A watchdog can’t effectively oversee the government without timely and complete access to agency records. This principle is enshrined in the Inspector General (IG) Act, which provides that each IG shall have “access to all records, reports, audits, reviews, documents, papers, recommendations, or other material” related to the IG’s oversight duties.
When it comes to the FBI, however, the question of IG access is still being hotly contested.
In the FY 2015 appropriations law, Congress stipulated that no funds could be used to deny the Department of Justice (DOJ) Office of Inspector General (OIG) timely access to records. While this provision has helped resolve access issues with many DOJ offices, the FBI continues to challenge the OIG’s authority, according to a report issued by the OIG last week (the report was first highlighted by Government Executive).
First the good news. Shortly after the appropriations law was enacted, the Drug Enforcement Administration (DEA) gave the OIG access to previously contested records related to the DEA’s use of administrative subpoenas and its Confidential Source program. Likewise, the OIG reported, officials at other DOJ offices told the OIG they intended to comply with the appropriations provision.
Now the bad news. The FBI “continues to maintain the position it first announced in 2010 that the OIG is not legally entitled to review certain records, including grand jury, Title III electronic surveillance, and Fair Credit Reporting Act (FCRA) information,” according to the OIG’s report. For instance, the FBI has continued to withhold materials from two OIG investigations of alleged whistleblower retaliation, and from an OIG review concerning the FBI’s use of telephonic metadata collected under Section 215 of the Patriot Act.
In response to questions from the Project On Government Oversight, a DOJ spokesperson referred us to an April 2015 memo issued by then-Acting Deputy Attorney General Sally Yates. This memo, included as an appendix to the OIG’s report, instructed DOJ office heads to provide the OIG with restricted information “without delay” when the Deputy Attorney General’s office has made a determination “that an OIG investigation or review qualifies for access to such information.” Yates wrote she was “confident that these new procedures will result in the OIG getting the documents it needs in a timely manner, thus facilitating OIG’s ability to fulfill its important mission.”
The following month, DOJ IG Michael Horowitz—who also chairs the federal council of IGs—wrote that the “revised process could result in records being produced in a more timely fashion.” But he raised concerns that his office would still be required to seek the Department’s permission. That procedure is “inconsistent with the Inspector General Act, impairs the OIG’s independence, and fails to account for the over 20 year record of Department and FBI compliance with OIG document requests,” according to the OIG’s report.
Meanwhile, DOJ’s budget request for FY 2016 seeks to remove the appropriations language clarifying the OIG’s authority to access records. In an explanatory note, DOJ stated it was “unaware of any specific materials that the OIG believed necessary to its reviews, but to which the OIG has not been granted access.” The Department said it “intends to work with the OIG to develop statutory language that would more clearly address the Inspector General’s concerns regarding access to such information.” In the four months since the budget request was submitted, however, DOJ leadership “has made no attempt to provide the OIG with a legislative proposal that the Department believes will resolve the legal issue,” according to the OIG’s report. Furthermore, the OIG said it was not given an opportunity to comment on the proposal to remove the appropriations provision, as required by the IG Act.
The OIG’s report explains why the access issue is so important. “Delaying or denying access to agency documents imperils an IG’s independence and impedes our ability to provide the effective and independent oversight that saves taxpayers money and improves the operations of the federal government,” the report says. “Actions that limit, condition, or delay access have profoundly negative consequences for our work: they make us less effective, encourage other agencies to take similar actions in the future, and erode the morale of the dedicated professionals that make up our staffs.”
Last summer, 47 IGs wrote to Congress raising concerns that agency leaders have impeded the access of IG offices at DOJ, the Environmental Protection Agency, and the Peace Corps. A bipartisan bill adopted this year by the Senate Homeland Security and Governmental Affairs Committee would require each IG office to provide Congress with a semiannual report that includes a detailed description of any incident where a federal agency or department “restricted or significantly delayed access to information, including the justification of the Federal agency or department for such action.”
POGO has urged Congress to remove another limitation on the DOJ OIG’s authority. In a 2014 report, POGO described how an internal affairs office at DOJ—the Office of Professional Responsibility—has the exclusive authority to investigate allegations of prosecutorial misconduct by DOJ attorneys. We argued that the OIG “should be given the explicit authority to investigate allegations of misconduct throughout the agency like all other OIGs.” DOJ IG Horowitz has repeatedly testified in support of this proposal, and bipartisan legislation introduced last year by Senators Mike Lee (R-UT) and Jon Tester (D-MT) would have given the OIG full authority to investigate allegations of attorney misconduct had it passed.
We urge Congress to revisit this proposal, and to investigate any ongoing access disputes that are impeding the ability of IG offices to function as independent and aggressive watchdogs.
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