August 3, 2015 The Honorable Ron Johnson Chairman Committee on Homeland Security and Governmental Affairs United States Senate 344 Dirksen Senate Office Building Washington, DC 20510 The Honorable Jason Chaffetz Chairman Committee on Oversight and Government Reform United States House of Representatives 2157 Rayburn House Office Building Washington, DC 20515 The Honorable Thomas R. Carper Ranking Member Committee on Homeland Security and Governmental Affairs United States Senate 340 Dirksen Senate Office Building Washington, DC 20510 The Honorable Elijah E. Cummings Ranking Member Committee on Oversight and Government Reform United States House of Representatives 2471 Rayburn House Office Building Washington, DC 20515 Dear Mr. Chairmen and Ranking Members: On July 20, 2015, the Department of Justice (DOJ) Office of Legal Counsel (OLC) issued an opinion that sharply curtails the authority of the Inspector General for the Department of Justice (DOJ-IG) to independently access all records necessary to carry out its oversight responsibilities. The legal underpinning of this OLC opinion – that Section 6(a) of the Inspector General Act (IG Act) does not give the DOJ-IG independent access to all records in the DOJ’s possession that it needs to perform its oversight work – represents a serious threat to the independent authority of not only the DOJ-IG but to all Inspectors General. The Council of the Inspectors General on Integrity and Efficiency (CIGIE), representing 72 Federal Inspectors General, urges Congress to immediately pass legislation affirming the authority of an Inspector General under IG Act Section 6(a) to access, independently and without delay, all information and data in an agency’s possession that the Inspector General deems necessary to conduct its oversight functions. 1 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. The CIGIE Chair is presently engaged in substantive discussions with the DOJ about a possible joint legislative proposal to address these concerns. 1 As noted in the OLC opinion, CIGIE made two submissions to OLC in connection with this matter, one dated October 7, 2011, and another dated June 24, 2014. Those submissions are attached to this letter. 1717 H Street, NW, Suite 825, Washington, D.C. 20006 The Honorable Ron Johnson The Honorable Jason Chaffetz The Honorable Thomas R. Carper The Honorable Elijah E. Cummings Page 2 Despite the unequivocal language of Section 6(a) of the IG Act, the OLC opinion concludes that it does not entitle the DOJ-IG to obtain independent access to grand jury, wiretap, and credit information in the DOJ’s possession that is necessary for the DOJ-IG to perform its work. Indeed, the OLC opinion concludes that such records cannot be obtained by the DOJ-IG pursuant to the IG Act, and can only be obtained in certain – but not all – circumstances through provisions in the specific laws related to those records. Further, the opinion provides that only the Department of Justice itself decides whether access by the DOJ-IG is warranted – placing the agency that the DOJ-IG oversees in the position of deciding whether to grant the Inspector General access to information necessary to conduct effective and independent 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 enshrined in the IG Act on its head. The OLC opinion’s restrictive reading of the IG Act represents a potentially serious challenge to the authority of every Inspector General and our collective ability to conduct our work thoroughly, independently, and in a timely manner. Our concern is that, as a result of the OLC opinion, agencies other than DOJ may likewise withhold crucial records from their Inspectors General, adversely impacting their work. Even absent this opinion, agencies such as the Peace Corps and the U.S. Chemical Safety and Hazard Investigation Board (CSB) have restricted or denied their OIGs access to agency records on claims of common law privileges or assertions that other laws prohibit access. Similarly, the Department of Commerce denied its Inspector General (Commerce-IG) access to agency records that were needed for the Commerce-IG to complete an audit of agency operations because agency counsel had concluded, based on guidance that agency counsel said came from OLC, that it might be a violation of another federal statute to make the records available to its Inspector General. As a result, the Commerce-IG could not complete its audit. Without timely and unfettered access to all necessary information, Inspectors General cannot ensure that all government programs and operations are subject to exacting and independent scrutiny. Refusing, restricting, or delaying an Inspector General's independent access 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. Uncertainty about the legal authority of Inspectors General to access all information in an agency’s possession could also negatively affect interactions between the staffs of the Offices of Inspector General and the agencies they oversee. Prior to this opinion, agency personnel could be confident, given the clear language of Section 6(a) of the IG Act, that they were required to and should share information openly with Inspector General staff, and typically they did so without reservation or delay. This led to increased candor during interviews, greater efficiency of investigations and other reviews, and earlier and more effective detection and resolution of The Honorable Ron Johnson The Honorable Jason Chaffetz The Honorable Thomas R. Carper The Honorable Elijah E. Cummings Page 3 waste, fraud, and abuse within Federal agencies. We are concerned that witnesses and other agency personnel, faced with uncertainty regarding the applicability of the OLC opinion to other records and situations, may now be less forthcoming and fearful of being accused of improperly divulging information. Such a shift in mindset also could deter whistleblowers from directly providing information about waste, fraud, abuse, or mismanagement to Inspectors General because of concern that the agency may later claim that the disclosure was improper and use that decision to retaliate against the whistleblower. In the over three decades since the IG Act’s passage, Inspectors General have saved taxpayers hundreds of billions of dollars and improved the programs and operations of the Federal government through their independent oversight. 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. 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 our 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. We look forward to working with the Committees on this most important matter. Sincerely, Michael E. Horowitz Chairperson Allison C. Lerner Vice Chairperson Kathy A. Buller Chairperson, Legislation Committee Steve A. Linick Vice Chairperson, Legislation Committee Enclosures The Honorable Ron Johnson The Honorable Jason Chaffetz The Honorable Thomas R. Carper The Honorable Elijah E. Cummings Page 4 Additional Signatories: Catherine Trujillo, Acting Inspector General, Agency for International Development The Honorable Phyllis Fong, Inspector General, Department of Agriculture Tom Howard, Inspector General, Amtrak Hubert Sparks, Inspector General, Appalachian Regional Commission Kevin Mulshine, Inspector General, Architect of the Capitol Mark Bialek, Inspector General, Board of Governors of the Federal Reserve System/Consumer Financial Protection Bureau Christopher Sharpley, Acting Inspector General, Central Intelligence Agency David Smith, Acting Inspector General, Department of Commerce A. Roy Lavik, Inspector General, Commodity Futures Trading Commission Christopher W. Dentel, Inspector General, Consumer Product Safety Commission The Honorable Deborah Jeffrey, Inspector General, Corporation for National and Community Service Mary Mitchelson, Inspector General, Corporation for Public Broadcasting The Honorable Jon T. Rymer, Inspector General, Department of Defense Kristi M. Waschull, Inspector General, Defense Intelligence Agency David Sheppard, Acting Inspector General, The Denali Commission The Honorable Kathleen Tighe, Inspector General, Department of Education Curtis Crider, Inspector General, U.S. Election Assistance Commission The Honorable Gregory H. Friedman, Inspector General, Department of Energy The Honorable Arthur A. Elkins, Jr., Inspector General, Environmental Protection Agency Milton Mayo, Inspector General, Equal Employment Opportunity Commission Michael T. McCarthy, Deputy Inspector General, Export-Import Bank of the United States Elizabeth Dean, Inspector General, Farm Credit Administration David L. Hunt, Inspector General, Federal Communication Commission Fred W. Gibson, Acting Inspector General, Federal Deposit Insurance Corporation Lynne A. McFarland, Inspector General, Federal Election Commission The Honorable Laura S. Wertheimer, Inspector General, Federal Housing Finance Agency Dana Rooney, Inspector General, Federal Labor Relations Authority Jon Hatfield, Inspector General, Federal Maritime Commission Roslyn A. Mazer, Inspector General, Federal Trade Commission Carol F. Ochoa, Inspector General, General Services Administration Adam Trzeciak, Inspector General, Government Accountability Office The Honorable Daniel Levinson, Inspector General, Department of Health and Human Services The Honorable John Roth, Inspector General, Department of Homeland Security The Honorable David A. Montoya, Inspector General, Department of Housing and Urban Development Mary L. Kendall, Acting Inspector General, Department of Interior The Honorable Ron Johnson The Honorable Jason Chaffetz The Honorable Thomas R. Carper The Honorable Elijah E. Cummings Philip M. Heneghan, Inspector General, U.S. International Trade Commission The Honorable Scott Dahl, Inspector General, Department of Labor Jeffrey E. Schanz, Inspector General, Legal Services Corporation Kurt W. Hyde, Inspector General, Library of Congress The Honorable Paul K. Martin, Inspector General, National Aeronautics and Space Administration James Springs, Acting Inspector General, National Archives and Records Administration James Hagen, Inspector General, National Credit Union Administration Tonie Jones, Inspector General, National Endowment for the Arts Laura Davis, Inspector General, National Endowment for the Humanities Joseph Composto, Inspector General, National Geospatial-Intelligence Agency David Berry, Inspector General, National Labor Relations Board Adam G. Harris, Inspector General, National Reconnaissance Office Dr. George Ellard, Inspector General, National Security Agency The Honorable Hubert T. Bell, Inspector General, Nuclear Regulatory Commission The Honorable I. Charles McCullough, III, Inspector General, Office of the Inspector General of the Intelligence Community Page 5 The Honorable Patrick E. McFarland, Inspector General, Office of Personnel Management Jack Callender, Inspector General, Postal Regulatory Commission David Williams, Inspector General, U.S. Postal Service The Honorable Martin J. Dickman, Inspector General, Railroad Retirement Board Carl W. Hoecker, Inspector General, Securities and Exchange Commission The Honorable Peggy E. Gustafson, Inspector General, Small Business Administration Cathy Helm, Inspector General, Smithsonian Institution The Honorable Patrick P. O'Carroll, Inspector General, Social Security Administration John F. Sopko, Special Inspector General, Special Inspector General for Afghanistan Reconstruction The Honorable Christy Romero, Special Inspector General, Special Inspector General for the Troubled Asset Relief Program The Honorable Richard Moore, Inspector General, Tennessee Valley Authority The Honorable Calvin L. Scovel, III, Inspector General, Department of Transportation The Honorable Eric M. Thorson, Inspector General, Department of Treasury Linda Halliday, Deputy Inspector General, Department of Veterans Affairs