The independence and quality of inspectors general investigations are threatened by the refusals of three agencies to turn over sensitive documents sought by auditors, a House panel was told on Wednesday.
Watchdogs for the Justice Department, Environmental Protection Agency and the Peace Corps spoke to the House Oversight and Government Reform Committee in a continuing series of hearings on “roadblocks” certain IGs face when agencies invoke competing statutory or legal authority to keep documents under wraps. There were no agency witnesses present to share their side of the story.
“The agencies spend millions on lawyers trying to impede inspector general investigations, which is one of the biggest items of waste and impedes the ability of Congress to perform oversight,” said Chairman Darrell Issa, R-Calif. Though IGs save $17 for every $1 invested, Issa said, “the main problem is not money but something more valuable—liberty. The 12,000 IG employees are part of the president’s team for efficiency and transparency, but they’re not getting what they want.”
Wednesday’s hearing came a month after 47 inspectors general wrote a rare letter to Congress complaining of document denials. This Tuesday, the lawmakers noted at the hearing, they received what most regarded as an unsatisfactory response from newly installed White House Budget Director Shaun Donovan.
“IGs have been more productive than ever before—issuing more reports on audits, inspections, and evaluations every year since 2009 than in any of the three years prior to 2008,” Donovan said. Of 337 annual reports submitted in the past several years, only seven included complaints, he added.
Donovan agreed, however, that agencies could improve how they work with IGs and said the budget office is working with the Council of the Inspectors General on Integrity and Efficiency “to ensure that all agencies and their staffs are properly informed and trained on the requirements” of Section 6(a) of the 1978 Inspector General Act.
That section was cited in testimony by all three inspectors general as their authority to access agency documents. Witnesses said the agency resistance is a relatively recent development. Justice IG Michael Horowitz noted he went through investigations following the 9/11 terrorist attacks and the arrest of FBI-employed Russian spy Robert Hanssen. “The FBI does not read Section 6(a) the way we do, and it seriously compromises our independence,” he said.
The FBI even rejected a routine request for an organization chart, saying such decisions must go through the bureau’s general counsel, Horowitz said. “It has substantial impact on the morale of auditors and investigators,” he added.
The Justice watchdog’s requests for documents involving wiretaps or grand jury testimony have on six occasions been waived through by the attorney general, the IG said. But attorneys general and their staffs turn over, and it’s Congress that gave IGs their authority for access, Horowitz said. He also complained of “disparate treatment” in that Justice’s Office of Professional Responsibility gets access to documents denied the IG.
Equally fervent in his complaints was Arthur Elkins Jr., the EPA inspector general who has been denied documents by the EPA’s Office of Homeland Security, which has cited national security “intelligence” grounds, and the Chemical Safety Board, which has cited attorney-client privilege during a probe of its chairman’s use of private email for federal business. “CSB has made substantial progress but has not fully complied with our document requests,” he said, while EPA asserts the existence of an “intelligence category that gives inspectors general access only if EPA determines it.”
Whether the solution is reiterating or strengthening the IG Act, Elkins said, “this is not hypothetical to me; it has real-world implications. The inspector general's role is like a house of cards,” he added. “If you pull out the agency cooperation aspect, it collapses.”
Kathy Buller, inspector general for the Peace Corps, said despite ongoing progress negotiating with the agency to obtain documents relating to sexual assaults of overseas volunteers, “the general counsel wrote an opinion that sets a dangerous precedent.” The opinion argues that the rape investigation privacy provisions of the 2011 Kate Puzey Volunteer Protection Act override the IG Act. “That suggests that privacy and oversight are mutually exclusive, and makes it difficult for us to complete our review to see that volunteers receive the services they need,” she said. “Our staff is completely professional, and has never mishandled Privacy Act information.”
The Justice Department Office of Legal Counsel is currently conducting a review of the issue.
One solution may be legislation to clarify the IGs' authority, noted ranking member Elijah Cummings, D-Md. Horowitz noted that a Senate committee-passed version of the 2015 Justice appropriations bill would prohibit funds from being used to deny IGs documents. Another legislative approach, backed by the nonprofit Project on Government Oversight, Horowitz noted, would give IGs the same access as the Office of Professional Responsibility.
But Cummings, while pronouncing himself a strong defender of IGs who has joined Republicans in demanding clarification from the Obama administration, noted that competing statutes in each of the three agencies complicate any possible solution. “Although I will not hesitate to pursue statutory clarification if necessary, the last thing IGs need is for legislation to be introduced and fail, which could have the unintended effect of diluting their authority,” he said.
Issa suggested President Obama resolve the problem through an executive order.
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