69–006 

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’’. 

2 

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. 

3 

1See 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). 2Message 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). 3 H.R. 11280, 95th Cong. (1978); S. 2640, 95th Cong. (1978). 

4 Reorganization Plan No. 2 of 1978, 43 Fed. Reg. 36037, 92 Stat. 3783 (1978). 

5See 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 § 204(c), 43 Fed. Reg. 36037, 92 Stat. 3783, 3785 (1978). 

8Pub. L. No. 95–454 § 3(4), 92 Stat. 1111, 1112 (1978); c.f. H.R. 11280, 95th Cong. § 3(3) 

(1978). 

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: 

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

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

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

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 ProVerDate Sep 11 2014 07:15 Jul 29, 2017 Jkt 069006 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\HR268.XXX HR268
4 

9S. COMM. ON GOVERNMENTAL AFFAIRS, CIVIL SERVICE REFORM ACT OF 1978, 95th Cong. 

(1978) (S. Rep. No. 95–969). 10Pub. L. No. 95–454 § 202(a), 92 Stat. 1111, 1123 (1978); c.f. H.R. 11280, 95th Cong. § 202(a) 

(1978). 11 Id. 12Whistleblower Prot. Act of 1989, Pub. L. No. 101–12 § 3, 103 Stat. 16, 19 (1989). OSC had 

functionally separated from the MSPB several years earlier. 13 Exec. Order No. 12107, 44 Fed. Reg. 1,055 (Jan. 3, 1979). 14 Civ. Serv. Rule 5.4, 5 C.F.R. § 5.4 (1979). 

tection 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. 

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

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

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: 

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

Since OSC’s creation, it has used its investigatory authority extensively. OSC investigations depend on the routine issuance of 

5 

15Merit 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). 16Whistleblower 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). 17 Id. at 37 (statement of Darrell Issa, Chairman, H. Comm. on Oversight & Gov’t Reform). 18 Id. at 55 (statement of Carolyn N. Lerner, Spec. Counsel). 19Merit 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). 

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. 

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: 

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

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

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: 

6 

20 Id. 21 Id. 22 Civ. Serv. Rule 5.4, 5 C.F.R. § 5.4 (1979). 

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

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

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. 

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 

7 

23 H. COMM. ON OVERSIGHT & GOV’T REFORM, THOROUGHLY INVESTIGATING RETALIATION

AGAINST WHISTLEBLOWERS ACT 5, 114th Cong. (2016) (H. Rep. No. 114–521). 24S. 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). 

allegations of prohibited personnel practices or Hatch Act 

violations.23

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. 

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 

8 

26Whistleblower Prot. Enhancement Act of 2012, Pub. L. No. 112–199 § 109, 126 Stat. 1465, 

1470 (2012). 27Transparency at TSA: Hearing before the H. Comm. on Oversight & Gov’t Reform, 115th 

Cong. (2017) (statement of Carolyn N. Lerner, Spec. Counsel). 28Dep’t of Homeland Sec. v. MacLean, 135 S. Ct. 913, 921 (2015). 29See, 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). 30Meeting invitation from Steven Colon to Steven Lewengrub, Paula Billingsley, and Jeffrey 

Velasco, Transp. Sec. Admin. (Dec. 15, 2014 meeting). 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). 

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

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

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 

9 

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.). 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.). 39Transparency 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). 

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

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

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

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 relVerDate Sep 11 2014 07:15 Jul 29, 2017 Jkt 069006 PO 00000 Frm 00009 Fmt 6659 Sfmt 6602 E:\HR\OC\HR268.XXX HR268
10 

41 Id. 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 § 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 § 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). 45Transparency at TSA: Hearing Before the H. Comm. on Oversight & Gov’t Reform, 115th 

Cong. (Mar. 2, 2017) (statement of Carolyn N. Lerner, Spec. Counsel). 

evant 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 attorneyclient 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

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. 

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

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) 

11 

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 pursuVerDate Sep 11 2014 07:15 Jul 29, 2017 Jkt 069006 PO 00000 Frm 00011 Fmt 6659 Sfmt 6602 E:\HR\OC\HR268.XXX HR268
12 

ant 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. 

13 

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 

14 

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 onbudget 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 

* * * * * * * 

§ 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; 

15 

(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. 

16 

(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 

17 

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). 

* * * * * * * 

Æ