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House Panelists Scold Five Agencies for Slow-Walking Documents

Chaffetz excoriates OPM, OMB, Justice, State and Homeland Security.

Officials of the five agencies subject to the most voluminous document requests from Capitol Hill took some rhetorical hits from lawmakers on Thursday in the latest clash between Congress’ oversight duties and the vetting responsibilities of stretched executive branch staffs.

 “Send us everything,” Rep. Jason Chaffetz, R-Utah, chairman of the House Oversight and Government Reform Committee, instructed witnesses who, while promising cooperation, attributed delays to a record number of requests, the need to redact personal information and the need to protect litigation strategies and internal agency deliberations.

“Generally when we send a letter, it’s not a ‘thank you’ note, or a Christmas card. Generally a letter from the Oversight Committee is a little tougher than that,” said Chaffetz, who called the hearing to ferret out documents from an array of agencies: the Secret Service, Transportation Security Administration, White House Office of Information and Regulatory Affairs, Office of Personnel Management, State and Justice departments, and the Internal Revenue Service.

“When the committee sends a request, we expect an honest effort to identify and collect the records that are responsive,” he said. “We expect communication. We expect to be kept informed and [for you] to be straight with us. And we expect that you’ll work with us in a good faith, which basically means when you make a commitment, do what you say you’re going to do.”

Chaffetz allowed that he was “somewhat sympathetic to the idea that they get bombarded, not just by us, but from so many different committees not only in the House, but in the Senate as well.” But when agency officials want to talk about the number of documents they produced, “I’m not interested in that,” he said. “I’m interested in the percentage of documents that you produced. Because if we want 100 percent of the truth, we’re going to need 100 percent of the documents. And until we get them, it makes us think that you’re hiding something.”

Ranking Member Elijah Cummings, D-Md., agreed that “oversight can be stifled by slow-walking documents or withholding information to which Congress is entitled.” But he appealed for negotiations and restraint by lawmakers in making broad requests. “Unfortunately, I have also seen how investigations can be used as a form of political attack rather than a search for the facts.  I have seen how massive, repeated, and overbroad document requests have been used as a partisan weapon.  I have seen how they can grind down agencies, force them to divert personnel and waste millions of taxpayer dollars in the process.”

Cummings cautioned against efforts to “shame the heads of the legislative affairs offices,” noting that many of them have worked for Congress and “are among some of our most effective advocates within the agencies.”

Addressing the massive data breach at the Office of Personnel Management, Chaffetz voiced frustration as he held up a stack of released documents that were nearly all black with redactions, and Rep. Mark Meadows, R-N.C., held up a stack of binders of documents delivered by the Office of Management and Budget that he said “offended” him because they were “duplicative” and already available online.

Jason Levine, director of OPM’s Office of Congressional, Legislative, and Intergovernmental Affairs, said his “small agency” had “received and provided responses to every question in six separate document production requests resulting in 19 separate document productions, including tens of thousands of documents and internal reports. He added his agency received more than 170 letters from Congress regarding the breach, made hundreds of calls to lawmakers, testified at four public hearings and conducted 10 classified and unclassified briefings.

OPM has hired additional staff and detailees from other agencies to increase document production capability, Levine said. The staff made redactions based on recommendations by security experts at other agencies and made “significant documents available for review by lawmakers in camera. “We believed we answered every question,” he said. “We will work with you.”

Peter Kadzik, assistant attorney general for legislative affairs, was asked about documents on Justice’s litigation on geospatial domestic surveillance as well as its decision not to prosecute IRS employees involved in the controversy over alleged political targeting of nonprofits. Kadzik testified that Justice had been involved in 60 congressional hearings and responded to 1,870 letters in the past year.

 But “we have an obligation,” he added, to protect attorney-client privilege, attorney work product, internal communications regarding “sensitive law enforcement” and litigation issues, and to see that “decisions are made without regard to political considerations.”

When Chaffetz demanded copies of prosecutorial strategies being sent out “widely” to U.S. attorneys, Kadzik denied that the instructions were circulated widely, adding that his agency wants to cooperate with the committee: “We don’t think or expect it to be adversarial.”

When Rep. Jim Jordan, R-Ohio, asked him a series of questions about Justice’s own investigation of IRS mishandling of applications for tax-exempt status—did Justice transcribe interviews, did DoJ talk to Commissioner John Koskinen, did the department alert the White House when the conclusions were ready?—Kadzik said those will be addressed at a House hearing planned for next week.

The agency hit hardest on slow document production was the State Department. Julia Frifield, assistant secretary at State’s Bureau of Legislative Affairs, said department officials appeared at 168 hearings, and that State responded to over 1,700 congressional letters in 2015. “Frankly, we at the State Department have struggled to keep pace with the increasing demands of congressional document requests, which have expanded in number, scope and complexity,” she said. “We are now responding to dozens of investigations by nine different committees, involving hundreds of specific requests for hundreds of thousands of pages of documents. This is approximately twice as many as we had in 2014.”

Frifield described State’s months-old document production branch, which has new funding and new software to speed searches and provide electronic documents that are searchable. “The difficulty is in the resources,” she said, asking that lawmakers and agency staff “sit down with each other and say ‘these are our priorities’ rather than just saying ‘all documents.’ “

The Office of Management and Budget was blasted for sluggish delivery of documents related to a clean water rule opposed by many Republicans that is now subject to a court battle. Tamara Fucile, OMB’s associate director for legislative affairs, said her agency of 550 employees “has acted in good faith,” having turned over many documents, some going back nine years. OMB last year received requests from 10 committees that added up to 1,650 related to the recent budget deal, 600 in the past few months, she said. “We gave the documents without redactions, except for email addresses.”

Fucile hesitated to give Chaffetz a direct “yes” or “no” on whether OMB can turn over all documents by a date certain, citing issues of privacy and litigation. “We are committed to getting you the information,” she said, promising more documents in the next month. “We want to be helpful, but proper review is quite an intense process, though our response rate can improve.”

The Homeland Security Department was blasted by Reps. John Mica, R-Fla., and Stephen Lynch, D-Mass., for incomplete documents dating back to March and for not handing over data on visa overstays—which recently became an issue in the war against terror.

Tia Johnson, assistant secretary in DHS’s Office of Legislative Affairs, said when she arrived at her job she was surprised to see the volume of oversight requests, “from 92 committees and subcommittees and 27 other caucuses.”

“We received over 700 letters in 2015, 70 from this committee, and took 100,000 hours responding,” Johnson said. She asked the committee to help implement the recommendation of the 2004 9/11 Commission report that Congress simplify DHS oversight.

Calling the report on visa overstays “overdue,” she declined to say when Secretary Jeh Johnson might deliver it.

Rep. Gerry Connolly, D-Va., warned that some legitimate document requests devolve into a “partisan fishing expedition,” and that lawmakers sometimes act as if “all the documents are all sitting in a pile” and the agencies are withholding them.

“Just turn on the photocopier,” Chaffetz instructed the witnesses, adding, “we want to read the documents.” He also asked each witness to promise to give a notice when the document production is complete, promising that witnesses will be called again.

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