IGs: Administration stymies access

A long simmering controversy between the inspector general community and the Obama administration is heating up. At issue is the access IGs have to agency documents.

Michael Horowitz, IG for the Department of Justice, has been outspoken in letters and congressional testimony about a lack of access to certain materials, including grand jury testimony and wiretap transcripts, that are needed to conduct oversight of law enforcement agencies like the FBI and the DEA. Access to those materials has been severely curtailed since 2010, according to Horowitz.

A recent memo from the Office of Legal Council found that despite the IG Act and a rider in a 2015 appropriations bill, the Justice Department was justified in withholding or putting conditions on the release of grand jury, credit and wiretap information because of competing statutes that provide for protections of that information.

The Department of Justice "has grappled with two different, and potentially conflicting, sets of statutory commands" when dealing with IG information requests, Associate Deputy Attorney General Carlos Uriarte said in an Aug. 5 Senate Judiciary Committee hearing. The OLC memo spells out how information in certain protected categories is to be doled out in response to IG requests.

Uriarte and FBI Associate Deputy Director Kevin L. Perkins both said that additional legislation that settled the relationship between the IG Act and other statutes would help clarify the situation for agency leaders and IGs.

Judiciary Chairman Chuck Grassley (R-Iowa) was clearly unhappy with the OLC memo. He noted that appropriators "essentially bolded and underlined section 6A of the IG act that ensures access to records," in the fiscal 2015 bill funding the Justice Department.

The OLC opinion, Horowitz testified, "will not only negatively impact the oversight work of the DOJ-OIG, but has the potential to adversely affect the entire inspector general community."

Horowitz noted that document production has been speeding up, but lack of access continued to be a problem. He testified that just a day ago, his office received documents as part of its probe into the FBI's use of bulk telephone metadata that were redacted for reasons other than those identified in the OLC memo. The FBI has identified legal concerns about disclosures in 10 other areas, Horowitz said.

"While the process has improved, we are still getting redacted information, and it is not resolved," Horowitz said.

Horowitz warned that whistleblowers might be deterred from disclosing information about malfeasance if it could be later determined that the material was not permitted to be shared with agency watchdogs. Additionally, Horowitz said that other agencies could come up with their own categories of documents that are not eligible for disclosure.

"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," Horowitz said. "For the first time since the IG Act was passed in 1978, the lawyers for the executive branch have concluded that 'all' in Section 6a of the IG Act does not mean all."

This view is widely shared in the IG community. Dozens of confirmed and acting IGs signed a letter to the chairmen and ranking members of the House and Senate government watchdog committees asking for legislation that "affirms the independent authority of inspectors general to access without delay" all data and information sought by an IG.

"Every day there's not a fix, inspectors general are stuck," Horowitz said.