Rep. Jason Chaffetz, R-Utah, demanded TSA departmental guidance on attorney-client privilege by March 10.

Rep. Jason Chaffetz, R-Utah, demanded TSA departmental guidance on attorney-client privilege by March 10. Rick Bowmer/AP

TSA Pressured to Cooperate With Special Counsel Document Demands

DHS policy on invoking attorney-client privilege attacked at House hearing.

In an example of the limits of having acting agency heads during a transition, the Transportation Security Administration on Wednesday put up little defense against attacks by lawmakers and other federal officials for its policy of resisting certain demands for documents from Office of Special Counsel investigators.

At a contentious House oversight hearing on TSA’s high numbers of whistleblower complaints, acting Administrator Huban Gowadia struggled to explain why agency lawyers had either withheld documents or submitted heavily redacted versions to OSC investigators seeking to determine the validity of employee complaints of retaliation by supervisors for disclosing potentially improper activities.

Whistleblower retaliation can come in the form of demotions or involuntary relocations.

“TSA strives to be transparent” but must balance that goal against “the responsibility to prevent information from falling into the wrong hands,” Gowadia said when shown an email in which nearly all information, including date, sender and recipient, was redacted. While agreeing that OSC “should have access to all it needs,” the key word is “appropriate” information, she stressed, speculating that such decisions are made on a “case by case” basis and might involve a client asking for an attorney’s advice.

Invoking the attorney-client privilege to withhold information is based on Homeland Security Department guidance, she said. “TSA is not an independent agency,” she noted, though she said she has raised the issue with TSA General Counsel Francine Kerner.

That wasn’t good enough for Rep. Jason Chaffetz, R-Utah, chairman of the House Oversight and Government Reform Committee, who demanded that Gowadia give the committee all departmental guidance on the issue. “There’s the law, there’s department guidance. What percentage is all?” he asked mockingly, threatening a subpoena if the acting TSA chief did not turn over “100 percent” of departmental guidance on attorney-client privilege by March 10.

“Since 2012, the OSC received approximately 243 cases from TSA employees alleging retaliation for blowing the whistle,” Chaffetz said in starting the hearing. “To have 243 people say that there's retaliation is a number that is a flashing red light and scares us.”

TSA Chief Counsel Kerner, Chaffetz continued, since the agency’s inception in 2001 has not explained the reason for attorney-client privilege, once saying, "TSA has no legal obligation to turn over documents to the OSC."

Ranking Member Rep. Elijah Cummings, D-Md., was equally tough, citing a recent interview his staff did with retired TSA Deputy Administrator Mark Hatfield. “TSA employees lack some of the most basic safeguards to protect them against retaliation when they highlight security concerns,” Hatfield had said. He described “an agency where—in the absence of normal federal employee safeguards—a culture of retribution and arbitrary personnel actions evolved that made employees reluctant to raise security concerns,” Cummings said.

Further criticism of the agency charged with preventing terrorist attacks on travelers came from John Roth, DHS inspector general. Though TSA’s 60,000 employees have “the most difficult job in DHS,” he said, the agency “has a history of taking an aggressive approach to applying redactions, particularly with respect to a category of information known as Sensitive Security Information.”

In one recent case, TSA redacted information that was already public, Roth noted, and sometimes seems to be avoiding public discussion of unpleasant issues.

Attorney-client privilege, however, doesn’t prevent the IG from getting documents because his staff is in the same department, Roth said, but TSA’s culture can have a “chilling effect on whistleblowers.”

“We all work for the same government,” argued Special Counsel Carolyn Lerner, calling TSA “an outlier” among agencies in its degree of cooperation in turning over documents. “There is no basis for a federal agency to assert [attorney-client privilege] during an OSC investigation,” she said, saying the privilege is relevant during litigation as a means for hastening negotiations.

“TSA appears to be withholding information directly related to the decision-making process for the personnel actions it took against the complainants,” Lerner testified. “Understanding the motivation behind these actions is essential to OSC’s investigation.”

Additionally, the delays caused by TSA attorneys are backing up the workflow of her overstretched staff examiners and “devastating” the complainants, she said.

Gowadia, who agreed to deliver DHS guidance on use of attorney-client privilege to the committee, said TSA has upgraded its annual training on the proper marking of SSI and has discontinued past practices of “unilateral” geographic reassignments. “We have zero tolerance for prohibited personnel practices,” she said, noting that reassignments now need more levels of approval and are done “only for national security.”

Present at the hearing was air marshal Robert MacLean, whose name is on a Supreme Court case in which he challenged his dismissal for having disclosed to the news media safety lapse information that his superiors classified as SSI. MacLean’s case continues as he complains that his duties have not been fully restored since his court victory.

“The hearing was proof that Chief Counsel Francine Kerner and her most trusted assistant, Steven Colón, are the de facto leaders of the TSA,” he told Government Executive, describing Colon has a past critic of the OSC. "It's no wonder why there has been no resolution in my case -- Kerner designated acting Assistant Administrator Steven Colón as TSA's settlement negotiator."

Colon and Kerner’s offices did not respond to requests for comment, though a TSA spokesman referred a reporter to DHS, which also did not respond by publication time.