Statement of Michael E. Horowitz, Inspector General, U.S. Department of Justice before the U.S. Senate Committee on the Judiciary concerning “Inspector General Access to All Records Needed For Independent Oversight”

Statement of Michael E. Horowitz Inspector General, U.S. Department of Justice

before the

U.S. Senate Committee on the Judiciary

concerning

“Inspector General Access to All Records Needed For Independent Oversight”

August 5, 2015

Mr. Chairman, Senator Leahy, and Members of the Committee:

Thank you for inviting me to testify today about the critical importance of Inspector General access to all records and information that we need to conduct our independent oversight.

On July 20, the Office of Legal Counsel (OLC) at the Department of Justice (Department or DOJ) issued an opinion that restricts the DOJ Office of the Inspector General’s (DOJ-OIG) independent access to records in the Department’s possession that are necessary to carry out our oversight responsibilities. The legal underpinning of the OLC opinion, that the Inspector General Act (IG Act) does not give the DOJ-OIG independent access to all records in the DOJ’s possession despite the IG Act’s express authorization that an Inspector General have access to “all records” within its agency’s possession, represents a serious threat to the independence of not only the DOJ-OIG, but to all Inspectors General. Indeed, recently, Inspectors General at the Peace Corps and the Environmental Protection Agency (EPA) faced similar problems gaining access to records from the agencies they oversee. And, currently, the Inspector General at the Department of Commerce is facing a challenge obtaining access to records in that agency’s possession.

Independent oversight by Inspectors General helps make our government more effective and efficient, and Inspectors General have saved the taxpayers hundreds of billions of dollars in wasteful spending since the IG Act was passed in 1978. Refusing, restricting, or delaying an Inspector General's independent access to records and information may lead to incomplete, inaccurate, or significantly delayed findings and recommendations, which in turn may prevent the agency from promptly correcting serious problems and pursuing recoveries that benefit taxpayers, and deprive Congress of timely information regarding the agency's activities. It also may impede or otherwise inhibit investigations and prosecutions related to agency programs and operations.

I appreciate the strong bipartisan support the DOJ-OIG has received from Members of this Committee on this issue, as well as from many other Members of Congress as well. I also want to express my appreciation for the Committee’s strong bipartisan support on behalf of the entire Federal Inspector General community, represented by the Council of the Inspectors General on Integrity and Efficiency (Council of IGs), which I have the honor of chairing.

The Council of IGs, as detailed in our attached letter to Congress dated August 3, 2015, urges Congress to swiftly enact legislation that affirms the authority of an Inspector General under the IG Act to independently access all information and data in an agency’s possession that the Inspector General deems necessary to conduct its oversight functions. The legislation must further make clear that no law or provision restricting access to information applies to Inspectors General unless that law or provision expressly so states, and that such unrestricted Inspector General access extends to all records available to the agency, regardless of location or form. In my position as CIGIE chair, I am presently engaged in substantive discussions with the DOJ about a possible joint legislative proposal to address these concerns.

Background on Access Issues

Let me provide some historical context for the challenge we at the DOJ-OIG have faced with respect to access issues over the past five years. Prior to 2010, DOJ never questioned our legal authority to access documents in its possession that were necessary for our independent oversight. Indeed, Attorney General Reno expanded the DOJ-OIG’s jurisdiction to include oversight of two of the Department’s law enforcement components. And Attorney General Ashcroft further expanded our oversight authority to all DOJ law enforcement components, including the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA). The Congress codified this expansion of DOJ-OIG jurisdiction in 2003. Surely, in expanding our oversight responsibilities over the Department’s law enforcement components, the Attorneys General and Congress recognized that the DOJ-OIG would require access to relevant law enforcement documents and records, including grand jury and wiretap information.

That is why it is not surprising that, following this expansion of DOJ­ OIG oversight responsibilities, the DOJ-OIG frequently obtained from Department components – including the FBI – the exact same categories of records that the FBI began claiming in 2010 it did not have legal authority to provide to us. Indeed, over the course of the past 26 years, we have been provided access by the Department to some of the most sensitive information available to the Department, including information that allowed us to conduct reviews related to the Robert Hanssen matter, the Aldrich Ames matter, the September 11 attacks, the post-September 11 surveillance program initiated by President Bush, and the FBI’s use of its authorities under the Patriot Act and the FISA Amendments Act. And, without exception, we have handled this information properly, in accordance with all legal requirements and restrictions, and with appropriate security measures.

However, in 2010 and 2011, FBI lawyers opined that the DOJ-OIG should not have access to certain categories of information, namely grand jury, wiretap, and credit information. FBI lawyers also identified about ten other categories of information which its lawyers believed the DOJ-OIG was not entitled to access. Since that time, the DOJ-OIG has faced challenges to our authority to receive timely and complete access to Department records in a number of our reviews. Among the reviews and investigations where we faced challenges to access were: two FBI whistleblower retaliation investigations, the Department’s use of the material witness statute, the FBI’s use of National Security Letters, ATF’s Operation Fast and Furious, the U.S. Government’s sharing of information prior to the Boston Marathon Bombing, the Department’s handling of sexual harassment and sexual misconduct allegations, the DEA’s handling of confidential sources, and the DEA’s use of administrative subpoenas.

While, in each of these instances, the DOJ-OIG was ultimately provided access to the necessary records, the initial refusal resulted in lengthy delays to our work, sometimes months on end, and usually required me to personally elevate the matter to the Component’s leadership, or to the Attorney General or Deputy Attorney General. Moreover, the process that the Department put in place required the Attorney General or Deputy Attorney General to grant the DOJ-OIG permission to access grand jury, wiretap, and credit information, but they could do so only after determining that the DOJ-OIG’s review would be of assistance to them in managing the Department. Requiring an Inspector General to obtain agency leadership permission to access agency records that are necessary for the Inspector General to conduct effective oversight wholly undercuts the Inspector General’s independence, which is a central principle of the IG Act.

In May 2014, the then-Deputy Attorney General decided to ask OLC for an opinion on the legal objections raised by the FBI to providing the DOJ­ OIG access to grand jury, Title III electronic wiretap, and Fair Credit Reporting Act (FCRA) information.

In December 2014, in response to both concerns that I expressed in testimony before our Appropriations Subcommittees and numerous other Congressional Committees, and that 47 Inspectors General expressed in a letter sent to Congress in August 2014, the Appropriations Committees included a provision (Section 218) in the Department of Justice Fiscal Year 2015 appropriation that was “designed to improve OIG access to Department documents and information.” Section 218 states clearly that:

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.

Despite Congress’s unequivocal support for the OIG’s access to documents, as restated in Section 218, the FBI nevertheless continued to maintain its legal position that the OIG was not legally entitled to review certain records. Therefore, the OIG was obligated under Section 218 to report four instances where the FBI had failed to provide the OIG with timely access to information, including two involving FBI whistleblower retaliation investigations.

OLC Opinion

On July 20, 2015, the OLC issued its opinion, which concludes that Section 6(a) of the IG Act does not entitle the DOJ-OIG to obtain independent access to grand jury, wiretap, and credit information in the Department’s possession that is necessary for us to perform oversight of the FBI and other Department components. Indeed, the OLC opinion concludes that such records can only be obtained by the OIG in certain – but not all – circumstances through disclosure exceptions in specific laws related to those records. As a result, the OLC opinion provides that, in all instances, Department employees will decide whether access by the DOJ-OIG is warranted – placing agency staff in the position of deciding whether to grant the Inspector General access to information necessary to conduct our oversight. Requiring an Inspector General to obtain permission from agency staff in order to access agency information turns the principle of independent oversight that is contained within the IG Act on its head.

In the opinion, OLC argues that the IG Act's language authorizing an Inspector General to have "access to all records" does not override the disclosure provisions of the governing statutes of grand jury, Title III, and FCRA information. The OLC's opinion concluded that "neither the text of the IG Act, nor its legislative history, nor its general purpose offers a clear indication that Congress intended to override the separate statutory confidentiality requirements applicable to" Title III, GJ Rule, and FCRA information. As a result, the OLC opinion concluded that the DOJ-OIG’s access to records and documents within the Department remains subject to the limitations imposed by Title III, GJ Rule, and FCRA.

With respect to the grand jury information, the OLC opinion held that, in addition to not being authorized to obtain grand jury information under Section 6(a) of the IG Act, we are not authorized to access the information under the grand jury law because OIG attorneys are not “attorneys for the government” under Rule 6(e) of the Federal Rules of Criminal Procedures. In so doing, the opinion distinguishes between DOJ-OIG lawyers and Office of Professional Responsibility (OPR) attorneys, who are entitled under a 1984 OLC opinion to obtain access to grand jury information to conduct oversight over alleged attorney misconduct (and who we understand are also able to access wiretap information when conducting attorney misconduct oversight). The OLC opinion reasons that DOJ-OIG attorneys are unlike OPR attorneys in that OPR attorneys may “in principle” be delegated the Attorney General's authority to conduct criminal proceedings for the Department, even though to our knowledge OPR attorneys have not conducted criminal proceedings in their roles within OPR. In addition, the OLC opinion found unpersuasive the fact that two Federal District Judges had concluded in 1998 and 1999, at the Department of Justice’s urging, that DOJ-OIG lawyers were “attorneys for the government” under Rule 6(e).

Finally, the OLC opinion concluded that Section 218 of the Department’s FY 2015 appropriation “does not abrogate” the specific disclosure limitations found in the grand jury, wiretap, and credit laws. The OLC's opinion finds that, because Section 218 did not expressly "repeal" these non-disclosure provisions, the appropriators did not "provide a clear statement that the IG Act should be interpreted to override the limitations on disclosure.” The OLC's opinion therefore concluded that, while our position that Section 218 was intended to prohibit DOJ from withholding grand jury, wiretap, and credit information was "plausible," the OLC believed that Section 218 “was best read to permit adherence to the disclosure restrictions” in those three laws.

Impact of the OLC Opinion

As the attached Council of IGs letter makes clear, the OLC opinion will not only negatively impact the oversight work of the DOJ-OIG, but has the potential to adversely affect the entire Inspector General community. A hallmark of the IG Act – independent access by Inspectors General to all information in an agency’s possession that is necessary for our oversight work – has been pierced. For the first time since the IG Act was passed in 1978, the lawyers for the Executive Branch have concluded that “all” in Section 6(a) of the IG Act does not mean “all.” As a result, the Inspector General community is concerned that the OLC opinion could lead to agencies objecting to the production to Inspectors General of other categories of records that are subject to non-disclosure provisions. Indeed, we understand that preliminary research has found that there are over 1,000 laws that contain disclosure restrictions in them.

As noted above, the FBI has already identified at least ten other categories of information that it has stated it may not be able to produce to the DOJ-OIG because of access restrictions in those laws. These include: FISA Information, Attorney-Client Information, Patient Medical Information, Bank Secrecy Act Information, Federal Juvenile Court Records, Information Subject to Non-Disclosure Agreements and Memoranda of Understanding, and Source Information. Moreover, as noted previously, Inspectors General at the Peace Corps, EPA, and Commerce have recently dealt with or are dealing with similar issues.

Additionally, the OLC opinion creates potential ambiguity and uncertainty as to what information witnesses and agency personnel can provide to Inspectors General conducting oversight, possibly resulting in their becoming less forthcoming and fearful of being accused of improperly divulging information. Such a shift in mindset could deter whistleblowers from directly providing information to Inspectors General about waste, fraud, abuse, or mismanagement because of concern that the agency may later claim that the disclosure was improper and use that decision to retaliate against the whistleblower.

As the Council of IGs describes in its letter, actions that limit, condition, or delay access to all agency information have profoundly negative consequences for our work: they make us less effective and erode the morale of the dedicated professionals who make up our staffs and are committed to the difficult task of government oversight. Such limitations are inconsistent with the IG Act, at odds with the independence of Inspectors General, and risk insulating agencies from independent scrutiny – the very issues that our offices were established to review and that the American people expect us to be able to address.

Need for Legislative Remedy

The only means to address this serious threat to Inspector General independence is for Congress to promptly pass legislation that affirms the independent authority of Inspectors General to access without delay all information and data in an agency’s possession that an Inspector General deems necessary to execute its oversight functions under the law. The legislation should unambiguously state and provide what we in the Inspector General community have long understood – that no law or provision restricting access to information applies to Inspectors General unless that law or provision expressly so states, and that such unrestricted Inspector General access extends to all records available to the agency, regardless of location or form. In my view, only this kind of definitive legislation can ensure and promote an Inspector General’s independent and unimpeded access to information as envisioned by the IG Act.