WASHINGTON – Members of the Senate and House of Representatives are pressing the Obama administration to provide and commit to particular legislative language that would ensure that inspectors general receive unfettered access to all agency documents, as current law intends. The letter, sent to Deputy Attorney General Sally Yates and Justice Department Inspector General Michael Horowitz, is being led by Senate Judiciary Committee Chairman Chuck Grassley of Iowa.
The Inspector General Act authorizes inspectors general to access “all” records belonging to their respective agency. The Homeland Security and Government Affairs Committee, the House Oversight and Government Reform and Judiciary Committees and the Senate Commerce, Justice and Science Appropriations Subcommittee each held hearings that discussed the continued practice of agencies not providing certain documents to inspectors general. These hearings laid the groundwork for clarifying language in an annual appropriations bill that is commonly being referred to as Section 218. This language declared that no funds should be used to deny the IG timely access to all records. Section 218 also directed the inspector general to report to Congress within five days whenever there was a failure to comply with this requirement.
After an Office of Legal Counsel opinion that said inspectors general now must obtain agency permission to access certain documents, and reverses the presumption of the Inspector General Act that inspectors general have unfiltered access to any and all information they deem necessary for effective oversight, the Chairman and Ranking Member of the Commerce, Justice and Science Appropriations Subcommittee wrote a letter to the Justice Department saying that the Office of Legal Counsel’s interpretation of Section 218 was completely wrong.
Last week, the Senate Judiciary Committee convened a hearing to discuss the Justice Department’s failure to comply with its legal obligation to ensure inspector general access to all records needed for independent oversight. During the hearing, administration officials reiterated their support for legislation that would clarify that inspectors general should have access to all the documents needed to conduct their work.
In the letter to the Justice Department, the members wrote, “This hearing brought to light serious questions about the effect the OLC opinion would have on the independence and effectiveness of the Office of Inspector General, not just at the Department of Justice but also across the federal government.... It is apparent that Congress needs to act to ensure that Inspectors General have complete and immediate access to all records in the possession of their respective agencies, unless a statute restricting access to documents expressly states that the provision applies to Inspectors General”
The Justice Department continues to withhold records despite Congress’ clear assertion that all documents should be available to the inspector general. Since the Office of Legal Counsel opinion, other agencies have used that opinion to justify denying records to their inspector general offices.
The letter, signed by Senate Judiciary Committee Chairman and Ranking Member Grassley and Patrick Leahy; Senate Homeland Security and Government Affairs Committee Chairman and Ranking Member Ron Johnson and Tom Carper; House Judiciary Committee Chairman and Ranking Member Bob Goodlatte and John Conyers; House Government Oversight Committee Chairman and Ranking Member Jason Chaffetz and Elijah Cummings; and Senators John Cornyn, Claire McCaskill, Thom Tillis and Amy Klobuchar, asks the Justice Department to provide, “Legislative language that would ensure Inspectors General have access to all department records, notwithstanding limitations contained in any of the potentially hundreds of provisions of law or any common-law privilege that might otherwise arguably limit such disclosure.”
A copy of the text of the letter is below. Here is a copy of the signed letter.
VIA ELECTRONIC TRANSMISSION
The Honorable Sally Quillian Yates
Deputy Attorney General
U.S. Department of Justice
Washington, D.C. 20530
The Honorable Michael Horowitz
Inspector General
U.S. Department of Justice
Washington, D.C. 20530
Dear Deputy Attorney General Yates and Inspector General Horowitz:
Last month, the Department of Justice (DOJ) made public an Office of Legal Counsel (OLC) opinion that allows DOJ to withhold access to certain records sought by DOJ’s Office of Inspector General. Under the OLC opinion, and subsequent guidance provided by the Office of the Deputy Attorney General, the DOJ Inspector General must now obtain agency permission to access certain documents related to grand jury testimony, Title III wiretaps, and the Fair Credit Reporting Act. This opinion undermines the long-standing presumption that Inspectors General have access to any and all information that they deem necessary for effective oversight, as specified in the Inspector General Act of 1978.
On August 5, 2015, the Senate Judiciary Committee convened a hearing entitled, “‘All’ Means ‘All’: The Justice Department’s Failure to Comply with Its Legal Obligation to Ensure Inspector General Access to All Records Needed for Independent Oversight.” This hearing brought to light serious questions about the effect the OLC opinion would have on the independence and effectiveness of the Office of Inspector General, not just at the Department of Justice but also across the federal government. The opinion has already been relied on by other federal agencies to prevent their Inspectors General complete and timely access to documents necessary to conduct audits and investigations. It is apparent that Congress needs to act to ensure that Inspectors General have complete and immediate access to all records in the possession of their respective agencies, unless a statute restricting access to documents expressly states that the provision applies to Inspectors General.
We understand the Office of the Deputy Attorney General and the Office of Inspector General have been working collaboratively on legislative language to address this issue. Accordingly, by no later than August 28, 2015, please provide your recommended legislative language that would ensure Inspectors General have access to all Department records, notwithstanding limitations contained in any of the potentially hundreds of provisions of law or any common-law privilege that might otherwise arguably limit such disclosure.
Thank you for your immediate attention to this matter.
Sincerely,
Charles E. Grassley
Chairman
U.S. Senate Committee on the Judiciary
Patrick Leahy
Ranking Member
U.S. Senate Committee on the Judiciary
Ron Johnson
Chairman
U.S. Senate Committee on Homeland Security and Governmental Affairs
Tom Carper
Ranking Member
U.S. Senate Committee on Homeland Security and Governmental Affairs
Bob Goodlatte
Chairman
U.S. House of Representatives Committee on the Judiciary
John Conyers
Ranking Member
U.S. House of Representatives Committee on the Judiciary
Jason Chaffetz
Chairman
U.S. House of Representatives Committee on Oversight and Government Reform
Claire McCaskill
U.S. Senate Committee on Homeland Security and Governmental Affairs
Thom Tillis
U.S. Senate Committee on the Judiciary
Amy Klobuchar
U.S. Senate Committee on the Judiciary
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