[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]





THE OFFICE OF INSPECTOR GENERAL AND ITS ONGOING FAILURE TO COMPLY WITH 
         A SUBPOENA FOR DOCUMENTS ABOUT A RECENT INVESTIGATION

=======================================================================

                           OVERSIGHT HEARING

                               before the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                      Thursday, September 11, 2014

                               __________

                           Serial No. 113-89

                               __________

       Printed for the use of the Committee on Natural Resources

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                     COMMITTEE ON NATURAL RESOURCES

                       DOC HASTINGS, WA, Chairman
            PETER A. DeFAZIO, OR, Ranking Democratic Member

Don Young, AK                        Eni F. H. Faleomavaega, AS
Louie Gohmert, TX                    Frank Pallone, Jr., NJ
Rob Bishop, UT                       Grace F. Napolitano, CA
Doug Lamborn, CO                     Rush Holt, NJ
Robert J. Wittman, VA                Raul M. Grijalva, AZ
Paul C. Broun, GA                    Madeleine Z. Bordallo, GU
John Fleming, LA                     Jim Costa, CA
Tom McClintock, CA                   Gregorio Kilili Camacho Sablan, 
Glenn Thompson, PA                       CNMI
Cynthia M. Lummis, WY                Niki Tsongas, MA
Dan Benishek, MI                     Pedro R. Pierluisi, PR
Jeff Duncan, SC                      Colleen W. Hanabusa, HI
Scott R. Tipton, CO                  Tony Cardenas, CA
Paul A. Gosar, AZ                    Jared Huffman, CA
Raul R. Labrador, ID                 Raul Ruiz, CA
Steve Southerland, II, FL            Carol Shea-Porter, NH
Bill Flores, TX                      Alan S. Lowenthal, CA
Jon Runyan, NJ                       Joe Garcia, FL
Markwayne Mullin, OK                 Matt Cartwright, PA
Steve Daines, MT                     Katherine M. Clark, MA
Kevin Cramer, ND                     Vacancy
Doug LaMalfa, CA
Jason T. Smith, MO
Vance M. McAllister, LA
Bradley Byrne, AL

                       Todd Young, Chief of Staff
                Lisa Pittman, Chief Legislative Counsel
                 Penny Dodge, Democratic Staff Director
                David Watkins, Democratic Chief Counsel
                                 ------                                

















                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Thursday, September 11, 2014.....................     1

Statement of Members:
    Hastings, Hon. Doc, a Representative in Congress from the 
      State of Washington........................................     1
        Prepared statement of....................................     3
    Huffman, Hon. Jared, a Representative in Congress from the 
      State of California........................................     4
        Prepared statement of....................................     5

Statement of Witnesses:
    Kendall, Hon. Mary, Deputy Inspector General, U.S. Department 
      of the Interior............................................     6
        Prepared statement of....................................     7

Additional Materials Submitted for the Record:
    Department of the Interior memorandum dated March 27, 2014 to 
      Mary Kendall...............................................    14
    Department of the Interior memorandum dated September 5, 2014 
      to Mary Kendall............................................    15
                                     


 
 OVERSIGHT HEARING ON THE OFFICE OF INSPECTOR GENERAL AND ITS ONGOING 
    FAILURE TO COMPLY WITH A SUBPOENA FOR DOCUMENTS ABOUT A RECENT 
                             INVESTIGATION

                              ----------                              


                      Thursday, September 11, 2014

                     U.S. House of Representatives

                     Committee on Natural Resources

                             Washington, DC

                              ----------                              

    The committee met, pursuant to call, at 9:45 a.m., in room 
1324, Longworth House Office Building, Hon. Doc Hastings 
[Chairman of the Committee] presiding.
    Present: Representatives Hastings, Lamborn, Huffman and 
Sablan.

    STATEMENT OF THE HON. DOC HASTINGS, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF WASHINGTON

    The Chairman. The committee will come to order and the 
Chairman notes a presence of a quorum, which under Rule 3(e) is 
two members, and we have maxed that here today.
    The Committee on Natural Resources is meeting today to hear 
testimony on an oversight hearing titled ``Oversight of the 
Office of Inspector General and its Ongoing Failure to Comply 
With a Subpoena for Documents About a Recent Investigation.''
    Under Committee Rule 4(f), opening statements are limited 
to the Chairman and the Ranking Member. However, I ask 
unanimous consent to include any Members' opening statements in 
the hearing record if submitted to the clerk by the close of 
business today, and without objection, so ordered.
    I will now recognize myself for 5 minutes. There are long-
held concerns about the integrity and independence of the 
Department of Interior's Office of Inspector General under the 
leadership of the Deputy Inspector General, Mary Kendall. A 
committee report released last year highlighted several 
examples of mismanagement and their ongoing issues that 
continue to undermine the credibility of the OIG's work.
    The OIG is supposed to serve as an independent watchdog 
over the Department and report findings to Congress. Instead, 
Ms. Kendall has established an accommodating and deferential 
relationship between the OIG and the Department, hindering the 
OIG's ability to conduct impartial, independent work. The OIG 
is currently in violation of a congressional subpoena for an 
unredacted copy of their report and documents on the 
Department's rewrite of the 2008 Stream Buffer Zone Rule.
    Their report exposed mismanagement of the rulemaking 
process and significant ongoing problems. However, key parts of 
the report had been redacted including one section entitled 
``Issues With the New Contract.'' The committee has made 
multiple requests for this unredacted report and documents 
including the issuance of a subpoena, but the OIG refused to 
comply and says that the report is being withheld at the 
request of the Interior Department.
    Specifically, the Department's Office of the Solicitor 
reviewed the OIG's report and documents and identified what 
parts were to be redacted. Rather than serve as an independent 
watchdog of the Department, in this example, the OIG is now 
letting the Department call the shots. The OIG conducted a 2-
year investigation, then handed all of the documents of the 
investigation to the very Department that was the subject of 
the investigation and then allowed the Department to go line by 
line through the documents and decide what would be provided to 
Congress. That is astounding. The OIG has given control over to 
the Department and is allowing it to dictate what should be 
provided to Congress pursuant to a subpoena.
    The OIG claims that the redacted material consists of an 
ongoing deliberative process related to rulemaking, but the OIG 
report is not created as part of the rulemaking and is not used 
in the furtherance of rulemaking. The report and documents were 
created solely by the OIG and remain in the possession and the 
control of the OIG. That is why it was absurd when Ms. Kendall 
said that we should seek these documents from the Department. 
They are OIG documents.
    Further, the OIG has failed to provide any reason for such 
redaction. Though we have been informed that Ms. Kendall has 
asked the Solicitor's Office to prepare this, once again 
yielding her statutory power to the Department, she is supposed 
to be investigating. Finally, I am alarmed that the OIG appears 
to feel that it has to enter into a deferential relationship 
with the Department in order to have access to information. In 
a letter to the committee, Ms. Kendall wrote that in order to 
secure that level of access from the Department, the OIG, and I 
quote, ``has agreed to protect privileged information,'' end 
quote.
    Assistant Inspector General for Investigations, Robert 
Knox, testified before us in January saying, and I quote again, 
``The fear we have is if we don't show that respect, we may 
lose that access that we need for investigations and audits in 
the future,'' end quote. The IG Act provides unfettered access 
to documents and information in order for all Inspector 
Generals to have the necessary tools to maintain their 
independence and do their job as watchdogs. They shouldn't have 
to fear about not having access if they don't show them 
respect.
    Recently, 47 separate Inspector Generals wrote a letter to 
Congress reaffirming their authority under the IG Act to have 
access to all those agency records. Interestingly, Ms. Kendall 
did not sign this letter that defends the importance of the 
independent IGs.
    For over a year-and-a-half, I have been calling on 
President Obama to appoint a permanent IG for the Interior 
Department. It is ridiculous that the OIG has been without a 
permanent head for 5 years. The credibility of the OIG has been 
tarnished under the leadership of Ms. Kendall and immediate 
steps should be taken to restore the independence and the trust 
in the office.

    [The prepared statement of Mr. Hastings follows:]
  Prepared Statement of the Hon. Doc Hastings, Chairman, Committee on 
                           Natural Resources

    There are long-held concerns about the integrity and independence 
of the Department of the Interior's Office of Inspector General under 
the leadership of Deputy Inspector General Mary Kendall. A committee 
report released last year highlighted several examples of mismanagement 
and there are ongoing issues that continue to undermine the credibility 
of the OIG's work.
    The OIG is supposed to serve as an independent watchdog over the 
Department and report findings to Congress. Instead, Ms. Kendall has 
established an accommodating and deferential relationship between the 
OIG and the Department, hindering the OIG's ability to conduct 
impartial, independent work.
    The OIG is currently in violation of a congressional subpoena for 
an unredacted copy of their report and documents on the Department's 
rewrite of the 2008 Stream Buffer Zone Rule. Their report exposed 
mismanagement of the rulemaking process and significant ongoing 
problems.
    However, key parts of the report have been redacted, including one 
section entitled ``Issues with the New Contract.'' The committee has 
made multiple requests for this unredacted report and documents, 
including the issuance of a subpoena, but the OIG refuses to comply and 
says that the report is being withheld at the request of the Interior 
Department. Specifically, the Department's Office of the Solicitor 
reviewed the OIG's report and documents and identified what parts were 
to be redacted.
    Rather than serve as an independent watchdog of the Department, the 
OIG is now letting the Department call the shots.
    The OIG conducted a 2-year investigation, then handed all of the 
documents of the investigation to the very Department that was the 
subject of the investigation, and then allowed the Department to go 
line-by-line through the documents and decide what would be provided to 
Congress.
    It's astounding. The OIG has given control over to the Department 
and is allowing it to dictate what should be provided to Congress 
pursuant to a subpoena.
    The OIG claims that the redacted material consists of an ongoing 
deliberative process related to the rulemaking. But the IG report was 
not created as part of the rulemaking and was not used in the 
furtherance of the rulemaking. The report and documents were created 
solely by the OIG and remain in the procession and control of the OIG. 
That's why it was absurd when Ms. Kendall said we should seek these 
documents from the Department instead. They are OIG documents.
    Furthermore, the OIG has failed to provide any reason for each 
redaction. Though we've been informed that Ms. Kendall has asked the 
Solicitor's Office to prepare this--once again yielding her statutory 
power to the Department she is supposed to be investigating.
    Finally I'm alarmed that the OIG appears to feel that it has to 
enter into a deferential relationship with the Department in order to 
have access to information. In a letter to the committee, Ms. Kendall 
wrote that in order to secure that level of access from the Department, 
the OIG ``has agreed to protect privileged information.'' Assistant 
Inspector General for Investigations, Robert Knox, testified before us 
in January saying, ``The fear we have is if we don't show that respect, 
we may lose that access that we need for our investigations and audits 
in the future.''
    The IG Act provides unfettered access to documents and information 
in order for Inspector Generals to have the necessary tools to main 
their independence and do their jobs as watchdogs. They shouldn't have 
to ``fear'' about not having access if they don't show them respect.
    Recently, 47 separate Inspector Generals wrote a letter to Congress 
reaffirming their authority under the IG Act to have access to all 
agency records. Interestingly, Ms. Kendall did not sign this letter 
that defends the importance of independent IGs.
    For over a year-and-a-half I've been calling on President Obama to 
appoint a permanent IG for the Interior Department. It's ridiculous 
that the OIG has been without a permanent head for 5 years. The 
credibility of the OIG has been tarnished under the leadership of Ms. 
Kendall and immediate steps should be taken to restore the independence 
and trust of the office.

                                 ______
                                 

    The Chairman. With that, I will recognize, sitting in for 
the Ranking Member, Mr. Huffman from California.

   STATEMENT OF THE HON. JARED HUFFMAN, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Huffman. Thank you, Mr. Chairman and welcome back, Ms. 
Kendall.
    The Interior Department's Office of Inspector General found 
no evidence of misconduct or political interference in the 
ongoing Stream Protection rulemaking. Now, that should have 
been the end of it. It should have been case closed, but my 
Republican colleagues seem to have trouble accepting facts that 
contradict their conspiracy theories, so now we are badgering 
the investigator once again for not confirming what Republicans 
want to be true, but just isn't.
    The OIG's report and supporting documents provided to this 
committee, contain some redactions requested by the Department 
of Interior and according to the OIG, these redactions concern 
the substance of the ongoing Stream Protection rulemaking which 
the Department identified as predecisional and privileged. They 
are irrelevant, however, to the central question of whether the 
Interior Department officials acted improperly in this 
rulemaking and on that question, we have all the information we 
need.
    The Interior Department has produced roughly 14,000 pages 
of documents to this committee on the rulemaking. Contractors 
who worked on the rulemaking also provided the committee with 
25 hours of audio recordings, meetings with Federal regulators, 
and now we have the Office of Inspector General's findings, 
including supporting documents and interview transcripts with 
key players that are mostly unredacted.
    The OIG has told the Chairman that the still redacted 
information is irrelevant to the Majority's oversight interest. 
Ms. Kendall explained in a letter this past May that, quote, 
``When we become aware of fraud and other serious problems, 
abuses and deficiencies relating to the administration of 
programs and operations . . . we ensure such information is 
presented in a timely manner to the relevant congressional 
committees. . . As we have repeatedly advised, however, we did 
not find fraud or other serious problems with respect to the 
ongoing rulemaking process.''
    The OIG report confirmed the findings of a Democratic staff 
report issued more than 2 years ago. We have learned nothing 
new this entire Congress. So let me be clear: The Minority 
believes that congressional oversight is essential for a well-
functioning government, and where there is a legitimate well-
founded interest in executive branch documents, we would and 
will support and work with the Majority to obtain those 
documents.
    The problem here is this investigation has no purpose. The 
Majority has just demanded documents for the sake of demanding 
documents. It is another example where they seem to prefer to 
have the issue so we can fight about it instead of having the 
information. This is clearly wasteful. The Interior Department 
has spent more than $2 million and diverted roughly 34,000 
hours of staff time dealing with the Chairman's document 
demands, but it also threatens to erode our system of executive 
branch oversight, so there are much more serious implications 
to what we are doing here.
    The Inspector General's Office often sometimes faces 
difficulty obtaining access to records, especially privileged 
records, but this OIG has obtained memorandum from every 
Interior Secretary since Gale Norton directing Department 
employees to provide all requested information to the OIG, 
including privileged information.
    Now, if the OIG were to do as the Majority demands and 
release all information identified as privileged by the 
Department, it could comprise the ability of this Inspector 
General and future Inspector Generals to obtain sensitive 
information and conduct effective investigations in the future.
    The Chairman also has issued a whopping 11 subpoenas over 
the last two Congresses. Subpoenas are sometimes necessary, but 
when they are handed out like Halloween candy, their force is 
diminished and we in Congress become easier to ignore. That is 
especially true when the subpoenas are frivolous, like the one 
we are talking about here today.
    Indeed, it is telling that, at the end of this Congress, we 
are having a hearing about documents and nothing that actually 
matters to the American people. The sad truth is that the 
Majority's investigations have taught us nothing important; 
they have caused nothing to improve. We leave this Congress as 
we started, demanding documents without purpose and wasting 
everyone's time.
    I yield the balance of my time.
    The Chairman. I thank the gentleman for his statement.

    [The prepared statement of Mr. Huffman follows:]
Prepared Statement of Hon. Jared Huffman, a Representative in Congress 
                      from the State of California

    Thank you, Mr. Chairman.

    The Interior Department's Office of Inspector General found no 
evidence of misconduct or political interference in the ongoing Stream 
Protection rulemaking.
    That should have been case closed, but Republicans seem to have 
trouble accepting facts that contradict their conspiracy theories. So 
now we're here badgering the investigator for not confirming what 
Republicans know must be true--but isn't true.
    The OIG's report and supporting documents provided to this 
committee contain some redactions requested by the Interior Department. 
According to the OIG, these redactions concern the substance of the 
ongoing Stream Protection rulemaking, which the Department identified 
as pre-decisional and privileged.
    They are irrelevant, however, to the central question of whether 
Interior Department officials acted improperly in the Stream Protection 
rulemaking.
    On that question, we have all the information we need. The Interior 
Department has produced roughly 14,000 pages of documents to the 
committee on the Stream Protection rulemaking. Contractors who worked 
on the rulemaking also provided the committee with 25 hours of audio 
recordings of meetings with Federal regulators. And now we have the 
Office of Inspector General's findings, including supporting documents 
and interview transcripts with key players that are mostly unredacted.
    The OIG has told the Chairman that the still redacted information 
is irrelevant to the Majority's oversight interests. Ms. Kendall 
explained in a letter this past May that, quote, ``When we become aware 
of fraud and other serious problems, abuses, and deficiencies relating 
to the administration of programs and operations . . . we ensure such 
information is presented in a timely manner to the relevant 
congressional committees. . . As we have repeatedly advised, however, 
we did not find fraud or other serious problems with respect to the 
ongoing rulemaking process.''
    The OIG report confirmed the findings of a Democratic staff report 
issued more than 2 years ago. We have learned nothing new in this 
entire Congress!
    Let me be clear: The Minority believes that congressional oversight 
is essential for a well-functioning government. And where there is a 
legitimate, well-founded interest in executive branch documents, we 
would support and work with the Majority to obtain those documents.
    The problem here is that this investigation has no purpose. The 
Majority is just demanding documents for the sake of it.
    This is clearly wasteful--the Interior Department has spent more 
than $2 million and diverted roughly 34,000 hours of staff time dealing 
with the Chairman's document demands. But it also threatens to erode 
our system of executive branch oversight.
    Inspectors General often face difficulty obtaining access to 
records, especially privileged records. But this OIG has obtained 
memorandum from every Interior Secretary since Gale Norton directing 
Department employees to provide all requested information to the OIG, 
including privileged information.
    If the OIG did as the Majority demands and released all information 
identified as privileged by the Department, it could compromise the 
ability of the OIG to obtain sensitive information and conduct 
effective investigations in the future.
    The Chairman also has issued a whopping 11 subpoenas over the last 
two Congresses. Subpoenas are sometimes necessary, but when they are 
handed out like Halloween candy, their force is diminished and we in 
Congress become easier to ignore. That's especially true when the 
subpoenas are frivolous, like the one we are talking about here today.
    Indeed, it's telling that, at the end of this Congress, we are 
having a hearing about documents and nothing that actually matters to 
the American people. The sad truth is that the Majority's 
investigations have taught us nothing important. They have caused 
nothing to improve. We leave this Congress as we started: demanding 
documents without purpose and wasting everyone's time.

                                 ______
                                 

    The Chairman. Ms. Kendall, you have been here before. You 
know how this process works. Your full statement will appear in 
the record, but we would like you to keep your oral remarks 
within the 5 minutes. The green light means that you are doing 
well. When the yellow light comes on, it means you have a 
minute and when the red light comes on we would ask you to 
summarize your final point and then we can get to the question 
period.
    And with that, Ms. Kendall, you are recognized for 5 
minutes.

 STATEMENT OF THE HON. MARY KENDALL, DEPUTY INSPECTOR GENERAL, 
                U.S. DEPARTMENT OF THE INTERIOR

    Ms. Kendall. Thank you, Mr. Chairman, and good morning. 
Good morning, Congressman Huffman, and, I guess, that is it for 
the committee. I would say good morning to other Members.
    This committee has subpoenaed information from the Office 
of Inspector General regarding its Stream Protection Rule 
report that the Department of the Interior has claimed is 
privileged and should not be disclosed. My office has stated 
repeatedly that this dispute is between the committee and DOI, 
not the OIG, and we have urged the committee to engage with DOI 
to resolve this issue.
    Instead, the committee has continued to pressure the OIG to 
release privileged documents and information that, if released, 
would not only jeopardize the OIG's ability to obtain 
privileged information from DOI in the future but would also 
exacerbate an existing problem in the IG community regarding 
timely access to information and documents from their agencies 
and departments.
    We have explained repeatedly that the claim of privilege is 
DOI's to assert, not the OIG's. We have also made this position 
clear to DOI which concurs that it alone has the responsibility 
and authority to resolve the issues in dispute. We also 
explained that we have a longstanding understanding with DOI 
that it would not decline to provide privileged information to 
the OIG, so long as we give DOI an opportunity to identify 
cognizable privileges, as it has here.
    We have also expressed our concern that release of 
privileged information, in this instance by the OIG, would 
seriously impair our access to the same in the future. Of even 
greater concern is that to release information against the 
assertion of privilege by DOI would add to the argument that 
other Federal agencies and departments would use to withhold 
information from their respective OIGs. This is not simply my 
assessment. It is a conviction shared by my colleagues in other 
IG offices.
    I find it curious that this committee is pressuring my 
office to do something that would jeopardize access in the 
future for itself and other OIGs, while your colleagues in both 
the House and Senate, in a bipartisan letter to OMB, have 
expressed their concern about the difficulties that Inspectors 
General have encountered in trying to obtain documents from 
their respective agencies.
    In fact, the Senate Judiciary Committee held a bipartisan 
hearing on Tuesday and the House Oversight and Government 
Reform Committee held its second bipartisan hearing just 
yesterday on this very issue. Like the witnesses at these 
hearings, we acknowledge that the IG Act is very clear, that 
IGs are to have access to all documents and information 
applicable to the department or agency they oversee.
    As a practical matter, however, other OIGs have had 
significant difficulty in gaining access to documents and 
employee interviews regardless of this statutory provision. 
Whether privilege is properly asserted by DOI in this matter 
involving ongoing rulemaking, can only be resolved between this 
committee and the Department or through litigation in Federal 
Court. The OIG has not taken a position in this dispute but has 
been placed squarely in the middle of it by this committee.
    Our position that the information at issue is the 
Department's to claim and defend privilege for is also 
consistent with the position of other IG offices. We are not 
aware of any other congressional committee issuing subpoenas to 
an Inspector General to obtain departmental or agency documents 
or information. I again urge this committee to use the 
procedural tools available to it to pursue access to documents 
and information from the Department of the Interior rather than 
pressure the OIG to take action that would jeopardize our 
ability to do our job in the future as well as the abilities of 
our OIG colleagues to do their jobs.
    The information that remains at issue is the Department's, 
not the OIG's; the assertion of privilege is the Department's, 
not the OIG's; and the waiver of the privilege is the 
Department's, not the OIG's. I will do my best to answer 
questions that Members may have.

    [The prepared statement of Ms. Kendall follows:]
   Prepared Statement of Mary L. Kendall, Deputy Inspector General, 
                       Department of the Interior

    This hearing arises out of a series of letters dated December 23, 
2013, March 13, 2014, April 16, 2014, and July 18, 2014, and a subpoena 
dated March 25, 2014, issued by this committee to the Office of 
Inspector General (OIG) for the Department of the Interior (DOI) 
seeking documents and information concerning an OIG investigation 
regarding the Stream Protection Rule that is being promulgated by DOI. 
The OIG has responded in detail to each of these letters and to the 
subpoena in letters of our own.
    To summarize the position of my office, this committee has 
subpoenaed information from our Stream Protection Rule report that DOI 
has claimed is privileged and should not be disclosed. This dispute is 
between the committee and DOI, not the OIG, and we have urged the 
committee to engage with DOI to resolve this issue. Instead, the 
committee has continued to pressure the OIG to release privileged 
documents and information that, if released, would not only jeopardize 
the OIG's ability to obtain privileged information from DOI in the 
future, but would also exacerbate a problem in the IG community 
regarding timely access to information from their agencies and 
departments.
    We have explained repeatedly that the claim of privilege is DOI's 
to assert--not the OIG's--and we have repeatedly asked that the 
committee attempt to resolve the issue with DOI. We also explained that 
we have a long-standing understanding with DOI that it would not 
decline to provide privileged documents to the OIG so long as we gave 
DOI an opportunity to identify cognizable privileges, as it has here. 
We have also repeatedly expressed our concern that release of 
privileged information in this instance by the OIG will seriously 
impair our access to the same in the future.
    Of even greater concern is that to release information against the 
assertion of privilege by DOI would add to the argument that other 
Federal agencies and departments would use to withhold information from 
their respective OIGs. This is not simply my assessment; it is a 
conviction shared by my colleagues in other IG offices.
    It is curious that this committee is pressuring the OIG to do 
something that would jeopardize access in the future for itself and 
other OIGs while your colleagues in both the House and Senate, in a 
bipartisan letter to OMB, have expressed their concern about the 
difficulties that Inspectors General have encountered in trying to 
obtain documents from their respective agencies.
    The Chairman's letters have contended that a claim of executive 
privilege has not been asserted as a basis for the continued 
withholding of the subject information. This contention fails to 
recognize how the executive branch asserts a claim of executive 
privilege. We have noted that every President since Lyndon Johnson has 
asserted executive privilege in shielding documents from Congress. The 
practice of recent administrations is that only the President can 
assert executive privilege and will only do so after receiving a 
recommendation from the Attorney General. The current practice also 
involves efforts to resolve disputes through a judicially recognized 
process of accommodation. This process has been described by one 
Attorney General as: ``The accommodation required is not simply an 
exchange of concessions or a test of political strength. It is an 
obligation of each branch to make a principled effort to acknowledge, 
and if possible to meet, the legitimate needs of the other branch'' 
(Assertion of Executive Privilege, 5 Op. O.L.C. 27, 31 (1981)).
    Whether privilege is properly asserted by DOI in this matter 
involving ongoing rulemaking can only be resolved by the parties to the 
dispute--this committee and the Department--or through litigation in 
Federal Court. The OIG does not take a position in such a dispute; we 
note, however, that other administrations have claimed the privilege in 
the context of ongoing rulemaking. In 1981, Attorney General William 
French Smith recommended and President Reagan asserted executive 
privilege to subpoenas from a congressional committee for documents 
concerning ongoing deliberations regarding regulatory action by the 
Interior Secretary. (See Assertion of Executive Privilege, 5 Op. O.L.C. 
27.) As we have explained to the committee and committee staff multiple 
times, the OIG cannot usurp the President's power to assert executive 
privilege if other efforts to resolve the dispute fail.
    One of the Chairman's letters asserted that our actions to avoid 
getting pulled into an ongoing dispute between this committee and the 
Department is indicative of our lack of independence. We feel certain 
that the opposite is true--that our independence and neutrality in a 
dispute between the committee and the Department that has 
constitutional implications can only be advanced by the position we 
have repeatedly expressed: the information the committee seeks belongs 
to the Department, and the committee should be seeking that information 
from the Department, not from the OIG. We have also made this position 
clear to DOI, which concurs that it alone has the responsibility and 
authority to resolve the issues in dispute.
    Our position is also consistent with the position of other IG 
offices--if documents or information in the possession of the OIG that 
the agency claims as privileged is sought by a congressional committee, 
the OIG would refer the committee to the agency. We are not aware of 
any other congressional committee issuing subpoenas to an Inspector 
General to obtain departmental or agency documents or information.
    We recognize that the IG Act provides ``that each Inspector 
General, in carrying out the provisions of this Act, is authorized--to 
have access to all records, reports, audits, reviews, documents, 
papers, recommendations, or other material available to the applicable 
establishment which relate to programs and operations with respect to 
which that Inspector General has responsibilities under this Act.''
    As a practical matter, however, other OIGs have had significant 
difficulty in gaining access to documents and employee interviews 
regardless of this statutory provision, as was addressed in the January 
15, 2014 hearing before the House Committee on Oversight and Government 
Reform, Strengthening Agency Oversight: Empowering the Inspectors 
General. The testimony from this hearing makes clear that the language 
of the IG Act alone does not assure OIGs access to agency documents and 
information.
    The OIG for DOI is somewhat unique in that we secured a memorandum 
from every one of the Secretaries of the Interior since Gale Norton 
directing DOI employees to provide all requested information to the 
OIG, including privileged information. The OIG, in order to facilitate 
such access, has agreed to review such privilege assertions and 
determine whether such claims have a constitutional basis and are 
consistent with prior assertions by the executive branch.
    The OIG's unique situation was even noted in the Staff Report for 
Chairman Darrell E. Issa, House Committee on Oversight and Government 
Reform, and Chairman Lamar Smith, House Committee on Science, Space and 
Technology, entitled Whistleblower Reprisal and Management Failures at 
the U.S. Chemical Safety Board, dated June 19, 2014. The report notes 
that the disclosure of privileged information to an OIG would not waive 
privilege because the OIG is technically part of its department or 
agency. The issue of providing privileged information to the OIG was 
also recently cited in an August 5, 2014 letter to Congress, signed by 
47 IGs, which said: ``While valid privilege claims might in certain 
circumstances appropriately limit the . . . OIG's subsequent and 
further release of documents, a claim of privilege provides no basis to 
withhold documents from the . . . OIG in the first instance'' (emphasis 
added).
    I again urge this committee to use the procedural tools available 
to it to pursue access to documents and information from the Department 
of the Interior, rather than pressure the OIG to take action that would 
jeopardize our ability to do our job in the future, as well as the 
abilities of our OIG colleagues to do their jobs. The information that 
remains at issue is the Department's, not the OIG's; the assertion of 
privilege is the Department's, not the OIG's; and the waiver of 
privilege is the Department's, not the OIG's.

                                 ______
                                 

    The Chairman. I will recognize myself for the purpose of 
questioning now.
    In my opening statement, I made an observation of my 
understanding. In your opening statements you made an 
observation of your understanding. In several letters, Ms. 
Kendall, to this committee and again in your written testimony 
today, you articulate several conflicting viewpoints about the 
position you are taking on behalf of the Department.
    On the one hand, you state that you are, and I quote, ``not 
taking a position,'' end quote, of whether these documents are, 
in fact, privileged. Yet, you also claim that the committee 
continues to, and I quote, ``pressure the OIG to release 
privileged documents,'' end quote, and spend several paragraphs 
explaining your understanding that these documents are, in 
fact, privileged.
    Now, let me be clear. Your office conducted an 
investigation and created a report of your findings. You have 
withheld these findings from the Congress in violation of the 
IG Act and in violation of this subpoena. Under the spurious 
claim that the information contained in the report that you 
drafted is privileged. You then claim that your office is not 
taking a position. However, the Department has not asserted a 
claim of privilege, and you have not asked this committee to 
hold the subpoena in abeyance while the claim of executive 
privilege is asserted by the Department.
    Your claims that you are being put in the middle of a 
disagreement between this committee and the Department, in my 
view, is disingenuous. The committee has subpoenaed a report 
that your office, your office, OIG, within the Department of 
Interior drafted, not documents that were used in the ongoing 
rulemaking. If the Department had sought a claim of executive 
privilege of these documents and then the committee subpoenaed 
you for them, that would be a different situation. Here, the 
Department simply told you what they wanted withheld, and you 
obliged. You even had the Department make the redactions for 
you.
    So let me ask you this, these are very simple questions: 
Has the Department sought a claim of executive privilege from 
the White House regarding these documents?
    Ms. Kendall. Mr. Chairman, not that I know of, but that 
would be a question that would need to be asked of the 
Department.
    The Chairman. So as far as you know, that has not been 
done?
    Ms. Kendall. As far as I know.
    The Chairman. Is anything preventing the Department from 
seeking a claim of privilege from the White House?
    Ms. Kendall. Not that I know of, Mr. Chairman.
    The Chairman. Have you asked the Department to assert a 
claim of privilege on these documents?
    Ms. Kendall. Mr. Chairman, I have asked the Department to 
provide me a document that expresses their position on this 
information.
    The Chairman. I didn't ask you that. Have you asked the 
Department to assert a claim of privilege on these documents 
that we are asking, that we subpoenaed?
    Ms. Kendall. It is not my position to do so, sir.
    The Chairman. So you haven't asked, then, obviously.
    Ms. Kendall. No I have not.
    The Chairman. Have you told the Department that absent a 
valid claim of privilege that you are compelled to comply with 
the congressional subpoena?
    Ms. Kendall. Mr. Chairman, there is a process by which 
privilege is asserted----
    The Chairman. I didn't ask you that. What I asked you is, 
have you told the Department that absent a valid claim of 
privilege under the IG Act, you are compelled to comply with a 
congressional subpoena?
    Ms. Kendall. I believe it would be the committee's position 
to tell the Department that, not mine.
    The Chairman. I just find that answer--all right. I just 
don't know, let me ask one final question. I think I know what 
the answer is going to be, not satisfactory to me. Absent a 
valid assertion of executive privilege, are you not compelled 
to comply with the validly issued congressional subpoena?
    Ms. Kendall. Absent a valid assertion, I would say yes, but 
in this case, the Department has provided information to us 
that----
    The Chairman. But it is not an assertion of executive 
privilege. Is that correct?
    Ms. Kendall. Mr. Chairman, I would be glad to provide you 
the documents that the Department has provided us and you can 
make your own decision on whether it is valid or not.
    The Chairman. I am not--all right.
    Ms. Kendall, you can tell that I am a bit frustrated 
because what we are asking is, again, just for the record, 
something that your office created.
    Ms. Kendall. I understand that.
    The Chairman. And the Office of the Inspector General was 
created long before I came to Congress to have, quote, 
``independent oversight and access to all documents so that 
Congress in their responsibility to review issues would have 
that information.'' You have done that in your IG investigation 
of the previous rulemaking. And that is what we are asking 
about. That is all we are asking about.
    My time has expired. I recognize the gentleman from 
California.
    Mr. Huffman. Thank you, Mr. Chairman.
    I think we need to be very precise with some of these words 
that really have legal significance, so I want to follow up on 
the Chairman's point about whether findings that you made in 
your investigation were actually withheld or redacted, as 
opposed to information that may have been the subject of a 
claim of privilege by the Department.
    So Ms. Kendall, let me ask you just very directly, did you 
make any findings that were withheld or redacted from this 
committee?
    Ms. Kendall. No, sir.
    Mr. Huffman. I thought so.
    Ms. Kendall, the Inspector General Act requires you to keep 
the Secretary of Interior and Congress fully informed 
concerning fraud and other serious problems, abuses, 
deficiencies relating to the administration, programs and 
operations. However, the information the Majority is demanding 
from you does not concern anything close to that standard of 
seriousness; is that correct?
    Ms. Kendall. That is correct.
    Mr. Huffman. And so had you found misconduct, deficiencies, 
et cetera, as specified in the Act, would you have reported 
that information to this committee?
    Ms. Kendall. In the ongoing rulemaking, yes, I would have.
    Mr. Huffman. But you made no such findings?
    Ms. Kendall. No, we did not.
    Mr. Huffman. I think it is important to remember, as we 
have this disagreement about documents and assertions of 
privilege by the Department, that the underlying rulemaking 
that has been targeted by the Majority is a Stream Protection 
Rule involving the practice of mountaintop removal mining.
    It is a practice that is destroying Appalachian 
communities, threatening public health, devastating the 
environment and there is no doubt that the rulemaking would 
probably require the coal industry to do some additional things 
to protect the environment and public health in Appalachian 
communities. Yet we have so changed the subject and gotten so 
wrapped around the axle that that fundamental point has been 
lost.
    I want to thank you for your patience and for your 
appearance before this committee, and I would yield the balance 
of my time.
    The Chairman. The Chair recognizes the gentleman from 
Colorado, Mr. Lamborn.
    Mr. Lamborn. Thank you, Mr. Chairman. Thank you for having 
this important hearing.
    Ms. Kendall, the investigation your office conducted shows 
that contractors were asked to change numbers, that this 
occurred after the job loss numbers were leaked, and that OSM 
spent millions of dollars and several years to have nothing to 
show for it. The report also discussed other, quote, ``issues 
with the new contract,'' unquote, issues that you have 
determined Congress has no right to know about.
    We have repeatedly asked you to provide the report your 
office prepared in accordance with the requirements of the 
Inspector General Act; you have repeatedly refused to do so. A 
subpoena was issued on March 25 of this year for the unredacted 
version of the report your office created. Although you have 
written letters back, on Tuesday you provided a few more 
sentences, but most of what we are seeking is still missing.
    Now, apparently, you concede that these documents that we 
are subpoenaing were created by your office. Is that true?
    Ms. Kendall. That is true.
    Mr. Lamborn. That they were created during the course of 
your duties under the Inspector General's Act. Is that true?
    Ms. Kendall. Yes, sir.
    Mr. Lamborn. And that they remain in your possession, 
custody or control?
    Ms. Kendall. Yes, sir.
    Mr. Lamborn. OK. So here is what we have. You created a 
report using the authority under the IG Act and that same Act 
requires you to keep Congress fully and currently informed. By 
providing a different report to Congress, one that is heavily 
redacted, you have failed to keep Congress fully and currently 
informed.
    You are withholding documents at the request of the 
Department in violation of a subpoena. You and your general 
counsel have confirmed that the documents are in your 
possession, custody and control; and you have just reconfirmed 
that.
    To your knowledge, has the President exerted executive 
privilege over these documents?
    Ms. Kendall. To my knowledge, no.
    Mr. Lamborn. OK. And have you asked the Department to seek 
a claim of privilege?
    Ms. Kendall. I answered the Chairman about that; no, I have 
not.
    Mr. Lamborn. OK. Do you intend to comply with the subpoena 
that our committee has properly given to you?
    Ms. Kendall. Mr. Lamborn, I have asked the committee 
multiple times to seek this information from the Department. 
The information is contained in the OIG report, but the 
information is the Department's, not the OIG's.
    The Department has expressly said it would work with this 
committee to accommodate, and that is the process by which this 
kind of information is supposed to go through, but the 
committee has not engaged the Department in this particular 
instance since April of 2013.
    Mr. Lamborn. So we have no right to subpoena you?
    Ms. Kendall. You have subpoenaed me.
    Mr. Lamborn. Well, we have every right to do so. It was 
properly done. You have been under subpoena for 6 months now. 
You have failed to comply. You have not provided this committee 
with the documents we have properly sought for. I believe you 
should be held in contempt.
    Do you have any reason to say why you should not be held in 
contempt?
    Ms. Kendall. I certainly do, sir, because this information 
is the Department's. If I can go back to Mr. Issa's hearing 
yesterday, he said that the reason IG should get privileged 
information is because they are a part of the executive branch. 
I do not feel that I can, as a part of the executive branch, 
usurp the Department's claim of privilege or usurp the 
President's claim of privilege.
    Mr. Lamborn. Ms. Kendall, let me interrupt. We are asking 
for your report. Why can't you give us your report?

    Ms. Kendall. You are asking for the Department's 
information.

    Mr. Lamborn. No, we are asking for your report.

    Mr. Chairman, I yield back.

    The Chairman. Let me correct for the record that you just 
stated in response to a question from Mr. Lamborn that this 
committee has not interacted with the Department since April of 
2013.

    Ms. Kendall. On this issue.

    The Chairman. No, that is not correct. There has been--I 
don't know where you got that information. Where did you get 
that information?

    Ms. Kendall. Well, that was the last letter that I 
understood you sent to the Department.

    The Chairman. No, there have been discussions on the staff 
level with the Department on this. So----

    Ms. Kendall. I stand corrected.

    The Chairman. You stand corrected, all right.

    Now, you said that the Department gave you a reasoning of 
privilege, I think I heard you say that, of why you should not 
give your report to us. Would you clarify what I thought I 
heard you say in my initial line of questioning?

    Ms. Kendall. Yes, sir. The Associate Solicitor for General 
Law, Ed Keable, has provided us with two memoranda that express 
their position on these documents and expressly ask that we ask 
the committee to engage with them, not with the OIG, to resolve 
this issue. I would be happy to provide those documents to you.

    The Chairman. You have not provided them. When will you 
provide those to us, then?

    Ms. Kendall. I can provide them to you this afternoon, sir.

    The Chairman. All right. I wish you would do so.

    Ms. Kendall. I will do that.

    [The information follows:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
    
Memorandum

To: Mary Kendall, Deputy Inspector General

From: Edward T. Keable, Deputy Solicitor--General Law

Subject: Response to House Natural Resources Committee Subpoena Dated 
    March 25, 2014

The Department understands that the Office of the Inspector General 
(OIG) has received a subpoena dated March 25, 2014 from the House 
Natural Resources Committee (HNRC) demanding production of the 
unredacted version of the Report of Investigation (ROI) into the 
efforts of the Office of Surface Mining (OSM) to revise its Stream 
Protection Rule (SPR) and which the OIG provided to the Committee in 
redacted form on March 18, 2014; transcripts of interviews with OSM and 
other DOI employees and employees of contractors engaged by the OSM to 
assist in the drafting of the SPR; and investigating agents' notes 
concerning these interviews and other aspects of the ROI.

In response to earlier oversight requests, the Department previously 
reviewed the redacted information the Committee now demands through its 
subpoena and concluded that the information relates to the ongoing 
rulemaking process for the SPR. The information demanded relates to 
important Executive Branch confidentiality interests and is 
deliberative and pre-decisional information that, if provided to the 
Committee, could compromise the independence and integrity of the still 
on-going rulemaking process.

The Secretary of the Interior and the HNRC Chairman have also discussed 
the sensitivity of information related to the on-going rulemaking 
process. In a January 15, 2014, letter to the Chairman, the Secretary 
summarized that exchange: ``During our conversation, you acknowledged 
the Department's interest in protecting this information and I hope 
that our mutual understanding can form the foundation for us to work 
together in a way that respects our mutual Constitutional interests.''

The information now demanded of the OIG by the Committee in its March 
25 subpoena is the very same information the Committee Chairman has 
already agreed the Department has a cognizable interest in protecting 
from disclosure.

We therefore continue to respectfully request that you decline to 
produce to the Committee any information that relates to the ongoing 
rulemaking process for the SPR. We also request that you direct the 
Committee to Ms. Sarah Neimeyer, Director, DOI Office of Congressional 
and Legislative Affairs, regarding the Committee's interest in this 
information and to reach a mutually agreeable accommodation on this 
matter.

cc: Sarah Neimeyer, Director, DOI OCL

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Memorandum

To: Mary Kendall, Deputy Inspector General

From: Edward T. Keable, Deputy Solicitor--General Law

Subject: Response to House Natural Resources Committee Subpoena Dated 
    March 25, 2014

The Department understands that you have been invited to testify before 
the House Natural Resources Committee (Committee) on September 11,2014, 
regarding your response to the Committee's March 25, 2014, subpoena 
seeking production of the unredacted Report of Investigation (ROI) into 
the efforts of the Office of Surface Mining (OSM) to revise its Stream 
Protection Rule (SPR) and related documents.

In a March 27, 2014, memo, I informed you that the Department reviewed 
the redacted information sought in the subpoena and concluded that 
certain information relates to important Executive Branch 
confidentiality interests and is deliberative and pre-decisional 
information that, if provided to the Committee, could compromise the 
independence and integrity of the still ongoing SPR rulemaking process. 
I respectfully requested that you decline to produce to the Committee 
any such information that relates to the ongoing SPR rulemaking and 
asked that you refer the Committee to the Department to afford us the 
opportunity to reach an accommodation.

In response to what the Department understands to be the Committee's 
specific concerns about the appropriateness of some of the Department's 
requested redactions in the IG's initial response to the Committee, the 
Department has again reviewed the ROI and supporting documents and has 
agreed, as a part of the accommodation process between the Legislative 
and Executive branches, that factual assertions and some deliberative 
information that do not harm important Executive Branch interests may 
be revealed to the Committee. We have provided your staff with that 
information. However, the Department finds no reason to alter its 
conclusion about the release of the remaining deliberative, pre-
decisional information contained in those documents.

The Department has not yet announced the availability of a proposed 
rule, and internal, deliberative discussions among employees of the 
Department and its contractors about the SPR are ongoing. These 
discussions, which will determine the scope and content of the rule to 
be proposed, the alternatives to be considered, and appropriate 
environmental and economic analytical models to be employed, are the 
heart of the deliberative and pre-decisional information surrounding 
the SPR rulemaking that the Department seeks to protect.

The Department stands on solid legal ground in its efforts to protect 
its pre-decisional deliberations regarding the SPR. Courts have 
recognized that aspects of the deliberative process privilege have 
roots in the constitutional separation of powers. It has also been 
long-standing Executive Branch policy recognized by both political 
parties that protecting internal Executive Branch deliberations is one 
of the significant interests encompassed by the doctrine of executive 
privilege, and this confidentiality interest is heightened when the 
deliberations are ongoing. Thus, draft rulemaking documents prepared 
during the course of ongoing deliberations clearly fall within the 
scope of executive interests. The release of such information could 
severely compromise the independence and integrity of the Executive 
Branch's rulemaking process.

The Department therefore continues to respectfully request that you 
decline to produce to the Committee any information we have identified 
to you that relates to our executive interests in the ongoing 
rulemaking process for the SPR. I also again ask that you direct the 
Committee to Ms. Sarah Neimeyer, Director, DOI Office of Congressional 
and Legislative Affairs, regarding the Committee's interest in this 
information to afford the Department the opportunity to work with the 
Committee to attempt to accommodate their interests.

cc: Sarah Neimeyer, Director, OCL

                                 ______
                                 

    The Chairman. OK. That is all I have.
    Mr. Huffman.
    Mr. Huffman. Thank you, Mr. Chair.
    I would just note that if the Majority was interested in 
asking the Solicitor this question directly, she was sitting in 
the chair right next to you yesterday in a hearing.
    Ms. Kendall. I was hoping she would be here today, sir.
    Mr. Huffman. Yes, and that question was not posed. So I 
think we are left with a situation where the Majority has, for 
some reason, preferred to bring the Inspector General's Office 
before this committee to answer questions about assertions of 
privilege that were made by the Department, not by you, to 
disregard the fact that you have made finding after finding 
that there was nothing wrong found in your investigation with 
this rulemaking. You have shared those findings completely 
without redaction with the committee, and yet questions about 
the Department's assertions of privilege continue to be asked 
as if there is an issue or controversy here.
    So there is still no there there to this whole process, and 
I am sort of left with the statement I concluded with in my 
opening, that we have learned nothing, but we have sure spent a 
lot of time and money chasing documents.
    The Chairman. Gentleman yield back?
    Mr. Huffman. Yes.
    The Chairman. Chair recognizes the gentleman from Colorado, 
Mr. Lamborn.
    Mr. Lamborn. Thank you, Mr. Chairman.
    And before we go on, could the staff please put up on the 
screen Slide 1. OK.
    And that is what we were referring to earlier, Ms. Kendall. 
This is all that we have received from your report. Maybe there 
are a few words that were given on Tuesday, but basically that 
is what we are faced with, unfortunately.
    Now, we have discussed the IG Act a little bit already, but 
I have a question about a different section. Section 5 of the 
Act requires that you, quote, ``keep the head of the Department 
and the Congress fully and currently informed.'' You provided 
one version of a report to the Department and a different, less 
detailed version of that report to Congress, withholding vital 
information at their request. How does this decision comport 
with the requirement to keep Congress and the head of the 
Department fully and currently informed?
    And if the staff could put up Slide 6, please, with that 
specific language so we can all see it.
    Ms. Kendall. Congressman Lamborn, first, I would note that 
the previous exhibit was 2 pages out of a 30-page report and 
only one of them was heavily redacted. That pertains to the 
ongoing rulemaking which is an executive branch responsibility, 
and the Department has claimed that they have an interest in 
maintaining the privilege of deliberative process.
    And that is the only information relative to this entire 
report that we have been willing to accept as a claim of 
privilege.
    Mr. Lamborn. Now, how often does it happen that you provide 
separate reports, one to the Department and one to Congress?
    Ms. Kendall. Rarely.
    Mr. Lamborn. Rarely. In fact, this is probably a unique 
situation?
    Ms. Kendall. It is.
    Mr. Lamborn. OK. So we have one report provided to the 
Department and one to Congress. I don't see how you are in 
compliance with that requirement, that Congress be fully and 
currently informed.
    How do you determine what reports are included in the 
semiannual report to Congress that your office provides?
    Ms. Kendall. We include what we determine internally as 
significant reports. I understand this one was left out of our 
semiannual report inadvertently. I have been told by staff that 
it was not input into the system until October, which would 
have made it--it should have gone into the March semiannual 
report, but I have made sure that it will be in the semiannual 
report that we issue at the end of October, or at the beginning 
of October.
    Mr. Lamborn. OK. So you admit that that mistake was also 
made?
    Ms. Kendall. That mistake was made, yes.
    Mr. Lamborn. And will that report be in its full form that 
the Department received, or are you going to redact it again?
    Ms. Kendall. The semiannual report is a summary of reports, 
and it will contain the bulk of the information in summary form 
of this report.
    Mr. Lamborn. So we won't have the full and currently 
informed type of document that we are hoping to get?
    Ms. Kendall. Mr. Lamborn, we have a very significant 
differing opinion on that.
    Mr. Lamborn. We sure do.
    Let's see, one of the redacted versions of the report shows 
that the date is February 28, 2013. The report was not released 
until December 20, 2013, 10 months later. Why was that report 
so long in being released?
    Ms. Kendall. I don't personally know where the February 
date comes from, but our reports take a very long time to get 
released, going through a process of review and editing and 
then issuance.
    Mr. Lamborn. Was the Department providing input to you? Did 
they express concerns about the content that they wanted to 
suppress?
    Ms. Kendall. No, sir. When we issue a report to the 
Department, we issue it. They have, in the case of an 
investigative report, 90 days to respond to us.
    Mr. Lamborn. But this was 10 months. So their 90 days came 
and went and 10 months went by, 7 more months.
    Ms. Kendall. I don't know when the report was actually 
issued to the Department.
    Mr. Lamborn. Does every department that the Inspector 
General's Office deals with get that kind of opportunity to 
dictate what is released to Congress?
    Ms. Kendall. I don't know what other departments do or 
don't do, but in this case, there is, in my view, a valid 
assertion of deliberative process privilege that we needed to 
respect in order to prevent the problems that other IGs have 
about gaining access. I think it would significantly impair our 
ability if we released this information over the Department's 
assertion of privilege.
    Mr. Lamborn. So they are acting wrongfully, and you are 
taking it out on us?
    Ms. Kendall. I don't believe they are acting wrongfully, 
sir. I have asked the committee over and over to engage them on 
this very issue. It is their privilege to defend and to waive.
    Mr. Lamborn. Mr. Chairman, I yield back.
    The Chairman. Time of the gentleman has expired.
    The chair recognizes the gentleman from the Northern 
Marianas, Mr. Sablan.
    Mr. Sablan. Thank you very much, Mr. Chairman. And I yield 
my time to Mr. Huffman from California. Thank you.
    Mr. Huffman. I thank the gentleman.
    Could we put Exhibit 6 back up on the screen, please.
    The reason that we have a disagreement about this duty of 
the Inspector General to keep Congress fully and currently 
informed is because this exhibit is picking and choosing 
language from the statute.
    There is no obligation to keep Congress fully and currently 
informed about what you had for breakfast or every conversation 
that you had with anybody in the Department of Interior. The 
Act actually, if it were properly and fully quoted on this 
section, is quite specific on what you are supposed to keep 
Congress fully and currently informed about, and it specifies 
fraud, serious problems, abuses and deficiencies relating to 
the administration of programs and operations.
    So let's ask the question once again. I suspect the answer 
is still going to be the same. But Ms. Kendall, did you at any 
time find fraud, serious problems, abuses and deficiencies in 
your investigation?
    Ms. Kendall. No, sir.
    Mr. Huffman. Thank you.
    The Chairman. Ms. Kendall, clearly, there are differences 
of opinion here on the IG and your responsibility as Acting 
Inspector General, and clearly this issue is maybe larger 
system-wide simply by the mere fact that 47 IGs, roughly half 
of them, have signed letters saying that they are not getting 
the cooperation from the agencies over which they have 
responsibility. Now, that larger issue is certainly above the 
pay scale of this committee.
    But the question is, I guess, ultimately, is the Office of 
Inspector General, which was supposed to be independent, it was 
created again before I was here, any Member here was in the 
Congress, and it was designed as part of the oversight process, 
and when we feel as a committee, I mean, whatever information 
is given, the judgment of that information, whether it is valid 
or not, is really the committee.
    We ask for the information, and depending on what the 
subject matter is, if it is satisfactory, OK, it is 
satisfactory. But it sounds to me that what you are attempting 
to do or what your actions are from my point of view is you are 
acting as a referee and not allowing us to make the 
determination if it is important. I think that is very serious. 
I don't know where this leads.
    Mr. Huffman talked about the Stream Buffer Rule. I know 
that that was promulgated before he was elected. There is a lot 
of controversy about it, mainly because the Bush administration 
has spent 5 years dealing and coming up with a Stream Buffer 
Rule that was similarly thrown out, and a new one was put in 
place and then the contractors were fired. I mean, that is 
pretty serious business. And they were fired because 
information was leaked that it would cost jobs. Well, OK, boy, 
that has an affect on the economy. Shouldn't the people know 
why? And all we were asking about was your report of how that 
happened.
    Ms. Kendall. Mr. Chairman----
    The Chairman. We weren't asking about the rulemaking. You 
keep confusing that.
    Ms. Kendall. Except that our report does talk about what 
happened with the contractor who was not fired but their 
contract was let to expire. Our concern in looking at this, and 
we reported it out in the first 29 pages of the report, what 
happened to the contractor and whether or not there was 
improper political influence exerted over the contractor and 
the numbers. And we determined--well, we didn't determine, we 
just presented the facts, quite frankly.
    The Chairman. Well, there is a part there, however, I don't 
have it right in front of me, that says that trouble with the 
contractor, or something to the effect--yes, in fact, the part 
that is redacted is issues with the new contract.
    So, this issue, absent executive privilege, we think that 
that report should come to us. You have a different view. Maybe 
what you are going to give us as to what the Department in the 
memorandum, maybe that will enlighten us. Hope springs eternal. 
But I am confident that that probably will not happen.
    So if there is no further business to come before the 
committee, committee stands adjourned.

    [Whereupon, at 10:26 a.m., the committee was adjourned.]

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