a non-Federal entity or against an
individual in any other proceeding.
``(iii) With respect to any record or other information made
available to the Special Counsel by an agency under subparagraph (A),
the Special Counsel may only disclose the record or information for a
purpose that is in furtherance of any authority provided to the Special
Counsel in this subchapter.
``(6) The Special Counsel shall submit to the Committee on Homeland
Security and Governmental Affairs of the Senate, the Committee on
Oversight and Government Reform of the House of Representatives, and
each committee of Congress with jurisdiction over the applicable agency
a report regarding any case of contumacy or failure to comply with a
request submitted by the Special Counsel under paragraph (5)(A).''.
Amend the title so as to read:
A bill to amend title 5, United States Code, to provide for
access of the Special Counsel to certain information, and for
other purposes.
Committee Statement and Views
PURPOSE AND SUMMARY
H.R. 2195, the OSC Access Act, clarifies Congress's
longstanding intent that the U.S. Office of Special Counsel
(OSC) have access to all materials necessary for its
investigations and that granting such access does not waive
common law privileges in other contexts.
BACKGROUND AND NEED FOR LEGISLATION
In May 1977, President Jimmy Carter established the Federal
Personnel Management Project to fulfill his campaign promise of
federal personnel reform in the post-Watergate era.\1\ As a
result of the Project's work, on March 2, 1978, President
Carter transmitted to Congress a ``comprehensive program to
reform the Federal Civil Service system.'' The President's
message to Congress accompanying the transmittal stated:
---------------------------------------------------------------------------
\1\See Civ. Serv. Reform: Hearing before the H. Comm. on Post
Office & Civ. Serv., 95th Cong. (1978) (statement of Alan K. Campbell,
Chairman, U.S. Civ. Serv. Comm'n).
I . . . propose to create a Special Counsel to the
[Merit Systems Protection] Board, appointed by the
President and confirmed by the Senate, who will
investigate and prosecute political abuses and merit
system violations. This will help safeguard the rights
of Federal employees who ``blow the whistle'' on
violations of laws or regulations by other employees,
including their supervisors.\2\
---------------------------------------------------------------------------
\2\Message from the President (Mar. 2, 1978), included in H. Comm.
on Post Office & Civ. Serv., 96th Cong., Legislative History of the
Civil Service Reform Act of 1978 735 (Comm. Print 1979).
Congress moved swiftly to consider the President's
proposal, which was introduced in the House and the Senate as
the Civil Service Reform Act of 1978.\3\
---------------------------------------------------------------------------
\3\H.R. 11280, 95th Cong. (1978); S. 2640, 95th Cong. (1978).
Two months later, on May 23, 1978, the President
submitted to Congress ``Reorganization Plan No. 2 of
1978.''\4\ Under the then-established procedures for
Executive Branch reorganization, the plan would take
effect if neither the House nor the Senate disapproved
the plan after 60 days.\5\ The plan established within
the Executive Branch the Merit Systems Protection Board
(MSPB) and the Special Counsel.\6\ It delegated to the
Special Counsel the President's authority to
investigate merit system abuses, stating: ``The Special
Counsel may investigate, pursuant to 5 U.S.C. 1303,
allegations of personnel practices which are prohibited
by law or regulation.''\7\
---------------------------------------------------------------------------
\4\Reorganization Plan No. 2 of 1978, 43 Fed. Reg. 36037, 92 Stat.
3783 (1978).
\5\See S. Comm. on Governmental Affairs, Civil Service Reform Act
of 1978 2 n.1, 95th Cong. (1978) (S. Rep. No. 95-969).
\6\Reorganization Plan No. 2 of 1978 Pt. II, 43 Fed. Reg. 36037, 92
Stat. 3783, 3784 (1978).
\7\Reorganization Plan No. 2 of 1978 Sec. 204(c), 43 Fed. Reg.
36037, 92 Stat. 3783, 3785 (1978).
The Civil Service Reform Act of 1978 codified Congress's
support for the broad responsibility the President conferred
upon the Special Counsel to determine whether prohibited
personnel practices occurred. The new law retained the findings
of the initial proposal transmitted by the President to
Congress, which stated: ``It is the policy of the United States
that . . . the authority and power of the Special Counsel
should be increased so that the Special Counsel may investigate
allegations involving prohibited personnel practices and
reprisals against Federal employees for the lawful disclosure
of certain information. . . .''\8\ As the Senate Governmental
Affairs Committee's report accompanying the bill stated: ``For
the first time, and by statute, the Federal Government is given
the mandate--through the Special Counsel of the Merit Systems
Protection Board--to protect whistleblowers from improper
reprisals.''\9\ In the Act, Congress further ensured the
protection of whistleblowers by strengthening the underlying
law on prohibited personnel practices.
---------------------------------------------------------------------------
\8\Pub. L. No. 95-454 Sec. 3(4), 92 Stat. 1111, 1112 (1978); c.f.
H.R. 11280, 95th Cong. Sec. 3(3) (1978).
\9\S. Comm. on Governmental Affairs, Civil Service Reform Act of
1978, 95th Cong. (1978) (S. Rep. No. 95-969).
---------------------------------------------------------------------------
Consistent with the responsibility to determine on behalf
of the Executive Branch whether federal government supervisors
acted illegally, the Act also included the President's proposal
to give the Special Counsel authority to ``issue subpenas [sic]
requiring the attendance and testimony of witnesses and the
production of documentary or other evidence. . . .''\10\
Similarly, it proposed giving the Special Counsel authority to
``administer oaths, take or order the taking of depositions,
order responses to written interrogatories, examine witnesses,
and receive evidence.''\11\
---------------------------------------------------------------------------
\10\Pub. L. No. 95-454 Sec. 202(a), 92 Stat. 1111, 1123 (1978);
c.f. H.R. 11280, 95th Cong. Sec. 202(a) (1978).
\11\Id.
---------------------------------------------------------------------------
The Civil Service Reform Act of 1978, which adopted the
same structure the President established in the Reorganization
Plan No. 2 of 1978, codified the broad access the President
requested for the Special Counsel. The Whistleblower Protection
Act of 1989 separated the Office of Special Counsel (OSC) from
the MSPB, but it did not change the fundamental role or
authority of the office of Special Counsel established by the
President in 1978.\12\
---------------------------------------------------------------------------
\12\Whistleblower Prot. Act of 1989, Pub. L. No. 101-12 Sec. 3,
103 Stat. 16, 19 (1989). OSC had functionally separated from the MSPB
several years earlier.
---------------------------------------------------------------------------
OSC Access Challenges
On December 28, 1978, the President issued Executive Order
12107, establishing the Office of Special Counsel effective
January 1, 1979.\13\ The Executive Order also amended the Civil
Service Rules, adding a new ``Rule V--Regulations,
Investigation, Evaluation, and Enforcement.'' The rule, which
remains in effect today in Office of Personnel Management (OPM)
regulations, states in Section 5.4:
---------------------------------------------------------------------------
\13\Exec. Order No. 12107, 44 Fed. Reg. 1,055 (Jan. 3, 1979).
When required by . . . the Merit Systems Protection
Board, or the Special Counsel of the Merit Systems
Protection Board, or by authorized representatives of
these bodies, agencies shall make available to them, or
to their authorized representatives, employees to
testify in regard to matters inquired of under the
civil service laws, rules, and regulations, and records
pertinent to these matters. All such employees, and all
applicants or eligibles for positions covered by these
rules, shall give to the Office, the Merit Systems
Protection Board, the Special Counsel, or to their
authorized representatives, all information, testimony,
documents, and material in regard to the above matters,
the disclosure of which is not otherwise prohibited by
law or regulation.\14\
---------------------------------------------------------------------------
\14\Civ. Serv. Rule 5.4, 5 C.F.R. Sec. 5.4 (1979).
Since OSC's creation, it has used its investigatory
authority extensively. OSC investigations depend on the routine
issuance of document requests and the ability to interview
witnesses.\15\ As OSC exercises these functions, agencies
(including the Department of Justice) routinely disclose to OSC
information that common law privileges might protect in
litigation.
---------------------------------------------------------------------------
\15\Merit Sys. Prot. Bd., Office of Gov't Ethics, & Office of Spec.
Counsel Reauthorization: Hearing before the H. Subcomm. on Gov't
Operations, 114th Cong. (2015) (statement of Carolyn N. Lerner, Spec.
Counsel).
---------------------------------------------------------------------------
Nevertheless, OSC has occasionally run into access issues.
For example, on June 19, 2014, both Special Counsel Carolyn
Lerner and Environmental Protection Agency Inspector General
Arthur Elkins testified before the Committee on Oversight and
Government Reform that the U.S. Chemical Safety Board (CSB) was
withholding materials from OSC and the Inspector General based
on an assertion of attorney-client privilege.\16\ Then-Chairman
Darrell Issa told the head of the CSB:
---------------------------------------------------------------------------
\16\Whistleblower Reprisal and Mgmt. Failures at the U.S. Chem.
Safety Bd.: Hearing before the H. Comm. on Oversight & Gov't Reform,
113th Cong. 12-13, 22 (2014).
The claim of attorney-client privilege from a
Government agency is extremely limited, extremely
limited, and Government or Government-related documents
that in fact are generated under the work of the
Federal Government, paid for during time or with
resources of the Federal Government, are not, in the
ordinary course, allowed to become attorney-client
privilege[d].\17\
---------------------------------------------------------------------------
\17\Id. at 37 (statement of Darrell Issa, Chairman, H. Comm. on
Oversight & Gov't Reform).
---------------------------------------------------------------------------
Lerner expanded:
It is very rare for an agency to assert attorney-
client privilege to protect documents from the Office
of Special Counsel, another Federal agency. And for
context I can tell you that it is also very rare for
OSC to have to subpoena a subject official in order to
secure testimony. In the three years that I have been
head of the Office of Special Counsel, this is the
first time.
* * * * * * *
If an agency can assert attorney-client privilege to
protect the basis, for example, of removing someone, we
are not able to get a full picture and determine if
there was animus for whistleblowing, what the true
factors really were for taking an action against an
employee. If we ask why a decision was made and the
answer is I can't tell you because I asked my lawyer or
outside counsel about it, then that is just not very
helpful to us.\18\
---------------------------------------------------------------------------
\18\Id. at 55 (statement of Carolyn N. Lerner, Spec. Counsel).
At a December 16, 2015 hearing of the Committee's
Subcommittee on Government Operations, Special Counsel Carolyn
Lerner noted: ``While agencies typically comply with our . . .
requests, we have had some difficulty in our investigations
where agencies do not provide timely or complete responses or
claim common law privileges as a basis for withholding
documents.''\19\ Ms. Lerner further explained:
---------------------------------------------------------------------------
\19\Merit Sys. Prot. Bd., Office of Gov't Ethics, & Office of Spec.
Counsel Reauthorization: Hearing before the H. Subcomm. on Gov't
Operations, 114th Cong. (2015) (statement of Carolyn N. Lerner, Spec.
Counsel).
Congress has tasked OSC with determining the legality
of personnel actions taken against whistleblowers. Our
investigations typically assess whether an agency acted
for legitimate, non-retaliatory reasons, or whether
agency justifications are really a pretext for
retaliating against an employee. To make these
assessments, it is often necessary to review
communications between management officials and agency
counsel. In fact, these communications can demonstrate
that management officials acted responsibly, sought
legal advice, and had a legitimate basis for
disciplining a purported whistleblower.\20\
---------------------------------------------------------------------------
\20\Id.
Lerner noted that when agencies withhold such information
from OSC, asserting the information is privileged, ``OSC must
engage in prolonged disputes over access to information or
attempt to complete our investigation without the benefit of
highly relevant communications. This undermines the
effectiveness of the whistleblower law and prolongs OSC
investigations.''\21\
---------------------------------------------------------------------------
\21\Id.
---------------------------------------------------------------------------
Some agencies have justified their obstruction by abusing
the phrase in OPM Civil Service Rule 5.4, ``the disclosure of
which is not otherwise prohibited by law or regulation.''\22\
However, Congress has passed no law authorizing the withholding
of information from OSC, nor is the Committee aware of any
regulation that purports to do so.
---------------------------------------------------------------------------
\22\Civ. Serv. Rule 5.4, 5 C.F.R. Sec. 5.4 (1979).
---------------------------------------------------------------------------
Accordingly, when Representative Rod Blum (R-IA) introduced
a bill, H.R. 4639, on February 26, 2016, to reauthorize OSC, it
included a section clarifying OSC's access rights. The
Committee considered the legislation on March 1, 2016, and
ordered it favorably reported. The Committee report stated:
Notwithstanding the unambiguous language of both
provisions, OSC has historically faced a range of
obstacles from agencies, including nonresponses,
incomplete responses, untimely responses, and refusals
to comply. In particular, refusals to comply have
arisen from agencies stretching the interpretation of
``not otherwise prohibited by law or regulation'' to
justify invoking common law privileges, such as
attorney-client privilege, to prevent OSC from
obtaining access to information. For example, the
Committee on Oversight and Government Reform has heard
concerns from the current Special Counsel regarding
blanket assertions of attorney-client privilege by the
Chemical Safety Board.
While the Committee does not believe that legislative
clarification should be necessary to make clear that
OSC's access to information overrides internal agency
regulations and common law privileges, this bill is
intended to settle once and for all that in carrying
out its work, OSC is authorized to have access to any
information from agencies under its jurisdiction. H.R.
4639 makes clear that OSC is authorized to have access
to any record or other information of any agency under
its jurisdiction in investigating allegations of
prohibited personnel practices or Hatch Act
violations.\23\
---------------------------------------------------------------------------
\23\H. Comm. on Oversight & Gov't Reform, Thoroughly Investigating
Retaliation Against Whistleblowers Act 5, 114th Cong. (2016) (H. Rep.
No. 114-521).
The House of Representatives passed H.R. 4639 on June 21,
2016.
Meanwhile, on May 23, 2016, Senate Homeland Security and
Governmental Affairs Committee (HSGAC) Chairman Ron Johnson (R-
WI) introduced a Senate bill, S. 2968, to reauthorize OSC. The
Senate bill also included language clarifying that ``a Federal
agency cannot withhold any information from the OSC, an
independent Federal agency, on the basis of common law
privilege and providing such information does not waive any
assertion of privilege by the Federal agency in any other
proceeding.''\24\ On May 25, 2016, the Senate Committee ordered
the legislation favorably reported. The next day, Chairman
Johnson introduced a legislation package, S. 3011, which
included the language from S. 2968.\25\ However, given the
limited legislative calendar in 2016, the Senate did not take
up S. 2968, S. 3011, or H.R. 4639.
---------------------------------------------------------------------------
\24\S. Comm. on Homeland Sec. & Governmental Affairs, Office of
Special Counsel Reauthorization Act 9, 114th Cong. (2016) (S. Rep. No.
114-360).
\25\Bolster Accountability to Drive Government Efficiency and
Reform Washington Act of 2016, S. 3011, 114th Cong. (2016).
---------------------------------------------------------------------------
Almost immediately at the commencement of the 115th
Congress, Representative Blum reintroduced and the House passed
H.R. 69, reauthorizing OSC. The bill once again contained
language clarifying Congress's longstanding intent regarding
OSC's right of access. Nevertheless, OSC reported to the
Committee that agency attorneys at one agency pointed to the
introduction of OSC access language in legislation as evidence
that OSC did not currently have the authority to access
privileged materials. OSC further reported that those attorneys
had apparently drawn a negative inference from the Senate's
failure to pass the access provision, concluding Congress did
not in fact support OSC having such authority.
This interpretation of congressional intent is wholly
inaccurate. In fact, the opposite is true--the Committee
believes OSC already has the legal authority to access this
information under existing law, regardless of the enactment of
this bill, H.R. 69 (115th), H.R. 4639 (114th), S. 2968 (114th),
S. 3011 (114th), or similar laws. The proposed legislation
provides what the Committee views as a superfluous
clarification necessitated by some agencies' bizarre
interpretation of OSC's access under current law. Indeed, the
only reasonable interpretation of a plain reading of the
existing law is that OSC is entitled to access notwithstanding
common law privileges that might apply in other circumstances.
The Committee expressly rejects any agency position that
the introduction of a bill clarifying congressional intent
gives rise to a negative inference regarding the meaning of the
statute to be amended. Such an interpretation would lead to the
absurd result that an agency could invalidate a clear and
unambiguous statute by imputing ambiguity to it, waiting for a
Member of Congress to introduce a bill to clarify congressional
intent, and then pointing to the introduction of the bill as
vindication of the agency's position until it is enacted. Such
an interpretation ignores the equally likely possibility that
Congress did not enact the law because the clarification was
not necessary--that Congress determined existing law was
sufficiently clear on its face.
OSC Access Challenges Continue: Transportation Security Administration
Denies Access
The Transportation Security Administration (TSA) is one
agency that has resisted providing full access to OSC. The
Whistleblower Protection Enhancement Act of 2012 extended
statutory whistleblower protections to all TSA employees.\26\
In the following four years, OSC received more than 350
whistleblower retaliation cases from TSA.\27\ Meanwhile, on
January 21, 2015, the Supreme Court held in the whistleblower
case of Federal Air Marshal Robert MacLean that the statute
authorizing TSA's designation of Sensitive Security Information
did not prohibit disclosure of such information, and that
agency regulations prohibiting such disclosure thus did not
override the Whistleblower Protection Act of 1989.\28\
---------------------------------------------------------------------------
\26\Whistleblower Prot. Enhancement Act of 2012, Pub. L. No. 112-
199 Sec. 109, 126 Stat. 1465, 1470 (2012).
\27\Transparency at TSA: Hearing before the H. Comm. on Oversight &
Gov't Reform, 115th Cong. (2017) (statement of Carolyn N. Lerner, Spec.
Counsel).
\28\Dep't of Homeland Sec. v. MacLean, 135 S. Ct. 913, 921 (2015).
---------------------------------------------------------------------------
In the fall of 2015, the Committee began an extensive
investigation of allegations that TSA protected senior agency
officials from discipline while allowing a culture of
retaliation against whistleblowers to fester.\29\ TSA's Office
of Chief Counsel was central to the alleged double standard.
Whistleblowers alleged TSA's approach was typified by a
December 2014 communication Assistant Chief Counsel Steven
Colon sent others within the Office of Chief Counsel indicating
he was ``done being conciliatory with OSC'' and declaring:
``They want war, they got one.''\30\
---------------------------------------------------------------------------
\29\See, e.g., letter from the Hon. Jason Chaffetz, Chairman, H.
Comm. on Oversight & Gov't Reform, to the Hon. Peter V. Neffenger,
Adm'r, Transp. Sec. Admin. (Nov. 10, 2015); letter from the Hon. Jason
Chaffetz, Chairman, H. Comm. on Oversight & Gov't Reform, to the Hon.
Peter V. Neffenger, Adm'r, Transp. Sec. Admin. (Dec. 3, 2015); letter
from the Hon. Jason Chaffetz, Chairman, H. Comm. on Oversight & Gov't
Reform, to the Hon. Peter V. Neffenger, Adm'r, Transp. Sec. Admin.
(Jan. 7, 2016); letter from the Hon. Jason Chaffetz, Chairman, H. Comm.
on Oversight & Gov't Reform, to the Hon. Peter V. Neffenger, Adm'r,
Transp. Sec. Admin. (Feb. 2, 2016); letter from the Hon. Jason
Chaffetz, Chairman, H. Comm. on Oversight & Gov't Reform, to the Hon.
Peter V. Neffenger, Adm'r, Transp. Sec. Admin. (Feb. 19, 2016); letter
from the Hon. Jason Chaffetz, Chairman, H. Comm. on Oversight & Gov't
Reform, the Hon. Elijah E. Cummings, Ranking Mem., H. Comm. on
Oversight & Gov't Reform, the Hon. John L. Mica, Chairman, H. Subcomm.
on Transp. & Public Assets, and the Hon. Tammy Duckworth, Ranking Mem.,
H. Subcomm. on Transp. & Public Assets, to the Hon. Peter V. Neffenger,
Adm'r, Transp. Sec. Admin. (Mar. 15, 2016); letter from the Hon. Jason
Chaffetz, Chairman, H. Comm. on Oversight & Gov't Reform, and the Hon.
Elijah E. Cummings, Ranking Mem., H. Comm. on Oversight & Gov't Reform,
to the Hon. Peter V. Neffenger, Adm'r, Transp. Sec. Admin. (Apr. 26,
2016); letter from the Hon. Jason Chaffetz, Chairman, H. Comm. on
Oversight & Gov't Reform, and the Hon. Elijah E. Cummings, Ranking
Mem., H. Comm. on Oversight & Gov't Reform, to the Hon. Peter V.
Neffenger, Adm'r, Transp. Sec. Admin. (May 12, 2016); letter from the
Hon. Jason Chaffetz, Chairman, H. Comm. on Oversight & Gov't Reform,
the Hon. Elijah E. Cummings, Ranking Mem., H. Comm. on Oversight &
Gov't Reform, the Hon. John L. Mica, Chairman, H. Subcomm. on Transp. &
Public Assets, the Hon. Tammy Duckworth, Ranking Mem., H. Subcomm. on
Transp. & Public Assets, the Hon. Mark Meadows, Chairman, H. Subcomm.
on Gov't Operations, the Hon. Gerald E. Connolly, Ranking Mem., H.
Subcomm. on Gov't Operations, and the Hon. Charles E. Grassley,
Chairman, S. Comm. on the Judiciary, to the Hon. Peter V. Neffenger,
Adm'r, Transp. Sec. Admin. (Aug. 12, 2016).
\30\Meeting invitation from Steven Colon to Steven Lewengrub, Paula
Billingsley, and Jeffrey Velasco, Transp. Sec. Admin. (Dec. 15, 2014
meeting).
---------------------------------------------------------------------------
On April 27, 2016, the Committee held a public hearing with
three TSA whistleblowers.\31\ They described a ``crisis of
leadership'' which fostered ``low morale, a lack of trust, and
field leaders who are fearful to speak out, and for good
reason.''\32\ According to one witness, the problems resulted
in ``a culture of misconduct, retaliation, lack of trust,
cover-ups, and the refusal to hold senior leaders accountable
for poor judgment and malfeasance.''\33\ Another witness
concluded: ``In your role as an oversight committee for TSA,
you should be gravely alarmed and concerned with these issues
because TSA employees are less likely to report operational
security or threat-relevant issues out of fear of
retaliation.''\34\
---------------------------------------------------------------------------
\31\Examining Management Practices and Misconduct at TSA: Part I:
Hearing Before the H. Comm. on Oversight & Gov't Reform, 114th Cong.
(Apr. 27, 2016).
\32\Id. at 15-16 (statement of Jason Brainard, Fed. Sec. Dir.,
Kansas, Office of Sec. Operations, Transp. Sec. Admin.).
\33\Id. at 30-31 (statement of Andrew J. Rhoades, Asst. Fed. Sec.
Dir. for Mission Support, Minneapolis-St. Paul Int'l Airport, Office of
Sec. Operations, Transp. Sec. Admin.).
\34\Id. at 27 (statement of Mark Livingston, Program Manager,
Office of the Chief Risk Officer, Trans. Sec. Admin.).
---------------------------------------------------------------------------
Two weeks later, on May 12, 2016, TSA Administrator Peter
Neffenger testified before the Committee on the issues raised
by the whistleblowers.\35\ He stated of one of the
whistleblowers at the April 27 hearing, ``We're supporting
[him] in his complaint, which stands before the Office of
Special Counsel right now,'' while indicating another
whistleblower's case was ``still undergoing review'' with
OSC.\36\ He acknowledged the importance of OSC's review of
TSA's management practices, stating: ``I will await the Office
of Special Counsel's review. I think it's important that we
look for an independent review of that to determine whether or
not there was improper use there.''\37\ When Representative
Elijah Cummings (D-MD), the ranking minority member of the
Committee, subsequently asked Administrator Neffenger how TSA
dealt with retaliation, Neffenger testified: ``I'm very
interested in the results of the Office of Special Counsel
investigation. . . . Depending upon those findings, I will take
immediate action against that.''\38\
---------------------------------------------------------------------------
\35\Examining Management Practices and Misconduct at TSA: Part II:
Hearing Before the H. Comm. on Oversight & Gov't Reform, 114th Cong.
(May 12, 2016).
\36\Id. at 59, 128 (statement of Peter V. Neffenger, Adm'r, Transp.
Sec. Admin.).
\37\Id. at 59 (statement of Peter V. Neffenger, Adm'r, Transp. Sec.
Admin.).
\38\Id. at 67 (statement of Peter V. Neffenger, Adm'r, Transp. Sec.
Admin.).
---------------------------------------------------------------------------
Yet after claiming it would rely on OSC's role as an
objective independent entity and make disciplinary decisions
based on OSC's findings, TSA has prevented OSC from making an
objective determination regarding whistleblower retaliation in
particular cases. TSA withheld relevant information, claiming
it was protected by attorney-client privilege from disclosure
to OSC. When the Committee held a hearing on this issue on
March 2, 2017--nearly a year after the Committee's hearing with
TSA whistleblowers--access issues had prevented OSC from
concluding any of its investigations of alleged retaliation at
TSA.\39\ At that hearing, Special Counsel Lerner testified that
in one set of cases, ``[i]t took TSA nearly five months after
the requested deadline to complete its production of documents.
TSA has stated that its privilege review accounts for much of
the delay.''\40\
---------------------------------------------------------------------------
\39\Transparency at TSA: Hearing Before the H. Comm. on Oversight &
Gov't Reform, 115th Cong. (Mar. 2, 2017).
\40\Id. (statement of Carolyn N. Lerner, Spec. Counsel).
---------------------------------------------------------------------------
Lerner continued:
TSA appears to be withholding information directly
related to the decision-making process for the
personnel actions it took against the complainants.
Understanding the motivation behind these actions is
essential to OSC's investigation. OSC requires access
to all information relevant to potentially unlawful
personnel practices, even if that information might be
privileged in other contexts. When TSA refuses to
disclose why it takes an action, it is impossible for
OSC to investigate whether there was retaliation.
Additionally, in the two cases for which TSA has
completed its document production, TSA stated it was
unable to provide a privilege log describing the
information withheld. The lack of a privilege log is
particularly problematic because OSC has concerns that
TSA may be withholding information more extensively
than even a robust attorney-client privilege would
allow. Without documentation of the information
withheld--a basic requirement whenever the attorney-
client privilege is asserted--it is difficult to
evaluate the extent to which this is true.\41\
---------------------------------------------------------------------------
\41\Id.
---------------------------------------------------------------------------
Need for Clarifying Legislation on OSC Access
The purpose of the attorney-client privilege is to
encourage ``full and frank communication between attorneys and
their clients and thereby promote broader public interests in
the observance of law and the administration of justice.''\42\
The privilege has significantly different application in a
government context, when the client is not a private
individual. Federal circuits have recognized the need for
``particularized rules . . . where one agency of government
claims the privilege in resisting a demand for information by
another''\43\ and that some ```considerations' counsel against
`expansion of the privilege to all governmental entities' in
all cases.''\44\ This is particularly the case where a
governmental agency is investigating potential wrongdoing.
---------------------------------------------------------------------------
\42\Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
\43\In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 916 (8th
Cir. 1997) (quoting Restatement (Third) of the Law Governing Lawyers
Sec. 124 cmt. b).
\44\In re Lindsey (Grand Jury Testimony), 158 F.3d 1263, 1272 (D.C.
Cir. 1998) (quoting 24 Charles Alan Wright & Kenneth W. Graham, Jr.,
Federal Practice and Procedure Sec. 5475, at 125 (1986)). Indeed, in
the criminal context federal circuits have denied government attorneys
use of the attorney-client privilege to withhold information from other
government entities conducting investigations. In re Grand Jury
Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997), cert. denied sub.
nom. Office of the President v. Office of the Independent Counsel, 521
U.S. 1105 (1997), 158 F.3d 1263 (D.C. Cir. 1998), cert. denied 525 U.S.
996 (1998), aff'g In re Grand Jury Proceedings, 5 F.Supp.2d 21, 39
(D.D.C. 1998).
---------------------------------------------------------------------------
Here, as Special Counsel Lerner noted:
Neither OSC's governing statutes nor applicable OPM
regulations authorize an agency to withhold information
from OSC based on an assertion of attorney-client
privilege by a government attorney acting on behalf of
a government agency. And no court has ever ruled that
the attorney-client privilege can be asserted during
intra-governmental administrative investigations.\45\
---------------------------------------------------------------------------
\45\Transparency at TSA: Hearing Before the H. Comm. on Oversight &
Gov't Reform, 115th Cong. (Mar. 2, 2017) (statement of Carolyn N.
Lerner, Spec. Counsel).
Similarly, no MSPB or federal circuit case has ever held
that disclosure to OSC in the context of its investigative
function constitutes a waiver of attorney-client privileged
material. The Committee finds that it is inconsistent with
OSC's broad investigatory authority (as established by the
President and Congress in 1978) for agencies to assert the
governmental attorney-client privilege against OSC.
The Committee has advanced this legislation to clarify this
access issue. Nevertheless, the Committee also believes OSC's
access without establishing an agency waiver should be
sufficiently clear from the existing record, regardless of
whether this or any other legislation is passed to clarify the
issue.
LEGISLATIVE HISTORY
On April 27, 2017, Representative Rod Blum (R-IA)
introduced H.R. 2195, the OSC Access Act, with then-Chairman
Jason Chaffetz (R-UT), Ranking Member Elijah Cummings (D-MD),
and Representatives Mike Coffman (R-CO), Kathleen Rice (D-NY),
and Jackie Speier (D-CA). H.R. 2195 was referred to the
Committee on Oversight and Government Reform. The Committee
considered H.R. 2195 at a business meeting on May 2, 2017 and
ordered the bill favorably reported, with an amendment in the
nature of a substitute, by voice vote.
Section-by-Section
Section 1. Short title
This section names the bill the ``OSC Access Act.''
Section 2. Adequate access of Special Counsel to information
The bill amends section 1212(b) of title 5, United States
Code, by adding a section (5) regarding access to documents and
materials.
The new section (5)(A) includes language restating
provisions of existing law that afford the Office of Special
Counsel (OSC) timely access to all documents and materials that
relate to its investigations.
The new section (5)(B) creates an exception for the
Attorney General or an Inspector General to withhold material
if disclosure could reasonably be expected to interfere with an
ongoing criminal investigation or prosecution. In such
circumstances, the Attorney General or an Inspector General
must submit a written report to OSC of the material and the
reason for withholding the material.
The new section (5)(C) makes the superfluous clarification
that a claim of common law privilege shall not prevent OSC from
obtaining any material, and production to OSC does not waive
any assertion of privilege against a non-federal entity or
individual in any other proceeding.
The bill also adds a section (6) to section 1212(b) of
title 5, United States Code, requiring that in cases of
agencies failing to comply, OSC shall submit a report to the
House Committee on Oversight and Government Reform, the Senate
Committee on Homeland Security and Governmental Affairs, and
each committee with jurisdiction over the applicable agency.
Explanation of Amendments
During Full Committee consideration of the bill,
Representative Blum offered an amendment in the nature of a
substitute which added a clause to section (5)(B) allowing the
Attorney General or an Inspector General to also withhold
material if it may not be disclosed pursuant to court order or
has been filed under seal pursuant to the False Claims Act. The
Blum amendment was adopted by voice vote.
Committee Consideration
On May 2, 2017, the Committee met in open session and
ordered reported favorably the bill, H.R. 2195, as amended, by
voice vote, a quorum being present.
Roll Call Votes
No roll call votes were requested or conducted during Full
Committee consideration of H.R. 2195.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill clarifies the authorities of OSC. As such, this bill
does not relate to employment or access to public services and
accommodations.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goal or objective of this bill is to clarify the authorities of
OSC.
Duplication of Federal Programs
No provision of this bill establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that enacting this bill does not
direct the completion of any specific rule makings within the
meaning of section 551 or title 5, United States Code.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of Section 5(b) of the appendix to title 5,
United States Code.
Unfunded Mandates Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement as to
whether the provisions of the reported include unfunded
mandates. In compliance with this requirement, the Committee
has included below a letter received from the Congressional
Budget Office.
Earmark Identification
This bill does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI.
Committee Estimate
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
this bill. However, clause 3(d)(2)(B) of that rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974, which the Committee has included below.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for this bill from the Director of
Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 22, 2017.
Hon. Jason Chaffetz,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2195, the OSC
Access Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Keith Hall, Director.
Enclosure.
H.R. 2195--OSC Access Act
CBO estimates that enacting H.R. 2195 would have no effect
on the federal budget. The legislation would amend federal law
to clarify that the Office of Special Counsel (OSC) has the
authority to obtain all of the documents it needs for an
investigation, including those involving alleged retaliation
against whistleblowers. According to OSC, this legislation
would codify existing agency policy. The primary mission of OSC
is to safeguard federal employees from prohibited personnel
practices.
Enacting the bill would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply. CBO
estimates that enacting H.R. 2195 would not increase direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2028.
H.R. 2195 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was approved by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART II--CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES
* * * * * * *
CHAPTER 12--MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL COUNSEL,
AND EMPLOYEE RIGHT OF ACTION
* * * * * * *
SUBCHAPTER II--OFFICE OF SPECIAL COUNSEL
* * * * * * *
Sec. 1212. Powers and functions of the Office of Special Counsel
(a) The Office of Special Counsel shall--
(1) in accordance with section 1214(a) and other
applicable provisions of this subchapter, protect
employees, former employees, and applicants for
employment from prohibited personnel practices;
(2) receive and investigate allegations of prohibited
personnel practices, and, where appropriate--
(A) bring petitions for stays, and petitions
for corrective action, under section 1214; and
(B) file a complaint or make recommendations
for disciplinary action under section 1215;
(3) receive, review, and, where appropriate, forward
to the Attorney General or an agency head under section
1213, disclosures of violations of any law, rule, or
regulation, or gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and
specific danger to public health or safety;
(4) review rules and regulations issued by the
Director of the Office of Personnel Management in
carrying out functions under section 1103 and, where
the Special Counsel finds that any such rule or
regulation would, on its face or as implemented,
require the commission of a prohibited personnel
practice, file a written complaint with the Board; and
(5) investigate and, where appropriate, bring actions
concerning allegations of violations of other laws
within the jurisdiction of the Office of Special
Counsel (as referred to in section 1216).
(b)(1) The Special Counsel and any employee of the Office of
Special Counsel designated by the Special Counsel may
administer oaths, examine witnesses, take depositions, and
receive evidence.
(2) The Special Counsel may--
(A) issue subpoenas; and
(B) order the taking of depositions and order
responses to written interrogatories;
in the same manner as provided under section 1204.
(3)(A) In the case of contumacy or failure to obey a subpoena
issued under paragraph (2)(A), the Special Counsel may apply to
the Merit Systems Protection Board to enforce the subpoena in
court pursuant to section 1204(c).
(B) A subpoena under paragraph (2)(A) may, in the case of any
individual outside the territorial jurisdiction of any court of
the United States, be served in the manner referred to in
subsection (d) of section 1204, and the United States District
Court for the District of Columbia may, with respect to any
such individual, compel compliance in accordance with such
subsection.
(4) Witnesses (whether appearing voluntarily or under
subpoena) shall be paid the same fee and mileage allowances
which are paid subpoenaed witnesses in the courts of the United
States.
(5)(A) Except as provided in subparagraph (B), the Special
Counsel, in carrying out this subchapter, is authorized to--
(i) have timely access to all records, data, reports,
audits, reviews, documents, papers, recommendations, or
other material available to the applicable agency that
relate to an investigation, review, or inquiry
conducted under--
(I) section 1213, 1214, 1215, or 1216 of this
title; or
(II) section 4324(a) of title 38;
(ii) request from any agency the information or
assistance that may be necessary for the Special
Counsel to carry out the duties and responsibilities of
the Special Counsel under this subchapter; and
(iii) require, during an investigation, review, or
inquiry of an agency, the agency to provide to the
Special Counsel any record or other information that
relates to an investigation, review, or inquiry
conducted under--
(I) section 1213, 1214, 1215, or 1216 of this
title; or
(II) section 4324(a) of title 38.
(B)(i) The authorization of the Special Counsel under
subparagraph (A) shall not apply with respect to any entity
listed in section 2302(a)(2)(C)(ii) or (iii) unless the Special
Counsel is investigating, or otherwise carrying out activities
relating to the enforcement of, an action under subchapter III
of chapter 73.
(ii) The Attorney General or an Inspector General may
withhold from the Special Counsel material described in
subparagraph (A) if--
(I) disclosing the material could reasonably be
expected to interfere with a criminal investigation or
prosecution that is ongoing as of the date on which the
Special Counsel submits a request for the material, or
the material may not be disclosed pursuant to court
order or has been filed under seal pursuant to section
3730 of title 31; and
(II) the Attorney General or the Inspector General,
as applicable, submits to the Special Counsel a written
report that describes--
(aa) the material being withheld; and
(bb) the reason that the material is being
withheld.
(C)(i) A claim of common law privilege by an agency, or an
officer or employee of an agency, shall not prevent the Special
Counsel from obtaining any material described in subparagraph
(A) with respect to the agency.
(ii) The submission of material described in subparagraph (A)
by an agency to the Special Counsel may not be deemed to waive
any assertion of privilege by the agency against a non-Federal
entity or against an individual in any other proceeding.
(iii) With respect to any record or other information made
available to the Special Counsel by an agency under
subparagraph (A), the Special Counsel may only disclose the
record or information for a purpose that is in furtherance of
any authority provided to the Special Counsel in this
subchapter.
(6) The Special Counsel shall submit to the Committee on
Homeland Security and Governmental Affairs of the Senate, the
Committee on Oversight and Government Reform of the House of
Representatives, and each committee of Congress with
jurisdiction over the applicable agency a report regarding any
case of contumacy or failure to comply with a request submitted
by the Special Counsel under paragraph (5)(A).
(c)(1) Except as provided in paragraph (2), the Special
Counsel may as a matter of right intervene or otherwise
participate in any proceeding before the Merit Systems
Protection Board, except that the Special Counsel shall comply
with the rules of the Board.
(2) The Special Counsel may not intervene in an action
brought by an individual under section 1221, or in an appeal
brought by an individual under section 7701, without the
consent of such individual.
(d)(1) The Special Counsel may appoint the legal,
administrative, and support personnel necessary to perform the
functions of the Special Counsel.
(2) Any appointment made under this subsection shall be made
in accordance with the provisions of this title, except that
such appointment shall not be subject to the approval or
supervision of the Office of Personnel Management or the
Executive Office of the President (other than approval required
under section 3324 or subchapter VIII of chapter 33).
(e) The Special Counsel may prescribe such regulations as may
be necessary to perform the functions of the Special Counsel.
Such regulations shall be published in the Federal Register.
(f) The Special Counsel may not issue any advisory opinion
concerning any law, rule, or regulation (other than an advisory
opinion concerning chapter 15 or subchapter III of chapter 73).
(g)(1) The Special Counsel may not respond to any inquiry or
disclose any information from or about any person making an
allegation under section 1214(a), except in accordance with the
provisions of section 552a of title 5, United States Code, or
as required by any other applicable Federal law.
(2) Notwithstanding the exception under paragraph (1), the
Special Counsel may not respond to any inquiry concerning an
evaluation of the work performance, ability, aptitude, general
qualifications, character, loyalty, or suitability for any
personnel action of any person described in paragraph (1)--
(A) unless the consent of the individual as to whom
the information pertains is obtained in advance; or
(B) except upon request of an agency which requires
such information in order to make a determination
concerning an individual's having access to the
information unauthorized disclosure of which could be
expected to cause exceptionally grave damage to the
national security.
(h)(1) The Special Counsel is authorized to appear as amicus
curiae in any action brought in a court of the United States
related to section 2302(b) (8) or (9), or as otherwise
authorized by law. In any such action, the Special Counsel is
authorized to present the views of the Special Counsel with
respect to compliance with section 2302(b) (8) or (9) and the
impact court decisions would have on the enforcement of such
provisions of law.
(2) A court of the United States shall grant the application
of the Special Counsel to appear in any such action for the
purposes described under subsection (a).
* * * * * * *
[all]