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Letter from Inspector General Horowitz to Congressional Appropriations Committees Regarding Access to Information

U.S. Department of Justice

Office of the Inspector General

March 4, 2015

The Honorable Hal Rogers                                       The Honorable Nita Lowey
Chairman                                                                   Ranking Member

Committee on Appropriations                                   Committee on Appropriations
U.S. House of Representatives                                U.S. House of Representatives
Rayburn House Office Building                              Rayburn House Office Building
Washington D.C. 20515                                           Washington D.C. 20515

The Honorable Thad Cochran                                 The Honorable Barbara Mikulski
Chairman                                                                
Vice Chairwoman

Committee on Appropriations                                 Committee on Appropriations
United States Senate                                                United States Senate
Hart Senate Office Building                                    Hart Senate Office Building
Washington D.C. 20510                                           Washington D.C. 20510

Dear Chairmen, Vice Chairwoman, and Ranking Member:

This letter is to report to the Committees on Appropriations, as required by Section 218 of the Department of Justice Appropriations Act, 2015, Pub. L. No. 113-235, § 218, 128 Stat. 2130, 2200 (2014), that the Federal Bureau of Investigation (FBI) has failed, for reasons unrelated to any express limitation in Section 6(a) of the Inspector General Act (IO Act) to provide the Department of Justice Office of the Inspector General (010) with timely access to certain records. The 010 requested these records in connection with a review of the FBl's security clearance adjudication process.

As you are aware, Section 218 provides:

No funds provided in this Act shall be used to deny the Inspector General of the Department of Justice timely access to all records, documents, and other materials in the custody of the Department or to prevent or impede the Inspector General's access to such records, documents and other materials, unless in accordance with an express limitation of section 6(a) of the Inspector General Act, as amended, consistent with the plain language of the Inspector General Act, as amended. The Inspector General of the Department of Justice shall report to the Committees on Appropriations within five calendar days of any failures to comply with this requirement.

Id.

The unfulfilled document request that causes the OIG to make this report was sent to the FBI on September 8, 2014. Since that time, the FBI has made partial productions in this matter, and there have been multiple discussions between the 010 and the FBI about this request, resulting in the 010 setting a final deadline for production of all material of January 30, 2015.

The FBI recently made an additional production, but informed us that additional time is still required for completing production. The reason for the FBI's inability to meet the deadline set by the 010 for production is the FBl's desire to continue its review of e-mails requested by the 010 to determine whether they contain any information which the FBI maintains the 010 is not legally entitled to access, such as grand jury, Title III electronic surveillance, and Fair Credit Reporting Act information. It has been the FBI's position in other cases that, for any such information it identified, it would need the authorization of the Attorney General or Deputy Attorney General in order to produce the information to the 010. However, Section 6(a) of the IO Act does not contain an express limitation of the OIG's access to these categories of information. Moreover, even if the Department's leadership were to give such authorization, a process allowing the OIG access to records of the Department only when granted permission by the Department's leadership is inconsistent with Section 6(a) of the IO Act, 010 independence, and Section 218 of the Appropriations Act.

Section 218 of the Appropriations Act does not permit the use of funds appropriated to the Department of Justice to deny the 010 access to records in the custody of the Department unless in accordance with an express limitation of Section 6(a) of the IO Act. The 10 Act, Section 6(a), does not expressly or otherwise limit the OIG's access to the categories of information the FBI maintains it must review before providing records to the 010. For this reason, we are reporting this matter to the Appropriations Committees in conformity with Section 218.

We will continue to work to resolve this matter, and will keep the Committees apprised of our progress. If you have any questions, please feel free to contact me or Chief of Staff Jay Lerner at (202) 514-3435.

Sincerely,

Michael E. Horowitz Inspector General

cc: The Honorable John Culberson
Chairman, Subcommittee on Commerce, Justice, Science and
Related Agencies

Committee on Appropriations
U.S. House of Representatives

The Honorable Chaka Fattah
Ranking Member, Subcommittee on Commerce, Justice, Science and
Related Agencies

Committee on Appropriations
U.S. House of Representatives

The Honorable Richard Shelby
Chairman, Subcommittee on Commerce, Justice, Science and
Related Agencies

Committee on Appropriations
United States Senate

The Honorable Jason Chaffetz
Chairman, Committee on Oversight and

Government Reform
U.S. House of Representatives

The Honorable Elijah Cummings
Ranking Member, Committee on Oversight and
Government Reform

U.S. House of Representatives

The Honorable Ron Johnson
Chairman, Committee on Homeland Security and
Governmental Affairs

United States Senate

The Honorable Thomas Carper
Ranking Member, Committee on Homeland Security and
Governmental Affairs

United States Senate

The Honorable Bob Goodlatte
Chairman, Committee on the Judiciary

U.S. House of Representatives

The Honorable John Conyers, Jr.
Ranking Member, Committee on the Judiciary
U.S. House of Representatives

The Honorable Charles Grassley Chairman, Committee on the Judiciary
United States Senate

The Honorable Patrick Leahy
Ranking Member, Committee on the Judiciary
United States Senate

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