```

[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\
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    \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\
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    \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).
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    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\
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    \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.).
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    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\
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    \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]
```