[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
OBSTRUCTING OVERSIGHT: CONCERNS FROM INSPECTORS GENERAL
=======================================================================
HEARING
before the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 10, 2014
__________
Serial No. 113-153
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
______
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
DARRELL E. ISSA, California, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, JR., Tennessee CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina ELEANOR HOLMES NORTON, District of
JIM JORDAN, Ohio Columbia
JASON CHAFFETZ, Utah JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan JIM COOPER, Tennessee
PAUL A. GOSAR, Arizona GERALD E. CONNOLLY, Virginia
PATRICK MEEHAN, Pennsylvania JACKIE SPEIER, California
SCOTT DesJARLAIS, Tennessee MATTHEW A. CARTWRIGHT,
TREY GOWDY, South Carolina Pennsylvania
BLAKE FARENTHOLD, Texas TAMMY DUCKWORTH, Illinois
DOC HASTINGS, Washington ROBIN L. KELLY, Illinois
CYNTHIA M. LUMMIS, Wyoming DANNY K. DAVIS, Illinois
ROB WOODALL, Georgia PETER WELCH, Vermont
THOMAS MASSIE, Kentucky TONY CARDENAS, California
DOUG COLLINS, Georgia STEVEN A. HORSFORD, Nevada
MARK MEADOWS, North Carolina MICHELLE LUJAN GRISHAM, New Mexico
KERRY L. BENTIVOLIO, Michigan Vacancy
RON DeSANTIS, Florida
Lawrence J. Brady, Staff Director
John D. Cuaderes, Deputy Staff Director
Stephen Castor, General Counsel
Linda A. Good, Chief Clerk
David Rapallo, Minority Staff Director
C O N T E N T S
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Page
Hearing held on September 10, 2014............................... 1
WITNESSES
The Hon. Michael E. Horowitz, Inspector General, U.S. Department
of Justice
Oral Statement............................................... 6
Written Statement............................................ 9
The Hon. Arthur A. Elkins, Jr., Inspector General, U.S.
Environmental Protection Agency
Oral Statement............................................... 14
Written Statement............................................ 16
Ms. Kathy A. Buller, Inspector General, Peace Corps
Oral Statement............................................... 21
Written Statement............................................ 23
APPENDIX
Sept. 9, 2014, letter to Chairman Issa from OMB submitted by
Chairman Issa.................................................. 58
Aug. 5, 2014, letter to Reps. Issa, Cummings, Carper, and Coburn
from 47 IGs, submitted by Rep. Chaffetz........................ 61
Aug. 8, 2014, letter to OMB from Reps. Carper, Coburn, Issa and
Cummings, submitted by Rep. Walberg............................ 69
Statement for the record from The Institute of Internal Auditors. 71
OBSTRUCTING OVERSIGHT: CONCERNS FROM INSPECTORS GENERAL
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Wednesday, September 10, 2014
House of Representatives,
Committee on Oversight and Government Reform,
Washington, D.C.
The committee met, pursuant to call, at 9:30 a.m., in Room
2154, Rayburn House Office Building, Hon. Darrell E. Issa
[chairman of the committee] presiding.
Present: Representatives Issa, Mica, Turner, Duncan,
Jordan, Chaffetz, Walberg, Lankford, Amash, Meehan, Gowdy,
Woodall, Massie, Meadows, Bentivolio, DeSantis, Cummings,
Norton, Connolly, Cartwright, Duckworth, Kelly, Davis, Horsford
and Grisham.
Staff Present: Melissa Beaumont, Assistant Clerk; Molly
Boyl, Deputy General Counsel and Parliamentarian; David Brewer,
Senior Counsel; Ashley Callen, Deputy Chief Counsel for
Investigations; Sharon Casey, Senior Assistant Clerk; Steve
Castor, General Counsel; John Cuaderes, Deputy Staff Director;
Jessica Donlon, Senior Counsel; Adam Fromm, Director of Member
Services and Committee Operations; Linda Good, Chief Clerk;
Ryan Hambleton, Senior Professional Staff Member; Mark Marin,
Deputy Staff Director of Oversight; Ashok Pinto, Chief Counsel,
Investigations; Andrew Rezendes, Counsel; Laura Rush, Deputy
Chief Clerk; Jessica Seale, Digital Director; Andrew Shult,
Deputy Digital Director; Jonathan Skladany, Deputy General
Counsel; Peter Warren, Legislative Policy Director; Rebecca
Watkins, Communications Director; Tamara Alexander, Minority
Counsel; Meghan Berroya, Minority Deputy Chief Counsel; Krista
Boyd, Minority Deputy Director of Legislation/Counsel; Aryele
Bradford, Minority Press Secretary; Jennifer Hoffman, Minority
Communications Director, Chris Knauer, Minority Senior
Investigator; Juan McCullum, Minority Clerk; Dave Rapallo,
Minority Staff Director; Ilga Semeiks, Minority GAO Detailee;
and Mark Stephenson, Minority Director of Legislation.
Chairman Issa. The committee will come to order.
Without objection, the chair is authorized to declare a
recess of the committee at any time.
The Oversight Committee's mission statement is that we
exist to secure two fundamental principles. First, Americans
have a right to know that the money Washington takes from them
is well spent; and, second, Americans deserve an efficient,
effective government that works for them. Our duty on the
Oversight and Government Reform Committee is to protect these
rights. Our solemn responsibility is to hold government
accountable to taxpayers because taxpayers have a right to know
that the money Washington takes from them is well-spent. It's
our job to work tirelessly in partnership, citizens watchdogs
and, yes, the IG watchdogs, to deliver the facts to the
American people and bring genuine reform to the Federal
bureaucracy. This is our mission statement.
On August 5, 47 Inspectors General, two-thirds of the IG
community, sent an unprecedented letter to Congress describing
serious limitations on access to records that have recently
impeded the work of the Inspectors General. Section 6(a)(1) of
the Inspector General Act of 1978 requires agencies to provide,
and I quote, ``full and timely access to agency records to
their respective Inspector General.'' Anything less than full
cooperation, of course, is unacceptable.
These government watchdogs play a key role in improving the
government's efficiency, honesty, and accountability. They
conduct oversight and investigations and audits to prevent and
detect waste, fraud, and mismanagement within government
agencies. Their work often protects life of Federal workers and
the American people. They help Congress shape legislation and
target our oversight and investigative activities; but let
there be no doubt, they are executive branch employees who, in
fact, were created by an act of Congress and signed by a
president so that the tools that they provide are available to
the President of the United States to run our government
better.
The IGs have proven to be one of Congress's and the
American people's best investments. In the last fiscal year the
IG community used their 2.7 billion dollar budget to identify
potential cost savings to taxpayers totalling about 46 billion
dollars. That means that for every dollar in the total IG
budget, they identified approximately $17 in savings. Access is
key to that kind of savings.
But the let me make it very clear, many of the
investigations, including some you will hear today, are not
about money. They're far more valuable. They're about liberty.
They're about your government not trampling on your rights. So
when agencies withhold information and their records from these
watchdogs, it impedes their ability to conduct their work
thoroughly, independently and most of all, timely. It runs up
the cost to both sides of the ledger. The Inspectors General
spend many, many, many millions of dollars simply trying to get
access, while your government, the very same agency, spends
millions and millions of dollars on lawyers trying to impede.
This is one of the greatest wastes we could possibly have. When
agencies refuse or deny IGs access to agency records, it
undermines the intent of Congress and the IG's ability to
effectively oversee these respective agencies.
Today, we are going to hear from three widely respected IGs
who have faced serious challenges from their agencies to access
the necessary records to what they do in their work. At the
Justice Department, the Inspector General cannot gain access to
grand jury documents or national security-related documents
without approval and delay from the Deputy Attorney General of
the Federal courts. Requiring such permission compromises and
impedes IGs' investigations.
At the Chemical Safety Board, they have denied the EPA
Inspector General, Mr. Elkins, who is with us today, access to
certain documents on the basis of attorney-client privilege,
but who is the attorney and what is the privilege? Mr. Elkins
is, in fact, the same entity that is, in fact, the client. He
is, in fact, part of the defined client, which of course is the
EPA.
Further, several offices within the EPA itself, including
the EPA office of Homeland Security, have interfered with the
OIG's investigations themselves. And perhaps most disturbing to
me personally, and I spoke to the Vice President last night,
and I believe he was equally disturbed, at the Peace Corps they
have refused to provide the Inspector General, Ms. Buller,
access to information related to sexual assaults on Peace Corps
volunteers absent a memorandum of understanding.
Let's understand, last night we honored and celebrated the
20th anniversary of the enactment of violence against women,
designed to do just the exact opposite, to ask women to come
forward and report their assaults. If, in fact, the IG cannot
oversee a possible pattern of failure to protect women, then
are we to ask women to come forward with the record of their
assaults.
But in all instances, it is the committee's position that
these agencies should and must cooperate with the Inspectors
General's requests for information. During the 113th Congress,
the committee has investigated several instances, including the
ones facing these watchdogs in which agency leadership
undermined the effectiveness of the Inspectors General. The
committee has held several hearings on this issue and facing
these Inspector Generals over the past year. The committee has
also conducted a deposition of the Peace Corps general counsel
to address the access issue at the Peace Corps. It has not been
resolved, and quite frankly, I look forward to the departure of
the general counsel as part of the problem.
Neither this committee nor the IG committee should be
wasting time and resources attempting to gain access to records
which the IGs have not just a legal entitlement to, but a sworn
obligation to under the IG Act.
For nearly six years we have seen this administration make
unprecedented efforts, it says to fight transparency and block
investigations by journalists, Congress, but that's not what
we're here for today. We're not here because the press wants to
snoop. We're not here because Article 1, the Congress, is
trying to look over the shoulder of the President and his
administration. We're here because the more or less 12,000 men
and women who work for these IGs and the others not here today,
part of this President's team for efficiency, transparency,
and, in fact, an Honorable service by all, has not been getting
what they wanted.
It is my intention upon the end of this hearing to write
with my ranking member if at all possible, a letter to the
President, urging him to use his executive order capability to
resolve this question once and for all. Notwithstanding that, I
want to thank our three witnesses here today, and I want to
assure you of one thing, after you testify here today and for
all 47 IGs who wrote, I will be looking, I know my ranking
member will be looking, to make sure that, in fact, no
retribution, no punishment, is allowed for your coming forward
and expressing your concerns under your responsibility of the
IG Act.
With that, I would ask just one thing. We do have a
response from the executive office of the President, the Office
of Management and Budget, in response to Mr. Cummings and my
letter, and I will place it into the record at this time.
Without objection, so ordered.
Chairman Issa. And we recognize the ranking member for his
opening statement.
Mr. Cummings. Thank you, Mr. Chairman. I want to thank our
witnesses for testifying here today. I also want to thank the
chairman for calling this hearing.
Let me start off by saying that what the chairman said with
regard to retribution, I agree with. You have come; you do a
phenomenal job, a very important job, and every member of this
committee, both sides of the aisle, if we hear about any
repercussions from you being here, we will be on it and deal
with it effectively and efficiently.
Rooting out waste, fraud and abuse is a central tenet, of
this committee and we take this mission very seriously. I'm a
staunch defender of the IGs and the authorities.
And, for example, in 2013, I sent a bipartisan letter to
the President. I was joined by Chairman Issa as well as
Representative Chaffetz and Representative Tierney, the
chairman and ranking member of the National security
Subcommittee. In that letter we pressed the President to
finally nominate an Inspector General at the State Department,
a position that had remained vacant for five years. I have also
supported legislation to help IGs do their job more effectively
and efficiently, such as the IG Reform Act of 2008.
Last month after receiving the letter from 47 IGs, I co-
signed a letter with Chairman Carper and Ranking Member Coburn
of the Homeland Security Committee and the Government Affairs
Committee, as well as Chairman Issa. In that letter, we
expressed our bipartisan concern to the Office of Management
and Budget about access issues raised by three IGs testifying
here today from the Peace Corps, the Department of Justice and
the Environmental Protection Agency.
When Congress passed the Inspector General Act in 1978,
Section 6 of that legislation authorized IGs to have very broad
access to agency records. This provision was intended to give
IGs wide latitude to conduct their audits and investigations.
But Congress also included certain exemptions on the
legislation, some of which are at issue today. In addition,
some contend that other Federal laws may conflict with this
broad grant of authority, and that is also a concern that we
will be discussing today.
First we have the Peace Corps. In 2011 Congress passed and
the President signed the Kate Puzey Volunteer Protection Act.
This law requires the Peace Corps to establish a confidential
system for volunteers to report sexual assault crimes. When the
IG sought access to this data in order to prepare a report also
mandated by Congress, the Peace Corps raised a question about
providing the personally identifiable information of sexual
assault victims, which was supposed to be confidential.
On May 22, the agency and the IG signed a memorandum of
understanding providing the IG with access to all information
except personally identifiable information and explicit details
of the sexual assaults. I understand the disagreement does not
address all of the IG's access concerns, but I believe it is a
very good start when we have two potentially conflicting
statutes like this.
Next the Department of Justice Inspector General has
expressed concern that when he seeks access to sensitive law
enforcement information, such as grand jury and wire tap
information, he must go through a lengthy approval process at
the highest levels of the department. The IG's testimony for
today says the department has granted access to the records in
every case, but he contends that the lengthy delays erodes his
independence. According to the Department, several other
statutes restrict the release of sensitive information, such as
grand jury and wire tap material. So they must be carefully
analyzed, and we have to look at that.
My understanding is that the Department has now asked the
Office of Legal Counsel to review the issue. I applaud the IG
for working through this process with the agency, and I look
forward to OLC's review.
Finally, the Environmental Protection Agency IG has raised
two concerns. The IG reports said that the EPA's office of
Homeland Security has been denying the IG access to classified
threat material and failing to recognize the IG's statutory
authority over intrusions into EPA computer networks.
Democratic staff has been working with both sides to mediate
this issue, and on June 19, EPA Administrator McCarthy proposed
a framework for better cooperation. At this point my
understanding is that the IG still has issues with the
proposal, so I hope we can spend some time today hearing about
those concerns.
Lastly, the dispute between the EPA IG and the Chemical
Safety Board seems, at least to me, to be the most problematic.
The IG has been trying to obtain documents from the CSB
chairman, but the CSB still has not produced all of the
requested documents. This week the IG's office sent a letter
explaining that although the CSB has complied substantially
with the request, documents still remain outstanding. I hope we
can work with you closely on a bipartisan basis to solve this
issue.
Let me close by making one observation. As we have seen,
many of these issues involve several laws that appear to
conflict, and some have raised the possibility of legislative
fixes. I believe this idea should be considered very carefully.
Although I will not hesitate to pursue statutory clarification
if necessary, the last thing the IGs need is for legislation to
be introduced and fail, which could have the unintended effect
of diluting their authority.
For these reasons, Mr. Chairman, I appreciate your
commitment to work with me and my staff in developing
bipartisan and widely supported legislative reform proposals.
My staff and I have devoted tremendous efforts to helping IGs
do their work, and my goal has always been to try to solve the
challenges constructively.
And with that I yield back.
Chairman Issa. I thank the ranking member. All members will
have seven days to submit opening statements for the record.
Chairman Issa. We now welcome our distinguished panel of
witnesses. The Honorable Michael E. Horowitz is the Inspector
General of the U.S. Department of Justice. The Honorable Arthur
A. Elkins, Jr., is Inspector General of the U.S. Environmental
Protection Agency and the Honorable Ms. Kathy A. Buller is the
Inspector General of the Peace Corps.
Lady and gentleman, pursuant to the committee rules, would
you please rise to take the oath, and raise your right-hand.
Do you solemnly swear or affirm, that the testimony you
will give today, will be the truth, the whole truth, and
nothing but the truth?
Please be seated. Let the record reflect that all witnesses
answered in the affirmative.
Since you're all skilled professionals, and, Mr. Horowitz,
since you're less than 24 hours from a similar event, you know
that we'd like you to keep your opening statements to 5
minutes, summarize any way you can, and that your entire
opening statements will be placed in the record without
objection.
And with that, Mr. Horowitz, you're up.
WITNESS STATEMENTS
STATEMENT OF THE HON. MICHAEL E. HOROWITZ
Mr. Horowitz. Thank you, Mr. Chairman, Congressman
Cummings, members of the committee. Thank you for inviting me
to testify today at this very important hearing.
Access by Inspectors General to information and agency
files goes to the heart of our mission to provide independent
and nonpartisan oversight. That is why 47 Inspectors General
signed a letter late last month to Congress expressing their
concerns about this issue. I want to thank the members of this
committee for their bipartisan support in response to this
letter.
The IG Act adopted by Congress in 1978 is crystal clear.
Section 6(a) of the act expressly provides that Inspectors
General must be given complete, timely, and unfiltered access
to all agency records. However, since 2010, the FBI and some
other department components have not read Section 6(a) of the
act in that manner and therefore have refused our requests
during our reviews for relevant grand jury, wire tap, and
credit information in its files. As a result, a number of our
reviews have been significantly impeded. In response to these
legal objections, the Attorney General of the Department--or
the Department Attorney General, granted us permission to
access the records by making the finding that our reviews were
of assistance to them. They also have stated their intention to
do so in future audits and reviews. However, there are several
significant concerns with this process.
First and foremost, the process is inconsistent with the
clear mandate of Section 6(a) of the IG Act. The Attorney
General should not have to order Department components to
provide us with access to records that Congress has made clear
we have a right to review.
Second, requiring the Inspector General to obtain
permission from department leadership seriously compromises our
independence. The OIG should be deciding which documents it
needs access to, not the leadership of the agency that is being
overseen.
Third, while current Department leadership has supported
our ability to access records, agency leadership changes over
time, and our access to records should not turn on the views of
the Department's leadership.
Further, we understand that other Department components
that exercise oversight over Department programs and personnel,
such as the Department's office of professional responsibility,
continue to be given access to these same materials without
objection. This disparate treatment is unjustifiable and
results in the Department being less willing to provide
materials to the OIG, presumably because the OIG is statutorily
independent, while OPR is not. This disparate treatment again
highlights OPR's lack of independence from the Department's
leadership, which can only be addressed by granting the
statutorily independent OIG with jurisdiction to investigate
all alleged misconduct at the Department.
Indeed, the independent, nonpartisan project on government
oversight made the same recommendation in a report issued in
March of this year, and bipartisan legislation introduced in
the Senate would do just that.
This past May, the department's leadership asked the Office
of Legal Counsel to issue an opinion addressing the legal
objections raised by the FBI and other Department components.
It is imperative that the OLC issue its decision promptly
because the existing practice at the Department seriously
impairs our independence every day we do our work.
Moreover, in the absence of a resolution, our struggle to
access information in a timely manner continues to seriously
delay our work. It also has a substantial impact on the morale
of the OIG's auditors, analysts, agents, and lawyers, who work
extraordinarily hard every day. Far too often they face
challenges getting timely access to information, including even
with routine requests. For example, in two ongoing audits, we
had trouble getting organizational charts in a timely manner.
We remain hopeful that OLC will issue an opinion promptly that
concludes the OIG is entitled to independent access to the
records and information pursuant to the IG Act.
However, should an OLC opinion conclude otherwise and
interpret the IG Act in a manner that results in limits on our
ability to access information, we will request a prompt
legislative remedy.
For the past 25 years my office has demonstrated that
effective and independent oversight saves taxpayers money and
improves the Department's operations. Actions that limit,
condition, or delay access to information have substantial
consequences for our work and lead to incomplete, inaccurate,
or significantly delayed findings or recommendations. I cannot
emphasize enough how critical it is to get these pending access
issues resolved promptly.
Hopefully, OLC will issue shortly, an opinion finding that
6(a) of the IG Act means what it says, namely that the OIG is
entitled to have complete, timely, and independent access to
information in our agency's files.
This concludes my prepared statement. I'd be pleased to
answer any questions you may have.
Chairman Issa. Thank you, and you'll yield back the one
second.
Mr. Horowitz. I will yield back the one second.
Chairman Issa. Thank you.
[Prepared statement of Mr. Horowitz follows:]
[GRAPHIC] [TIFF OMITTED]
Chairman Issa. Mr. Elkins.
STATEMENT OF THE HON. ARTHUR A. ELKINS, JR.
Mr. Elkins. Good morning, Chairman Issa, Ranking Member
Cummings, and members of the committee.
I am Arthur Elkins, Inspector General for the Environmental
Protection Agency and the Chemical Safety and Hazard
Investigation Board. Thank you for inviting me to appear before
you today.
I would like to take this opportunity to publicly commend
the Office of Inspector General staff across the Federal
Government who work hard each day to carry out our important
mission. As the committee is aware, for more than a year this
OIG was confronted with a denial of access by the CSB. The
CSB's leadership asserted that the denial was based on
attorney-client privilege. We countered that such denial
violated Section 6(a)(1) of the Inspector General Act.
With that impairment of my office's ability to provide
oversight of the CSB continued, we resorted to the rarely
invoked 7-day letter. This committee held a hearing on the 7-
day letter and related issues on June 19 at which you stated
the CSB to turn over the documents to the OIG within a week.
The CSB since has produced several sets of documents to the
OIG. We have determined that the CSB has substantially but not
fully complied with our document request. However, the evidence
we have gathered demonstrates that there are additional
documents within the scope of our request the CSB officials
have not provided.
In addition to the CSB matter, the EPA office of Homeland
Security continues to impede the investigations of this OIG. We
provided testimony on that subject before this committee on May
7. While there are multiple facets to this problem, the crux is
this. The EPA asserts a belief that there is a category of
activity defined as, ``intelligence'' to which the OIG may have
access only if the EPA determines the OIG access is permitted.
This impairment by the EPA was ongoing when I arrived four
years ago, and it is still not resolved.
Now, I would like to discuss how well the IG Act is serving
the taxpayers of this country in accomplishing goals that
Congress set in passing it more than 35 years ago. On August 5,
I joined with 46 other IGs in sending a letter to this
committee, as well as other congressional members, discussing
the troubling pushback many of us have been experiencing from
our respective agencies when we seek mandated access to
employees and records. We asked Congress for a strong
reaffirmation of the original, and we believe, still existing
intent of the IG Act, that OIGs have unfettered access to all
agency information to assist us in obtaining prompt and
complete agency cooperation.
Mr. Chairman, questions about whether the IG Act is
accomplishing Congress's goals and whether the act needs
strengthening or clarification are not hypothetical to me. They
are questions with real-world impact on my ability to carry out
my mandated functions. You might think, therefore, that I would
say without reservation that the IG Act requires some
enhancements on access and agency cooperation.
However, I want all of us, IGs and Congress included, to be
very careful about what I am saying and what I am not saying on
this issue. The act as written is quite strong and quite clear.
It provides access to all agency information and all agency
employees. There are no exceptions, not for material that an
agency asserts cannot be further released outside of the OIG
once the OIG does receive it, and not for some piece of agency
activity that might happen to involve classified information.
No courts, no congressional committees, and no opinions
from the Department of Justice's Office of Legal Counsel have
given any cause for concern that the requirement for access to
all information means anything other than all. Any attempt to
clarify or strengthen that authority could only suggest that it
is not already strong and fully encompassing.
The IG Act hinges on the cooperation of an agency with its
IG. If there is not prompt and complete cooperation, the work
of the OIG is stifled. In this regard, the IG Act can be
compared to a house of cards. If you pull out the agency
cooperation card, the entire act collapses. I therefore urge
this committee to look at enforcement mechanisms for the access
and cooperation already required. The IG Act is fine as
written. The agency's ability to ignore the act without
consequence is the problem.
This OIG will be happy to work with your staff in concert
with the Council of Inspector Generals on integrity and
efficiency on solutions to address our access concerns. I
believe that Congress can send a strong and needed message
through legislative enhancements and other means that such
impairment will not be tolerated.
Mr. Chairman, this concludes my prepared statement, and I
will be pleased to answer any questions you or the committee
may have.
Chairman Issa. Thank you. And you yield back four seconds.
Mr. Elkins. Yes, I will. Thank you.
[Prepared statement of Mr. Elkins follows:]
[GRAPHIC] [TIFF OMITTED]
Chairman Issa. Ms. Buller.
STATEMENT OF KATHY A. BULLER
Ms. Buller. Chairman Issa, Ranking Member Cummings,
distinguished members of the committee, thank you for inviting
me to appear before you today and allowing me to summarize my
prepared statement.
You have asked me to testify about my office's difficulty
in obtaining access to agency documents. I testified about this
issue before your committee on January 15th, and while progress
has been made, thanks in part to your efforts, some challenges
remain.
Our access issues stem from the Peace Corps' interpretation
of the Kate Puzey Volunteer Protection Act of 2011 which
Congress enacted after serious reports that the agency failed
to adequately respond to volunteer victims of sexual assault.
To enhance the Peace Corps' response to sexual assaults, the
Kate Puzey Act mandates the creation of a restricted reporting
mechanism so that volunteers may confidentially disclose the
details of their assault and receive the services they need
without dissemination of their personally identifying
information.
Unfortunately, Peace Corps's general counsel has written a
legal opinion concluding the Kate Puzey Act overrides the IG
Act, causing the agency to establish policies and procedures
that deny OIG access to information. In the case of restricted
reports, the agency argues the Kate Puzey Act prohibits the
agency from disclosing to OIG any details of a sexual assault
or the victim's PII. However, the Kate Puzey Act authorizes
disclosure when required by law, and the law mandates an
extensive oversight role to my office.
In May my office entered into a formal agreement with the
agency to obtain some information from restricted reports. The
agreement can be terminated by either party at any time, but we
signed it so that we could get some information while
continuing to seek agency or congressional action. Although the
agreement improves our access, I am concerned about my office
having to enter into an agreement to get information we are
entitled to by law and that we need to do our jobs.
I am also concerned that the agency's legal opinion
authorizing it to withhold information from the OIG remains in
place. This legal opinion sets a dangerous precedent whereby an
agency may interpret a law as overriding the IG Act, forcing
its IGs to spend its limited resources and time wrangling with
the agency to obtain information.
Many have asked why we need full access to restricted
reports. The answer is simple. Without full access, we cannot
properly inform the agency or Congress whether the agency is
complying with the Kate Puzey Act and whether the agency's
response to sexual assaults is getting better or worse.
Furthermore, the Kate Puzey Act mandates that my office conduct
a case review of a statistically significant number of cases.
Without full access to information, it's very difficult for us
to complete this review and ensure that volunteers are
receiving the services that they need.
On August 5th, 47 IGs signed a letter to Congress
expressing concern over our access issues, recognizing the
implication of agencies refusing, restricting, or delaying IG
access to agency documents. In response to inquiries about the
letter, Peace Corps told the Washington Post it is, ``committed
to working with the Inspector General to ensure rigorous
oversight while protecting the confidentiality and privacy of
volunteers who are sexually assaulted,'' suggesting that
privacy and oversight are mutually exclusive. They are not.
My office is bound by the same confidentiality rules as the
agency. It is trained and experienced in handling sensitive
information, and there is no cited record of my office ever
mishandling such information. The agency has also suggested
that fewer volunteers would report sexual assaults if OIG had
access to the information, but when pressed for a factual basis
for this assertion, the agency had none.
As the Daily Beast reported, ``it's hard to imagine a case
where volunteers declined to report sexual assaults base the
agency's internal watchdog will be provided information to
determine there is no negligence or wrongdoing.'' The agency
argues its policies and procedures are victim centric, but what
could be more victim centric than providing independent
oversight of victims' care.
We ask that Congress reaffirm what is said in the IG Act.
The IG Act we also believe is very plain on its face, and the
legislative history also strengthens that intent, but there are
individuals like our general counsel, who have taken it upon
themselves to interpret another piece of legislation to
override that act. We request that Congress and this committee
take a look at reaffirming what the IG Act says and make sure
everybody is on the same page.
I thank you for asking me to testify before you, and I am
prepared to answer any questions.
Chairman Issa. Thank you. And you yielded back 12 seconds.
[Prepared statement of Ms. Buller follows:]
[GRAPHIC] [TIFF OMITTED]
Chairman Issa. So, I have never had a more professional
panel. I commend you all.
We do a lot of hearings here that are partisan. As you
know, this isn't one of them. So one of the challenges here is
asking the first and most difficult question, which is from
each of your experiences, when did this begin, and what do you
think the source is? And I just, to the extent that you can say
time and date, and if you will, accountable individual, who you
think is the decisionmaker, or the impediment, I'd like that
answer as succinctly as possible. Ms. Buller?
Ms. Buller. In my case I think it's very easy to pinpoint
the time and the person. The passage of the Kate Puzey Act and
mandating the restricted reporting I think was the impetus. The
person is the general counsel. Basically he has taken the
opportunity to interpret the Kate Puzey Act to impede our
access.
Chairman Issa. Mr. Elkins?
Mr. Elkins. In my case, you know, I have two agencies that
I oversee, the CSB and the Environmental Protection Agency. In
both cases I have to say that issues relative to access starts
at the top. With a clear message from the top that access will
be granted, it will be granted. To the extent that there is a
muddled message or the message is not clear, you end up in
situations that we have here today.
On the CSB side of the House, the issues started back in
2010, 2011. On the EPA side of the House, some of the issues
that we're dealing with today actually started before I even
came on board. So this has been an ongoing sort of matter.
But to answer your question directly, it starts at the top.
Clear message from the top, what the expectations are, that's
the way the rest of the troops will march. Thank you.
Chairman Issa. Mr. Horowitz?
Mr. Horowitz. Our issues started in 2010. It has continued.
It started in 2010 with the FBI raising objections. Other
components have now joined in, and there's a long list of them
that have said me too in terms of Section 6(a) of the act
doesn't mean what it says.
Chairman Issa. So what you're saying is, is it began with
the FBI thinking they could beat your oversight, but like any
infection, particularly a popular one, you're being shut out
systematically?
Mr. Horowitz. Correct. If there is a way to do that, that's
what happens.
Chairman Issa. Mr. Horowitz, yesterday you and I were
together over in Judiciary, along with a number of the members,
and I think you testified that on six occasions the Attorney
General or the Deputy Attorney General has intervened when
you've been denied and ultimately allowed you to get some of
the information. Is that correct?
Mr. Horowitz. That's correct. Approximately six.
Chairman Issa. Okay, so in your case it's delay and
impeding and, in fact, some of the benefits of an expedient
investigation more than outright denial; is that correct?
Mr. Horowitz. That's correct. It also compromises our
independence.
Chairman Issa. Mr. Elkins, in your case you continue, as I
understand, in spite of the ranking member and his staff's
efforts, to not get information, and that is a decision being
made by the agency head; is that right?
Mr. Elkins. Well, I can't say emphatically that it's coming
from the agency head.
Chairman Issa. I should say the agency head has not
intervened, and in some of these letters, ask her to do so.
That's what I was saying.
Mr. Elkins. And I think that's a fair characterization.
Chairman Issa. But ultimately that's the person who could
intervene?
Mr. Elkins. Absolutely. Absolutely.
Chairman Issa. Ms. Buller, in your case you site the
general counsel, but the general counsel is a referral point.
There is an agency head that also has not intervened?
Ms. Buller. Yes.
Chairman Issa. And I think if I can take Mr. Elkins and Ms.
Buller and bring your two statements together, which I think
are important for Mr. Cummings and myself, both, Mr. Elkins you
cautioned us not to attempt to clarify if you will and maybe
come up short and diminish what already is the law, while, Ms.
Buller, you clearly said this review, which is also going on at
Justice, begs the whole question of is 6(a), does it
notwithstanding other laws, mean what it says it means?
Now, Mr. Elkins, I'm coming back to you for that reason. If
either through executive action of the office of the President
or through congressional action, if we say, because we believe
that notwithstanding other laws, 6(a) in the IG Act means what
it says it means, does that both meet your test of not writing
new law on top of already good law, but at the same time
clarify the question so that there not be endless review by
agency heads, general counsels, and referrals to legal review?
Mr. Elkins. Yes. I think that would be quite helpful. That
message clearly without any wiggle room in it, coming from the
President, would help, absolutely.
Chairman Issa. Thank you and with that, I have used 12
seconds. I yield to the ranking member.
Mr. Cummings. I want to go back to what the chairman was
just asking.
So, Ms. Buller, as I have listened to you and I have read
your testimony, and I have thought about the issue here, the
personally identifiable information, it just seems like we
should be able to work that out some kind of way. I mean, have
you gotten any further than the memorandum of understanding?
Ms. Buller. We have the memorandum of understanding in
place, and we are hopeful that we can continue to do our work
with that memorandum of understanding, but there is, with the
legal opinion that's still in place, if there's another dispute
that comes up regarding what PII is or what explicit details of
the sexual assault is, we're going to be right back where we
started, going back and forth with the general counsel's office
trying to figure that out.
Mr. Cummings. Mr. Elkins, during your tenure as an
Inspector General, you worked with the EPA to identify ways the
agency can improve its management. For example, your office
released three reports in the past month that identify ways the
EPA can save money by improving its contracting processes and
oversight; is that right?
Mr. Elkins. That is correct.
Mr. Cummings. Your recommendations have led to many
successful reforms. For example, on July 22, 2014, your office
reported that the EPA implemented corrective action on all of
your recommendations regarding the EPA's nationwide monitoring
system that protects us from exposure to radiation; is that
right?
Mr. Elkins. That's correct, sir.
Mr. Cummings. Congress has also charged you with overseeing
the Chemical Safety Board which I want to ask you about. You
discussed in your testimony a long-term dispute with the CSB.
You also identified before the committee in June, testified
before the committee in June, about that issue. Your office is
investigating the use of personal email accounts by senior CSB
officials to conduct official business; is that right?
Mr. Elkins. That is correct, sir.
Mr. Cummings. On September 5, 2013, you sent a 7-day letter
to the CSB seeking email records but CSB refused to provide.
This is the only 7-day letter you have issued in your tenure as
Inspector General; is that right?
Mr. Elkins. That's correct.
Mr. Cummings. How long have you been Inspector General?
Mr. Elkins. Over four years now.
Mr. Cummings. After the committee's hearing, CSB provided
some documents, but on July 8, however, you informed the
committee that CSB still had not fully complied with your
request. You said the documents they provided were not fully
responsive. The attachments were not provided, and some
documents were redacted; is that right?
Mr. Elkins. That is correct.
Mr. Cummings. More recently CSB has provided additional
documents, including unredacted copies, and on September 8,
2014, you sent a letter to the committee saying, ``OIG
concludes that the CSB has substantially complied with our
document request. However, the evidence we have gathered
demonstrates that there are additional documents within the
scope of our request which CSB officials have not provided to
the OIG.'' So it sounds like CSB improved its cooperation
following the committee's hearing in June, but even that was
like pulling teeth. Is that a fair statement?
Mr. Elkins. That's a very fair statement.
Mr. Cummings. Well, I got to tell you, I think that this is
totally unacceptable. Can you tell us now specifically how you
know the CSB is withholding documents?
Mr. Elkins. Well, I'd like to think I have got a crack team
of investigators that ask good questions. And, you know, we
track the documents. We track the questions, and it's really
just matching it up. We ask certain questions. We take a look
to see if we have got a response, and if the response is not
there, there's a void. That's pretty much what we have got.
Mr. Cummings. Can you identify the categories of documents
that you believe are being withheld for the record so that we
can follow-up directly?
Mr. Elkins. Yeah, I can give you somewhat of a
characterization. For instance, there was you know, of course
the instance of using you know, email that's not government
email to conduct agency business. At one point in the process,
it was conveyed to us that there was a directive to CSB staff
not to do that, and then subsequent, we found emails that
suggested that after that date, it was still going on. So in
our mind, that suggests that you know, there is a disconnect
there, so that's one example.
Mr. Cummings. Last question. In the letter you sent on
Tuesday, you said you will be issuing a report of investigation
in the near future. What will the scope of that report be, and
when do you expect to issue it?
Mr. Elkins. Well, it will be a compilation of what we have
determined, you know, based on the facts of the case. At this
point, it appears to us that the CSB leadership was using means
other than Federal communication means to conduct agency
business, so that's where the report is likely to head.
In terms of when that report is going to be issued, I can't
give you an exact date, but I would say very shortly, maybe
within the next 90 days or so.
Mr. Cummings. Thank you very much, and we will follow-up.
Chairman Issa. Will the ranking member yield?
Mr. Cummings. Yes.
Chairman Issa. To clarify, Ms. Buller, did you ever ask on
this personally identifiable information and the details of
these sexual assaults, did you ever ask for in camera review
for your people to look at the documents without receiving
them?
Ms. Buller. No. That wouldn't have been permitted under the
general counsel's legal opinion.
Chairman Issa. The question is did you ask?
Ms. Buller. No.
Chairman Issa. Did you attempt to have something where you
would respect the fact that you wouldn't take possession but
you at least would review them.
Ms. Buller. No, we did not.
Mr. Cummings. Just one last question to follow-up.
Chairman Issa. Sure.
Mr. Cummings. You know, as I listen to your testimony, one
of the key--when I think about the conflict, and you said that
your agency has been used to handling very sensitive
information and keeping it confidential. I'm sure you made
those same arguments to the Peace Corps?
Ms. Buller. Yes.
Mr. Cummings. And what was the response? I mean, because we
have got government, public servants who want to do the right
thing, and the last thing your agency would be doing would be
going against yourself by revealing information identifying
somebody who may have been sexually assaulted. So, I'm just
wondering what happened there? Do you follow me? Is it that
they don't--do you think there's a distrust or----
Ms. Buller. The way that the Kate Puzey Act is drafted,
there are two exceptions on the disclosure. One is for one of
the exceptions that is enumerated, and the other is that if a
person files a restricted report, it won't automatically
trigger an investigative process.
Our general counsel basically interpreted the receipt by my
office of any information from a restricted report as doing
that, automatically triggering an investigative process, even
though we assured him that we are required to follow the law,
that if we got any restricted reported information, we would
not use it to trigger an investigation. It didn't seem to make
an impact on him, and he is the only person who has concluded
that the two laws conflict. When you read the two laws, there's
a way to interpret them that they don't.
Mr. Cummings. Very well. Thank you very much.
Chairman Issa. Thank you.
Mr. Mica.
Mr. Mica. Thank you, Mr. Chairman.
And thank you for holding this hearing, and I appreciate
the Inspector Generals testifying.
I guess with being the senior member of the committee and
having gone through almost all, half a dozen or so chairman and
hundreds of members who have been on the panel, you get a
little bit of institutional insight. I have never seen an
instance in my 21-plus years of 47 Inspector Generals coming
together and saying that their oversight was being obstructed.
Mr. Horowitz, do you know of any instance similar to this?
Mr. Horowitz. I don't.
Mr. Mica. Mr. Elkins?
Mr. Elkins. This is the first to my recollection.
Mr. Mica. Ms. Buller?
Ms. Buller. I don't recall any either.
Mr. Mica. Each of the instances which you've come here to
cite before us have different parameters. Some of them, there
could be questions, and I have seen some of your
recommendations for possible changes in legislation, and that
would be one way to resolve some of the issues.
I think, Mr. Horowitz, you have some recommendations about
some exemptions that are currently allowed that should be
excluded. I think you, Ms. Buller. Is that correct?
[Nonverbal response.]
Mr. Mica. Just answer yes, Ms. Buller.
Ms. Buller. Yes.
Mr. Mica. Mr. Elkins, with the EPA, it appears that the
actions taken by EPA in really ignoring you and allowing
whistleblowers and others to be intimidated, this has
undermined your position as Inspector General to conduct your
legitimate investigative oversight responsibilities. Would that
be a fair statement?
Mr. Elkins. Yeah, that would be a fair statement.
Mr. Mica. Uh-huh. The other thing that would concern me is
using some language or exceptions that are in the law and the
case of Justice and the Peace Corps to obstruct an
investigation or even worse, to cover up, particularly
concerned about the sexual abuse instances.
Now, some of these cases the staff have told me it may be
like Peace Corps worker on Peace Corps worker or some locals on
Peace Corps volunteers; is that the case?
Ms. Buller. Yes.
Mr. Mica. And again, it appears that it is sort of a
blatant coverup of sexual abuse cases that some might embarrass
the agency. I guess you expose yourself when you send people to
foreign lands or on any mission to locals or foreign nationals
taking advantage of American personnel.
How prevalent is the case of problems with Peace Corps
workers being involved in these instances?
Ms. Buller. Usually it's a host country national involved
in the assaults. From what we gathered, the information we
gathered, it's usually volunteer on volunteer or staff on
volunteer in about 4 percent of the cases.
Mr. Mica. In how many?
Ms. Buller. About 4 percent of the cases.
Mr. Mica. Four percent. Not huge, but it's very
embarrassing, I would imagine, to the agency.
And you know, again, I think we have a particular position
of responsibility to deal with that kind of action, and also I
think you should have that authority to uncover again what's
going on and expose it.
A couple of questions because the Inspector Generals have
been under attack for a number of years now. Several ways of
attacking, one, get rid of them. We went through that in the
beginning, and I remember Gerald Walpin, and he was removed. I
think the committee let it be known that that was not going to
be tolerated, although they did get away with that particular
instance.
Then not appointing Attorney Generals, I'm told there are
13 vacancies, 7 Presidentially appointed, about 15, 20 percent
of the Inspector General positions are vacant; is that about
right, Mr. Horowitz?
Mr. Horowitz. I think that's right.
Mr. Mica. You think. Mr. Elkins?
Mr. Elkins. I don't have the statistics.
Mr. Mica. You're not sure. Okay.
Ms. Buller. It sounds right.
Mr. Mica. Well, again these are the numbers that I have.
You don't appoint them. You try to get rid of them, and then
you don't cooperate with them and obstruct them. Those are all
very serious problems.
I appreciate, Mr. Chairman, your bringing this matter to
the attention of the committee.
Chairman Issa. And I thank you, Mr. Mica.
Mr. Mica. I will have further questions later on. Thank
you.
Chairman Issa. And the gentleman yields back.
We now go to Mr. Connolly.
Mr. Connolly. Thank you, Mr. Chairman, and thank you for
holding this hearing.
I find myself in firm agreement with yourself and with the
ranking member, your opening statements.
Ms. Buller, in my other committee, in the House Foreign
Affairs Committee, we actually, Judge Poe and I had some
legislation dealing with the Peace Corps and the whole issue of
sexual assaults and how best to handle that. There were a
series of investigations and investigative stories really that
were highlighted how poorly historically the Peace Corps had
heretofore frankly managed cases of sexual assault among
volunteers.
We introduced legislation to try to address that and so I'm
particularly concerned to find that today on the subject at the
Peace Corps, there isn't full cooperation with your office. So
that's the context in which I look at particularly the Peace
Corps issue and the role of the IG.
In January you testified before this committee and raised
concerns about access to Peace Corps information. Is that
correct?
Ms. Buller. Yes.
Mr. Connolly. And what was the nature of that testimony?
Ms. Buller. It was the same issue----
Mr. Connolly. Could you speak into the microphone? Thanks
so much.
Ms. Buller. It was the same issue that I am testifying
about today. It's the lack of access to restricted reported
information.
Mr. Connolly. Specifically in 2011, we passed the Kate
Puzey Volunteer Protection Act, to which I just referred,
requiring the Peace Corps to establish a restricted reporting
system giving volunteers the option to report sexual assaults
on a confidential basis.
Under the Puzey Act, the Peace Corps IG is required to
conduct a case review of a statistically significant of sexual
assault cases to evaluate the effectiveness of that policy and
to provide a report to Congress; is that true?
Ms. Buller. Yes.
Mr. Connolly. Due to the Peace Corps' interpretation of
that act, the agency, however, withheld from the IG certain
personal information about victims as well as sexually explicit
details about sexual crimes; is that correct?
Ms. Buller. Yes.
Mr. Connolly. On May 22, you and the agency signed a
memorandum of understanding. Under that agreement, the agency
agreed to provide you with access to all information related to
restricted reports other than clearly defined personally
identifiable information, and explicit details of sexual
assaults; is that correct?
Ms. Buller. Yes.
Mr. Connolly. Since that MOU has been in effect, has your
office requested any sexual assault case information under the
MOU from the Peace Corps agency?
Ms. Buller. We have requested crime incident reports for a
program evaluation that we were going to do.
Mr. Connolly. Did you say five?
Ms. Buller. No. Two. Well, we had one program evaluation,
and we requested all of the crime incident reports including
restricted reports for that country before we went into
evaluation. There were two reports. We did get both reports
with the redactions.
Mr. Connolly. With the appropriate redactions?
Ms. Buller. Yes.
Mr. Connolly. From your point of view?
Ms. Buller. According to the MOU, yes.
Mr. Connolly. Right. So since the MOU has been put into
effect, you have had requests, and you have found full
compliance on behalf of the agency?
Ms. Buller. Yes.
Mr. Connolly. Is it your expectation that the case
information that you did receive is useful to the work you're
undertaking?
Ms. Buller. It's useful to the particular program
evaluation we're doing at this particular point in time. The
problem that we have is when we are going to do our case review
for the Puzey-mandated work, it requires a statistic sampling
to do that, and the Peace Corps has no case management system,
so that everything is compiled in one place. We have records in
medical. We have records in the victim advocate office. We have
records all over the place, and we don't have any way to track
how a volunteer is treated after they've been assaulted because
there's no case management system.
Mr. Connolly. Even now?
Ms. Buller. Even now, yes.
Mr. Connolly. And would that case management rubric also
include legal actions? So for example, if somebody's been
sexually assaulted, presumably there's a legal case pending in
the host country?
Ms. Buller. If there is, it should be included in the
records, yes.
Mr. Connolly. But it's part of the case management problem,
I assume, that's also somewhere else?
Ms. Buller. If the case was actually taken into court it
would no longer be a restricted report, so we should have
access to that information anyway.
Mr. Connolly. And do you?
Ms. Buller. Yes, we do have access to non-restricted
reports. The problem is the default position for Peace Corps is
every report of sexual assault that's filed is automatically
restricted until a volunteer determines to make it otherwise,
so the universe of restricted reports is quite large.
Mr. Connolly. Thank you.
Mr. Chairman, I just want to end by saying this is a
particularly troubling case. Since Congress on a bipartisan
basis actually addressed this topic, the Peace Corps and the
incidence and management of sexual assaults on volunteers
abroad, and to find three years after passing that act that
we're still finding problems internally with the Peace Corps
that directly affect the victims because their cases aren't
being managed efficiently and properly and sympathetically, and
the IG has not had until the MOU.
Full cooperation from the agency is troubling indeed, and
to me circumvents the letter as well as the spirit of the law
Congress passed to try to address this very sensitive but real
issue affecting our Peace Corps volunteers.
Thank you, Mr. Chairman.
Mr. Walberg. [Presiding.] I appreciate your comments.
I now turn and recognize the gentleman from Utah, Mr.
Chaffetz.
Mr. Chaffetz. I thank the chairman.
And thank you, the three of you, for being here. You play a
vital role in the checks and balances and just good government,
and I thank you for your time and your dedication for you and
your staff.
I'd ask unanimous consent to enter into the record the
letter dated August 5, 2014. This is a letter to Chairman Issa,
Ranking Member Cummings, and Senators Carper and Coburn from
the 47 IGs.
Mr. Walberg. Hearing no objection, it will be entered.
Mr. Chaffetz. I want to read just three sentences from this
letter. The undersigned Federal inspectors general write
regarding the serious limitations on access to records that
have recently impeded the work of inspectors general at the
Peace Corps, the Environmental Protection Agency, and the
Department of Justice.
On page 2, last paragraph, ``Moreover, the issues facing
the DOJ OIG, the EPA OIG, and the Peace Corps OIG are not
unique. Other inspectors general have from time to time faced
similar obstacles in their work, whether on a claim that some
other law or principle trumps the clear mandate of the IG Act
or by the agency's imposition of unnecessarily burdensome
administrative conditions on access.''
It is extraordinary that 47 inspectors general have issued
this letter expressing this concern. But I'd also like to ask
unanimous consent to enter into the record a letter from the
Director of the Office of Management and Budget dated September
9, 2014.
Mr. Walberg. Without objection, it will be entered.
Mr. Chaffetz. Let me read a sentence here from that
response from the Director of the OMB, and then I'd like each
of you to please respond to it, because the administration
doesn't seem to think there's a problem. In this letter,
paragraph three, the last sentence says, ``Overall, the numbers
reported by the IGs demonstrate that Federal departments and
agencies in this administration value the work of IG offices
and are almost uniformly successful in getting them the
information they need to perform their responsibilities.''
This letter, if you were to read this letter, the Office of
Management and Budget issuing a letter a full month after the
47 IGs, they don't think there's a problem. How do you respond
to that sentence? We'll start with Mr. Horowitz.
Mr. Horowitz. I can only speak from experience and what
I've heard from other IGs, which is we have faced roadblocks in
several of our reviews. Untimely access, where we have gotten
it, it has taken a fair amount of time. I think the other IGs
have had their experiences. And I know from conversations with
fellow IGs, while they haven't had lawyers come forward and
say, we can't legally give it to you, they've had issues with
getting materials in a timely manner. That is a very
significant issue for us.
Mr. Chaffetz. So when it says ``almost uniformly
successful,'' how would you characterize what you're able to
access and get right now, particularly from the FBI?
Mr. Horowitz. It has been an extraordinarily difficult
issue for us for now several years to get prompt, timely access
to materials.
Mr. Chaffetz. Mr. Elkins.
Mr. Elkins. I think there is a disconnect, and I think that
statement that you just read capsulizes the disconnect. On the
one hand, I think what we have seen here is that we hear from
time to time that, well, there is substantial cooperation with
the OIG, I mean 80 percent, 90 percent of the time there's no
problems, you get what you ask for. But that assumes that the
other 10 to 20 percent of the time that we're not getting what
we ask for is okay, and that suggests it's a moving target, and
that's a very slippery slope.
And that is exactly, I think, why we're here today and
talking about these issues, because there is this assumption
that most of the time we cooperate, and that's where the focus
is at. But the real issue here is what about that 10 percent of
the time that there is no cooperation, and that seems to just
keep jumping around and jumping around. That's the problem, and
I think that message says that it's a broad problem with OMB
and a lot of agencies.
Mr. Chaffetz. Thank you, Mr. Elkins.
Ms. Buller.
Ms. Buller. I agree with my esteemed colleague. From our
perspective, we've had an agency issue opinions or issue
policies and procedures specifically stating that we can't have
access to something, so it's very difficult for me to
understand how it's not a problem. And I think the fact that 47
other IGs have at one time or another, maybe not all the time,
but one time or another had problems should be an indicator
that there is a problem.
Mr. Chaffetz. Well, thank you. Again, I appreciate the
great work that we do and look forward to hearing from you
further.
Yield back.
Mr. Walberg. I thank the gentleman.
And I recognize the gentleman from Pennsylvania, Mr.
Cartwright.
Mr. Cartwright. Thank you, Mr. Chairman. And thank you for
the inspectors general appearing here today.
As this committee has previously highlighted, the offices
of inspectors general are essential to the efficiency of our
Federal Government. They help hold agencies accountable,
identifying misconduct in programs and by personnel. They can
highlight the holy trinity of waste, fraud, and abuse,
guaranteeing that the American taxpayers get the most bang for
their buck.
The position of IG is a difficult position to hold, and IGs
are tasked with investigating alleged abuses among those with
whom they work. Now, of course, however, a balance has to be
struck between confidentiality and privacy rights of victims,
as well as whistleblowers, and the needs of the inspectors
general.
Ms. Buller, I listened to your testimony closely and also
your questioning by Representative Connolly. As you noted in
your written testimony, the OIG recently reached this
memorandum of understanding with the Peace Corps on how best to
comply with the Kate Puzey Peace Corps Volunteer Protection
Act. Obviously, many victims of sexual abuse and assault choose
to report that conduct anonymously out of fear of retribution
and for their safety in general.
And there's an irony, isn't there, in that the Kate Puzey
Act was intended to provide tighter oversight to make sure a
complainant's anonymity is protected. In fact, Kate Puzey
herself was murdered by her attacker when the Peace Corps
mishandled her complaint and her identity got out, and I think
Mr. Connolly has made that point. But there's this irony that
the Kate Puzey Act was intended to tighten oversight of the
confidentiality and at the same time now we hear that the Peace
Corps is saying that because of the need for confidentiality
they don't want to cooperate as much with the OIG. And I see
that.
And I think probably a good thing to do this morning, Ms.
Buller, would be for you to elaborate. You touched on it
briefly in your testimony about how professional your staff is
and how careful you are with anonymity. Will you elaborate
further and tell us more about systems and procedures in place
to protect anonymity?
Ms. Buller. Sure. All of my staff is required, as is Peace
Corps staff, to comply with all of the laws that protect
personal identifying information, such as the Privacy Act,
HIPAA, things of that nature. We are all required by law to
comply with those, the same way that Peace Corps staff is.
Furthermore, my investigators are trained investigators. We
must comply with all of the guidelines from the Attorney
General. We have full law enforcement authority. We participate
like any other law enforcement organization. And my evaluators,
when they go out to a post, they go to the volunteer site and
sit and interview individual volunteers, and they tell them
that they will not use their name because they're trying to
find out how well Peace Corps is actually supporting those
volunteers.
So they do not use their names. They aggregate information
and bring it back so that we can issue a report to the agency
to tell them that you have these problems in this area, that
volunteers don't feel supported in another area, things of that
nature. We are a very professional staff, and we do comply with
all of the federally mandated laws.
Mr. Cartwright. I thank you for that. And you did say in
your testimony there's never been an instance of the Office of
Attorney General being implicated in an improper disclosure of
an identity. Is that correct?
Ms. Buller. Yes.
Mr. Cartwright. And there never will be, will there?
Ms. Buller. No, there will not.
Mr. Cartwright. Well, I thank you for testifying here
today, and we take your testimony seriously.
Ms. Buller. Thank you.
Mr. Cartwright. Mr. Chairman, I yield back.
Mr. Walberg. I thank the gentleman.
Before I recognize myself for 5 minutes of questioning, I
would ask that an additional document that follows up the
preceding documents, a letter addressed to the Director of
Office of Management and Budget on these issues and signed by
our chairman and ranking member, as well as the corresponding
chairman and ranking member in the Senate, be introduced into
the record. Without objection, it will be introduced.
Mr. Walberg. I thank the witnesses for being here as well
and carrying on with this continued investigation to make sure
that your work is accomplished.
Mr. Horowitz, I still remember our first meeting in my
office when you came in after your appointment and how direct
you were about saying my job is to be the job that the OIG is
supposed to do and to get to the bottom of the issue regardless
of where we find ourselves, and I appreciate that.
Let me ask you a question relative to a fairly high profile
investigation that we've been involved with as well as you.
Were there restrictions or limitations on your ability to
access documents in your investigation into the Operation Fast
and Furious?
Mr. Horowitz. That's one of them, the investigations, where
the issue was first raised back in 2011 to our access.
Mr. Walberg. Did you have to make document requests in
writing?
Mr. Horowitz. We did, and the issues came up both in the
context of our request for grand jury information, which, as
you know, given the case was a criminal case, were many, as
well as wiretap information. As you know from our report, there
were many.
Mr. Walberg. How long did it take for you to get access to
those documents?
Mr. Horowitz. It took many months for this issue to be
resolved, and it was resolved through an order being issued by
the leadership, not through our independent access pursuant to
the IG Act.
Mr. Walberg. Elaborate on that last statement a little bit.
Mr. Horowitz. Yes. In our view, we have a right, as
Congress has laid out in the IG Act in Section 6(a), to get the
materials we ask for. When we ask for materials, we ask for
relevant information, responsive information, and in our view
we're entitled to that by law. Congress has been clear.
The FBI, other components in the Department have taken the
view that the IG Act perhaps doesn't mean that. Indeed, we've
been told that that was the Office of Legal Counsel's
preliminary view, that it wasn't sure the IG Act meant what it
said, and as a result it required an order of the Attorney
General or the Deputy Attorney General to the component that
said, I find these reviews are of assistance to me as the
leadership of the Department, and therefore you can give the IG
those materials.
Mr. Walberg. How has the requirement that the OIG obtain
written permission to access documents related to the Fast and
Furious operation affected your office's ability to conduct a
complete investigation in the matter?
Mr. Horowitz. It delays. It frequently has the impact of
delaying our reviews, not only because we have to go through
that process to the leadership of the Department, but also
because, frankly, it encourages other objections by other
components of other issues. For example, personally
identifiable information that IG Buller has talked about, that
issue was thrown up in front of one of our reviews on sexual
misconduct within the Department by both the FBI and the DEA.
That's a frivolous objection and after many months of back and
forth was withdrawn by the agencies and we finally got the
material.
Mr. Walberg. How does all this affect your independence?
Mr. Horowitz. It compromises it, in my view, entirely. I
should not have to go to the people I oversee for approval to
get records. Congress I don't think intended that. That would
undercut in every way our independence.
Mr. Walberg. We certainly didn't. I appreciate that.
Let me ask questions of each of the panelists. Other than
the reason described in the letter from 47 IGs, what tactics do
agencies use to deny OIGs access to agency records and
documents?
And, Ms. Buller, I'll start with you.
Ms. Buller. In my case, we've had instances where our
situation and the issue on the Kate Puzey Act has bled into
other areas. For example, they redid the Crime Reporting
Management System for standard reports, and when they did that
we were denied access to that for no reason, because they were
not a restricted report. So we had to go back to the general
counsel, and actually I had to go to the director of the agency
and make a personal plea to get the information that we had
been getting all along reinstated to us. Once you start down
the road where they're preventing you from getting information,
it pops up in different places and unexpected places.
Mr. Walberg. Mr. Elkins.
Mr. Elkins. In my case what I see is stonewalling, to a
large extent parsing out information. You ask for 10 pieces of
information and you get 2 or 3 pieces of information, and there
wants to be a discussion on the other 7 pieces of information,
and then there is continually fighting and going back and
meetings. And at the end of the day, a year later, you still
don't have the information.
And in the back of my mind what I hear is cha-ching, cha-
ching, cha-ching. That's the taxpayers' dollars that are going
out and being used on the agency side and on my shop's side to
be able to solve an issue that the IG Act says when we ask for
information we're supposed to get it immediately and promptly,
and if we had received it at that time, the cash register
wouldn't continually be ringing. So that's what I see.
Mr. Walberg. Mr. Horowitz.
Mr. Horowitz. As a result of the position that the IG Act
may not mean what it says, the FBI has put in place in our
instance their general counsel reviewing all of the materials
and all of our requests for materials before they come to us.
That requires reviews by lawyers at the FBI, it delays us
getting access. And a concrete example of what that means in a
review we are doing, we asked one of the subcomponents within
the FBI for an organizational chart. They told us they couldn't
give it directly to us because of the standing requirement
within the FBI that materials have to go through the Office of
General Counsel first. And so we were delayed for weeks in even
getting an organizational chart so we could figure out who to
talk to in the course of a review.
That should not be happening. That is a waste of money, as
IG Elkins just said. We have entitlement to the access to the
records. I'm not sure what use there is of the resources of the
FBI to go page by page through records before giving it to us.
Mr. Walberg. Thank you.
My time has expired. Now I recognize the gentlelady from
Illinois, Ms. Duckworth.
Ms. Duckworth. Thank you, Mr. Chairman.
The inspector general community plays a key role in making
the government more honest, efficient, and effective in
ensuring wise stewardship of taxpayer money. I have seen
firsthand their work, and obstruction of their work is simply
not acceptable. So I take the concerns being aired here today
very seriously, and hopefully the message that my colleagues
and I are sending on this point today is heard loud and clear.
I'd like to discuss the concerns I have with EPA's Office
of Homeland Security in particular. And, Mr. Elkins, on May 7
of this year the assistant inspector general for investigations
at EPA testified before the committee and raised a number of
access concerns. Specifically, Mr. Sullivan expressed
frustrations that the EPA's Office of Homeland Security, OHS,
was denying access to important classified threat material that
was impeding your ability to investigate threats against EPA
facilities and its employees. He also testified that OHS
refused to share misconduct cases with his office because OHS
believed it was, ``a de facto law enforcement organization in
itself.'' And finally, Mr. Sullivan raised concerns that OHS
did not recognize the IG's statutory authority over intrusions
into EPA's computer networks, apparently denying access to
classified information related to possible cyber intrusions.
Is that a fair summary of your concerns also with the OHS
office under EPA?
Mr. Elkins. Yes, ma'am, that is a fair characterization.
Ms. Duckworth. Thank you. So I understand from your
testimony today that you continue to have problems with access
to information from OHS. Is that correct?
Mr. Elkins. Yes, ma'am, that's correct.
Ms. Duckworth. In June, June 19th of this year, EPA
Administrator McCarthy sent you a memo entitled ``Working
Effectively and Cooperatively,'' that's correct? Is that
correct?
Mr. Elkins. I don't recall that exact memo. June 19th you
say?
Ms. Duckworth. It's called ``Working Effectively and
Cooperatively.''
Mr. Elkins. Oh, yes, I do recall that, yes.
Ms. Duckworth. Okay. So my understanding is that it
attempts to construct a framework for better cooperation
between OHS and your office, and section 5 of the memo lays out
a dispute resolution process. Has that process been used by
your office since receiving the memo?
Mr. Elkins. Well, I can speak from my own personal opinion,
no. I mean, we still have the same issues that we had at the
date of that letter. So if there was a dispute process that was
used, it hasn't worked, and I haven't been a part of it.
Ms. Duckworth. Okay. Do you think it should and it could or
should be further enhanced, the dispute resolution process, or
do you think that that is something that's just hindering your
work in general?
Mr. Elkins. Well, personally I think the IG Act says all
means all. I mean, when we ask for information and access to
documents and individuals, that's exactly what it means.
Entering into a dispute resolution process sends the message
that there's some wiggle room, that it can be negotiated, and I
am totally against that process.
Ms. Duckworth. So the committee staff attempted to assist
you in resolving this impasse that you're having with EPA's
Office of Homeland Security. My understanding from your
testimony, what you just said, that we're still hitting
roadblocks. Is that correct?
Mr. Elkins. Absolutely.
Ms. Duckworth. What steps do you think would be helpful to
resolve some of the disputes that you're having, and how can
this committee be helpful to you in that process?
Mr. Elkins. Well, I think ultimately the Administrator
needs to send a clear message that the IG Act requires absolute
cooperation with the IG. If that message is sent, I think
everything would change. And until we get some clear message
from the Administrator to that effect, I think the status quo
will continue.
Ms. Duckworth. Do you think the inspector is supporting
OHS' position that they are a de facto law enforcement agency
within the EPA?
Mr. Elkins. I'm sorry, can you repeat the question, please.
Ms. Duckworth. Do you think that Administrator McCarthy's
position, from what he has said with this, by supporting this
memo, ``Working Effectively and Cooperatively,'' and not
sending out this the statement that you should have full
access, do you think that he supports what OHS believes, that
they are a de facto law enforcement organization within EPA?
Mr. Elkins. Well, I don't want to put words in the
Administrator's mouth, but the end result is that the status
quo continues. So I can only infer that the administrator
agrees with that.
Ms. Duckworth. Thank you.
Thank you so much, Mr. Chairman, for having this hearing.
To the extent that this committee and its staff can be of
assistance to help address this impasse, we certainly should be
willing to help.
And again, Mr. Elkins, thank you for the work that you do
for us and for the American taxpayer.
Mr. Elkins. Thank you, ma'am.
Ms. Duckworth. I yield back, Mr. Chairman.
Mr. Walberg. Thank the gentlelady.
I recognize the gentleman from Oklahoma, Mr. Lankford.
Mr. Lankford. Thank you, Mr. Chairman.
Thank you all for being here and for your work that you do
every single day for the American taxpayer. We really do
appreciate what the Office of Inspector General does in every
one of these agencies. It is extremely important. Congress and
the American people established all these agencies. These
agencies just didn't appear out of dust and one day have
responsibility. Congress created these agencies, and then
Congress has the oversight responsibilities for these. What the
Office of Inspector General does is to bring transparency to
the American taxpayer, and so what you're doing is vital.
So with that, Mr. Horowitz, if I asked to see all of the
papers on your desk, would you assume that's only three pages
or would you assume that's all?
Mr. Horowitz. I would assume it's everything.
Mr. Lankford. Would you assume, if I asked for all the
pages on your desk, that you could go back and seek counsel and
then come back and say, no, we've really decided all doesn't
mean all?
Mr. Horowitz. Pursuant to the IG Act, no, you would get
everything.
Mr. Lankford. Okay. I have a real issue when any agency
steps in and says, I know Congress has required all these pages
to be turned over, but we've discussed it as an agency and
we're not going to turn it over. I have an issue with that. I
have an issue with anytime an agency steps up and says, we
don't like some of the information coming out and so we're
going to choose not to give it.
I don't like it when I read reports from the Attorney
General when he writes back to the inspector general and says,
I have determined that providing the OIG with access to it is
helpful to me, and so I'm going to turn this over because it's
helpful to me. That implies to me that he's also reviewing
other documents and saying, I have determined this is not
helpful to me, so I'm not turning it over. That is not the
responsibility of the Attorney General of the United States, to
be able to conceal documents that are not helpful and to turn
over documents that are.
So with that, I have several questions. The roadblocks that
you all have experienced over the last several years, Mr.
Horowitz, you've been at this how many years?
Mr. Horowitz. A little over 2 years.
Mr. Lankford. So of what you have seen and the folks that
you have talked to--Mr. Elkins, how long have you been at this
as an inspector general with the inspector general's office?
Mr. Elkins. Just a little over 4 years, sir.
Mr. Lankford. Okay.
Ms. Buller.
Ms. Buller. Six years.
Mr. Lankford. The question is, this is obviously an old
law. This is not new. This is requiring the administration,
every administration, any administration to say American tax
dollars are at use here. What have you seen in the individuals
that you have talked to and other folks that are around that
have worked in the inspector general office, some for decades,
what are they experiencing now that has changed, and has it
changed? Is this just normal protocol from every administration
to drag their feet on every investigation or is something
changing? And I'm not asking this in a political way. I'm just
trying to figure out is this just typical, normal protocol from
every administration, every agency?
Mr. Horowitz. I can certainly speak to our situation. I've
talked to my predecessors, and I think the answer is quite
clearly no in our circumstances. We did FBI oversight after the
attacks of 9/11, after the Robert Hanssen scandal. We were
given complete access to the materials we needed. We didn't
face these kinds of issues. Frankly, we didn't face these
issues until 2010 or 2011.
Mr. Lankford. Are you finding that FOIA requests, any
information coming out from a FOIA request is coming out as
fast or at equal speed than what you are getting from the
inspector general's office?
Mr. Horowitz. I actually haven't compared those, so I
couldn't speak to that.
Mr. Lankford. I can tell you in Congress we are finding
that, that at times that we'll make a request of a document and
a FOIA request happens, and the FOIA request gets it the same
day that we do, sometimes faster. So that has been an issue.
Mr. Elkins, I have a question for you. You're dealing with
the EPA, and you said in your oral testimony that you're being
blocked from the EPA receiving information that they have
deemed intelligence activity. Tell me about that.
Mr. Elkins. Yes, sir. The EPA, the Office of Homeland
Security has asserted that it is the primary office in EPA to
handle any issues related that have intelligence connected to
it. Unfortunately, they do not have investigation authority.
There are only two entities within EPA that have investigative
authorities. One is the OIG and the other is CID. In terms of
employee misconduct cases, which typically result in where you
have intelligence information where individuals inside the
agency are doing something illegal, it's going to be related to
employee misconduct.
Mr. Lankford. Right. So can you tell what intelligence
activity is within EPA. They're saying they're withholding this
information from you, you can't look at it because it's
intelligence activities. Can you tell what that is?
Mr. Elkins. Well, to the extent that they have the
intelligence activities information I don't know, because they
don't share that information with me.
Mr. Lankford. Well, I can tell you this committee finds
that ironic because it wasn't that long ago we had someone
sitting at that same table that pretended to be with the CIA
and was also with the EPA, and for years--for years--eluded EPA
oversight because he claimed he was secretly working for the
CIA. So I find it ironic that the EPA is now telling the
inspector general, well, this is intelligence related, we can't
pass this on for oversight.
I'm going to be very interested to hear from the EPA what
intelligence activities that they are doing on the American
people and what intelligence activities that they're doing
nationwide or worldwide related to the Environmental Protection
Act and why they would say this is so secret that we're not
going to allow the American people to see the activities of the
EPA or to allow the inspector general to participate in
oversight for that. I think that's a reasonable question to ask
any agency that doesn't have investigative intelligence
responsibilities, how they have somehow created their own
intelligence department and what they are doing with that.
Mr. Chairman, thank you for allowing me the extra seconds
here of questioning, and I thank you all for your work.
Mr. Walberg. I thank the gentleman.
And now I recognize the gentleman from Nevada, Mr.
Horsford.
Mr. Horsford. Thank you, Mr. Chairman. I appreciate very
much this hearing.
And we started off saying that this was going to be
nonpartisan, and unfortunately, as usual, it turns into a bit
more partisan than it should because the role that the IG plays
is very important, your mission is important, and we should be
working in a nonpartisan fashion to support that.
Mr. Horowitz, I do want to follow up on your comment by my
good friend, the gentleman from Oklahoma, and to ask you to
clarify a little bit based on your testimony today and your
previous testimony in January. I want to ask you about some of
the concerns that you raised regarding your office's access to
categories of information relevant to ongoing IG reviews,
including wiretap and grand jury materials and documents
related to the Department of Justice's use of material witness
warrants.
Mr. Horowitz, as I understand it, in specific instances you
have had to seek access to this information from the
Department's leadership, correct?
Mr. Horowitz. That's correct.
Mr. Horsford. When testifying about this same issue before
the committee on January 15th you stated, ``In each instance
the Attorney General or the Deputy Attorney General provided us
with the permission to receive the materials.'' Is that
correct?
Mr. Horowitz. That's correct.
Mr. Horsford. You also wrote in your testimony today that
the Department has informed you that, ``it is their intent to
continue to grant permission to access records in future audits
and reviews.'' Is that correct?
Mr. Horowitz. That's correct.
Mr. Horsford. So, Mr. Horowitz, as a preliminary matter,
has all of the information you have sought from the Department
been provided to you?
Mr. Horowitz. We are told that it has been.
Mr. Horsford. Has any information that you have requested
from the Department ultimately been withheld from you?
Mr. Horowitz. Ultimately no, we've gotten it after many
months.
Mr. Horsford. So during the January hearing you testified
that your office's access issues were, ``not necessarily
specific to this Attorney General, this Deputy Attorney
General, it is an issue that my predecessors have had to deal
with.'' Is that correct?
Mr. Horowitz. It is correct that they have had to deal with
timely production of materials.
Mr. Horsford. So when you were asked by my good friend, the
gentleman from Oklahoma, is this an issue that is unique to
this Department's leadership, that was not the answer you just
gave.
Mr. Horowitz. The issue arose in 2010 when my predecessor
was still there and continued beyond that. There were other
issues that predated in terms of timeliness, but we have not
had a legal objection raised by a component until then.
Mr. Horsford. I appreciate that clarification.
It is my understanding that the Department recently
requested a formal opinion from the Office of Legal Counsel to
resolve a conflict between the interpretation of section 6(a)
of the IG Act, which grants the IG prompt and full access to
all necessary requested information, and several statutes that
restrict the release of certain types of protected information,
such as grand jury and wiretap material.
It is also my understanding that the Department has told
you that it is committed to working with you to provide access
to all materials necessary for your office to complete its
review until the OLC releases its opinion. Is this correct? Is
this a correct understanding?
Mr. Horowitz. As I made clear in my testimony, the
leadership has made that clear. The problem is every day this
goes on without a decision we're not independent, we're not
acting in an independent manner.
Mr. Horsford. But that is not an issue of the leadership of
that department?
Mr. Horowitz. As I testified today, the leadership has made
it clear they will continue to issue orders to the components
to get us the records, but the issue is whether that's really
required by Congress' Act.
Mr. Horsford. And so therefore, Chairman, I think to the
degree there's some clarification, it's the clarification
within the disputes with section 6(a) and the statutes, not as
some would like to assert somehow the Department's leadership
in a lack of providing information that's being requested of
them. And I just think that that needs to be made clear for the
record.
I am encouraged the Department's leadership has been
working to provide your office with access to the information
it needs to do your job, including grand jury and wiretap
information that must be closely guarded. And I hope that both
parties continue to work together as we move forward on this
important issue.
Thank you very much, Mr. Chairman. I yield back my time.
Mr. Walberg. I thank the gentleman.
And I guess I would express my pleasure at this hearing so
far up until now that it has been bipartisan, nonpartisan,
looking for answers of what is happening now, so that we can
move forward and do it right. And so I would state that I think
that is what this committee hearing has developed around and
over and has been carried on. So I appreciate the bipartisan
fashion and the nonpartisan fashion so far.
Having said that, let me recognize, looking at the list
here, Mr. Duncan from Tennessee.
Mr. Duncan. Well, thank you, Mr. Chairman.
I'm sorry, I had to preside over the House, and so I
couldn't hear all of your testimony, but I introduced the
original bill to create an inspector general for the Tennessee
Valley Authority, and I've always believed very strongly in the
inspector general process. It has been very, very helpful to
the work of this committee.
But I was really amazed by the number of inspectors general
that signed this letter. I haven't tried to count them, but I'm
told it was 47, I think, or something like that. That's pretty
amazing. I think that certainly is not something that we've
ever seen before. So apparently there's pretty serious concern
by people who are in the know, so to speak.
Mr. Horowitz, I understand, though, that there are several
high profile investigations, such as in the New Black Panther
case and the prosecution of the late Senator Ted Stevens and
the torture memo case, other matters, where your investigation
has been hindered or delayed or something by the Office of
Professional Responsibility. Could you tell me about that and
explain a little bit about what that's done to your work.
Mr. Horowitz. Certainly, Congressman. The issue there is
that when Congress set up our IG office in 1988--we weren't
part of the original IG Act--it kept in place the Office of
Professional Responsibility, and it provided that, unlike with
regard to all the other employees in the Justice Department,
that we don't have jurisdiction to review alleged misconduct by
Department attorneys. So as a result, matters such as those
cases go to the Office of Professional Responsibility, which
lacks statutory independence, instead of coming to us. So we
actually have no authority to investigate those matters.
Mr. Duncan. Well, I understand that, but what I'm asking
you, there have been these high profile situations, and I'm
sure several much lower profile cases where there has been
misconduct by Department of Justice lawyers. Do you think that
your office would be capable of investigating this type of
misconduct along with the Office of Professional
Responsibility?
Mr. Horowitz. We absolutely think that, and I think we've
demonstrated that, frankly, by issuing reports regarding agent
misconduct, such as some of the work we've done in the FBI
context. We've demonstrated quite ably our abilities to do
that. And I think the same independence that Congress believes
is important, independent oversight over the FBI, should also
exist with regard to Department attorneys.
Mr. Duncan. I'll ask the panel as a whole, do you feel that
there's been an overclassification of documents by the
departments or agencies with which you have worked or in which
you've worked or in other departments that you've read or heard
about?
Mr. Elkins. I have to concur with Mr. Horowitz here, yes, I
have heard that. In my particular agency that has not been an
issue particularly, but I have heard that issue raised, yes.
Ms. Buller. Peace Corps doesn't have original
classification authority, so that's really not an issue at the
Peace Corps.
Mr. Horowitz. We have found some issues related to that in
one of the reports we did last year and have reported out on
that.
Mr. Duncan. All right. Well, thank you very much, Mr.
Chairman.
Mr. Meadows. [Presiding] I thank the gentleman.
And the chair recognizes the gentleman from Illinois, Mr.
Davis.
Mr. Davis. Thank you very much, Mr. Chairman.
And let me begin by emphasizing how much I value the work
of the inspector generals community in helping our government
function better and become more efficient. So I want to thank
all of you for being here.
It is imperative that all inspectors general have a good
working relationship with the agencies they are tasked with
overseeing in order to fulfill their mission of identifying and
eliminating waste, fraud, and abuse in the Federal Government.
Mr. Horowitz, I would like to ask about the Department's
overall level of cooperation with your office. You testified
before the committee on January 15 of this year that, ``Most of
our audits and reviews are conducted with full and timely
cooperation from the Department's components.'' Is that a
correct----
Mr. Horowitz. That's correct. In most of our work we have
had full cooperation.
Mr. Davis. Would it be fair to say that the access concerns
you raised in your testimony are limited to specific instances
and not representative of a larger-scale, agency-wide problem?
Mr. Horowitz. I would say there are limited reviews where
we've had this problem. The problem, though, is, as IG Elkins
and IG Buller said, it takes on a life of its own. We get what
I think are, frankly, frivolous objections in other instances
that don't have to go to the Deputy Attorney General or the
Attorney General because I'm able to work them out with agency
leadership at the DEA or the FBI, wherever it is. But these
problems, once some people see they can object, you get more
and more objections, frankly.
Mr. Davis. Thank you. Your office's semiannual report to
Congress for the October 2013 through March 2014 reporting
period states that it has closed 184 investigations, issued 35
audit reports, and made 137 recommendations for management
improvement. Is that correct?
Mr. Horowitz. That's correct.
Mr. Davis. The report mentions, for example, that your
office issued an audit of the Department's efforts to address
mortgage fraud, and the Department agreed with all seven of the
IG's recommendations. Is that correct?
Mr. Horowitz. That's correct.
Mr. Davis. Your office also examined the FBI's terrorist
watch list operations and practices and issued 12
recommendations, all of which the FBI agreed with. Is that
correct?
Mr. Horowitz. That's correct.
Mr. Davis. Mr. Horowitz, can you then give us an overview
of how these audits and recommendations help streamline costs
and improve the Department's programs and operations?
Mr. Horowitz. Well, we make these recommendations to do
precisely that, Congressman, so that we can not only advise the
agency leadership what steps need to be taken, but the Congress
itself as it does its oversight. And the recommendations we
make go to the deficiencies we find, either management or
waste, fraud, misuse that save the taxpayers every year tens of
millions of dollars.
Mr. Davis. Then it sounds to me like your office is doing a
great deal of very valuable work to ensure that the agency
maintains high standards of integrity and accountability. I
want to commend and thank you again for your efforts.
And I thank all of you for being here this morning and
clarifying, testifying, and giving us the assurances that we
need to have to know that you're doing good work and that the
oversight of our government is in good hands.
Mr. Chairman, I thank you and yield back the balance of my
time.
Mr. Meadows. I thank the gentleman, and the chair
recognizes himself for 5 minutes.
Thank you, all of you, for your testimony. Mr. Elkins in
particular, welcome. It's been a real pleasure to work with you
in a nonpartisan way. I think all of us here would agree that
we don't want Republicans, Democrats, or unaffiliated, or
agencies to influence your work, that indeed it needs to be
independent, that the American taxpayers depend on your work.
And so I just say thank you to each one of you.
Ms. Buller, I want to start with you. This continued
stonewalling of access to documents, what kind of harm,
potential harm can you see that would come from this,
specifically with your work?
Ms. Buller. Well, in our case we do have the memorandum of
understanding, so we are somewhat receiving information, but
the problem with that is it's a temporary measure and we can't
rely on it being there because it can be taken away at any
time. And if we don't receive access to the information that we
need, we can't ensure the volunteers who have been victims of
sexual assault are receiving the types of care and services
that they need and are entitled to in order for them to move on
with their lives.
Mr. Meadows. So is it your testimony today that victims
might potentially continue to suffer if you don't get the kind
of access to documents that is outlined in the memo of
understanding? If they quit providing that could victims
continue to be harmed?
Ms. Buller. We'll never be able to tell. That's the big
problem. We won't be able to tell whether or not the agency is
doing what it's supposed to do or whether or not they're
actually performing in a poorer manner than they were before.
We will be able to tell only from when the victims come in,
like they did in 2010, and complain about their treatment by
the agency.
Mr. Meadows. So what rationale would be out there to
justify--and this question is to all of you--what rationale is
out there to preclude you from getting information that would
be deemed beneficial to the American people? Why should they
withhold stuff from you? Mr. Elkins, we can start with you.
Mr. Elkins. Yes, sir. I think that's a good question, and I
scratch my head sometimes trying to figure out the answer to
that. But it seems to me that sometimes some of these defenses
are made out of whole cloth, they just kind of pop up based on
the circumstances. So it's random, and that's part of the
problem.
Mr. Meadows. So there are times when they will very
willingly give you information and then other times where they
say you can't have this?
Mr. Elkins. Yes, I think that's a fair assessment.
Mr. Meadows. Is that because the employees that you have
working for the OIG are somewhat inferior to the employees of
the agencies?
Mr. Elkins. Oh, no, no.
Mr. Meadows. Well, I would hope you would answer that in
that manner. And so what you're saying is the level and
professionalism of your employees would be equal with the
agency?
Mr. Elkins. Oh, absolutely.
Mr. Meadows. Do you think that the level of professionalism
and privacy concerns within your agency is equal to that of the
EPA as a whole?
Mr. Elkins. Absolutely.
Mr. Meadows. Would you agree with that, Mr. Horowitz? Would
you say you have the same desire to protect the integrity of
the process?
Mr. Horowitz. Absolutely. And we have a track record of
handling among the most sensitive national security information
that the FBI has through our review of section 702 of FISA,
through various Patriot Act reviews we have done that Congress
has mandated. We have among the most sensitive information that
exists in our possession.
Mr. Meadows. So there is not a clearance issue here, there
is not a propriety issue. And so really there is no reason at
all why you should not be getting 100 percent of what you
request.
Mr. Horowitz. Absolutely.
Mr. Meadows. I think, Ms. Buller, you said earlier that
there's never been a case where some of that information has
been disclosed by the OIG in terms of causing harm to a
potential victim. Is that correct?
Ms. Buller. That's correct.
Mr. Meadows. And so if we have all of these, then what is
the real genesis of this whole problem of why they do not want
to share it with really the only independent source out there
to protect the American people? What is the reason these
agencies would do that, Mr. Elkins?
Mr. Elkins. It seems to me that there may be a belief that
the IG Act doesn't mean what it says that it means.
Mr. Meadows. So has this been a new revelation, that all of
a sudden we have this new revelation in the last couple of
years that it doesn't mean that? Why did they come to this
conclusion recently?
Mr. Elkins. That's a good question, and that's probably one
that you would have to----
Mr. Meadows. So we have got new counsel that's interpreting
it a little bit differently? So what you are saying is from a
bipartisan standpoint what we need to do is make sure that the
ranking member and the chairman come together and say, well, we
mean what we say?
Mr. Elkins. Well, and one other thing, sir. There is no
enforcement mechanism in the IG Act.
Mr. Meadows. All right, I'm going to close with this: What
would be the great enforcement mechanism, that if they don't
give you 100 percent of the documents that they get their
budget cut by 10 percent?
Mr. Elkins. Sir, I will leave that up to you.
Mr. Meadows. I'll certainly yield to the ranking member.
Mr. Cummings. Just this one question, Ms. Buller. I'm just
trying to figure out what you are able to get under the
memorandum of understanding. Let's say, for example, someone is
raped. Right now you can get the--what can you get?
Ms. Buller. Right now we can get access to the restricted
report that's filed in the incident report. We may have more
difficulty getting other information concerning that particular
incident because we don't have a personal identifying number or
anything to associate with it.
Mr. Cummings. So you can get the details of the rape?
Because I'm kind of confused when I look at what you agree to.
Go ahead.
Ms. Buller. With the exception of explicit details, and
we've tried to define that MOU very narrowly, salacious, things
that wouldn't necessarily add anything to our review.
Mr. Cummings. I see. All right. Thank you.
Mr. Meadows. I thank the gentleman.
The chair is going to recognize the gentleman from Oklahoma
for 4 minutes at this point.
Mr. Lankford. Thank you, Mr. Chairman. I'm not going to
need all that time. I just need to follow up.
One of the documents that, Mr. Horowitz, you provided was
some background information about grand jury investigations,
specifically about an Oklahoma case that I want to bring up to
you. In the 1990s the Office of Inspector General at that time
requested information related to an FBI agent's testimony and
the Bureau of Prisons related around a gentleman who died in
the Federal Bureau of Prisons in Oklahoma named Ken Trentadue.
That was a very controversial case in many ways in Oklahoma.
There was a lot that happened around that case. And still a lot
of questions still spin around the death of Ken Trentadue in
Oklahoma.
Your reference to that case, I just want to be able to ask
why you're bringing that up at this point, what you have
learned from it, what was established then, and what's
happening now.
Mr. Horowitz. So this is now the 1997-1998 time period. Our
office was involved in the misconduct review related to that
matter. We needed grand jury information, and the Justice
Department, the Civil Rights Division then, but the Justice
Department supported our right of access to grand jury
information and went to court, to two different Federal judges
in Oklahoma, to confirm that the Department's reading of the
grand jury statute allowed them to give us those materials.
The two judges both said, you, Justice Department, are
right in your legal interpretation--not the OIG, the Justice
Department--and under the law the IG is entitled to get these
grand jury materials. To our mind that should have resolved
this issue. That's now 15 years ago. Two Federal judges have
both ruled. They're Article III judges. We are at a loss to
understand why nonconstitutional officers would be deciding the
issue any differently.
Mr. Lankford. Okay. So fast forward to now today and to
what you're dealing with. You're not getting access to grand
jury information currently. Is that correct?
Mr. Horowitz. The objection is we're not entitled as a
matter of law, so we have to go through this mechanism of
getting the Attorney General or the Deputy Attorney General's
approval to get it.
Mr. Lankford. So at that point you now have to make a
request and the Attorney General can say I either want you to
have this or I don't want you to have this. It goes back to
some of the earlier statements that I made, that he now has the
ability to say this helps me or doesn't help me and so I'm
going to give it to you or not give it to you, not based on
I've made the request, a Federal judge has already ruled on
this in Oklahoma, this has resolved issues. Is that correct or
not correct? I want to make sure I get this correct.
Mr. Horowitz. It's ultimately the decision of the Attorney
General or the Deputy Attorney General.
Mr. Lankford. Okay. Rather than I make the request, you're
already entitled to that?
Mr. Horowitz. Correct.
Mr. Lankford. Okay. So how many cases are out there that
are like that for you? Do you have a guess of how many
documents or cases that you're either getting delayed response
or getting partial response or getting a response at some date
in a future time period? Because you had testified earlier that
you are getting records, you're just not getting them in a
timely manner.
Mr. Horowitz. There are probably 10 or more examples I
could give of instances where we've either had the legal
objection raised or the timeliness issue come up in the last 2
years. At least. I could probably make an even longer list if I
went through it with my staff.
Mr. Lankford. Okay. Thank you.
Mr. Chairman, I appreciate your allowing me to ask that
Oklahoma-related question. Thank you.
Mr. Meadows. I thank the gentleman from Oklahoma.
The chair recognizes the ranking member, the gentleman from
Maryland, Mr. Cummings.
Mr. Cummings. As we close, I want to thank all of you for
being here today. These disputes are very serious because they
without a doubt impede you from doing your work. On the other
hand, of course you have the agencies, such as in, I guess, in
all these cases, who cite laws that conflict with your duties
and the rules and regulations that you operate under. It seems
like we ought to be able to resolve this.
I have two concerns, and one is, if we were to pass
legislation, and sharing your viewpoint, Mr. Elkins, and if it
does not prevail, I think that makes your position weaker, your
present position. The other thing that I'm concerned about is
that, if we were to do a universal thing that says your access
to information is superior to everything, I don't know what
that universe of everything is, you know? And I'm sure you
don't either. You may know in your area, but we're talking
about 47 of you all.
So then considering what the chairman talked about in
Executive order, I think the President probably would face the
same kind of problem with regard to what that universe is. But
there's got to be a way to deal with this.
Ms. Buller, the reason why I keep coming back to you is
because, I mean, we've got an agency that, when you have an IG
office whose duty it is to get information and protect these
victims and not be trusted with the information it seems like
there's something missing there, that we ought to be able to
get to the bottom line is how do we protect victims, how do we
get the information that we need so that we can accomplish
that.
So we're going to put our heads together and see what we
can do to try to resolve these issues, but they are serious
issues. I would imagine that if the agencies came in they
probably would say, we really do believe in what we're doing,
we're trying to obey the law, too. So it's going to take a
little bit of effort--a lot of effort--but I do believe that we
should be able to resolve this.
My last question. Do you all believe an Executive order is
the answer? Ms. Buller.
Ms. Buller. I think anything that sends a very strong
message to agencies that the IG is there to perform oversight
and in order to provide that oversight they need access to
agency records. Anything that is very clear and states that
without exception I think would help.
Mr. Cummings. Mr. Elkins.
Mr. Elkins. Yeah, I agree that Executive order would be
helpful. You know, also I'd just like to remind the panel here
that in administrative law cases there's a very rock solid case
which is called Chevron that agencies rely on to determine
whether or not deference should be paid to an agency that has
jurisdiction. Well, I think in our case Chevron would apply as
well. The IG Act, we're the subject matter experts there, and
there should be a certain amount of deference to our
interpretation as to what our access should be. That deference
is not given to us. Agencies would use Chevron all the time.
But in our circumstance, when we try toassert a Chevron
argument, it's ignored.
Mr. Cummings. Mr. Horowitz.
Mr. Horowitz. I would agree with you, Congressman, that a
clarification is critical. An Executive order, a prompt OLC
decision, we've been waiting for a few months now, that would
say what does the law mean. Because that's the objection we're
all getting at some level, which is Congress didn't mean in
6(a) what we all think it means, the FBI is reinterpreting
statutes, DEA, others. In my agency, the other inspectors
general have said the same thing. Ultimately they're trying to
interpret what Congress meant.
Mr. Cummings. Right.
Mr. Horowitz. So it's really all your issue here that
you've got the executive branch, in my case OLC, which speaks
for the executive branch, trying to divine does 6(a) mean what
it says, as we think has always been the case, at least until
2010 when the FBI general counsel raised an objection, or what
the FBI general counsel and some others have said. We need
clarity on that issue. An Executive order would do it, an
immediate OLC order would do it, and then Congress can decide
whether to fix 6(a) at that point or not. But that's really
what we need.
Mr. Cummings. Thank you all very much.
Thank you, Chairman.
Mr. Meadows. I thank the gentleman.
I thank each of you for your testimony. I think today
highlights really in a bipartisan way the need for full
disclosure to the OIGs, not just with your agencies that you
oversee, but across the board.
Ms. Buller, some of the testimony that you've given us
gives us great pause because sometimes we look at these things
as just administrative, and yet the victims that you have
discussed are real. And I don't believe that we could tolerate
the lack of cooperation. Ultimately the information that these
agencies have belong to the American taxpayers, they're not
proprietary to an agency, they're not proprietary to Congress,
they're not even proprietary to you. They belong to the
American taxpayers. And what we must do is have full and
complete disclosure.
To give the best example, if the IRS comes in and does an
audit, I don't know the universe of which they may be asking
for. When they say they want all of the documents, generally
they mean all of the documents. And I would suggest that that
simple test be one that the agencies hear loud and clear today,
that when you request it, they are to provide it. And then we
are going to hold you accountable to make sure that those
disclosures and the integrity and the professionalism that each
one of you have assured me that you have, that that gets abided
by, because a fracture there really does irreparable harm.
We've got a lot of great Federal workers. For many of the
American taxpayers the OIG is the only thing that they can
believe in to hold these agencies accountable.
Mr. Elkins, you know in my particular district I've got an
issue that has been going on for 25 years with the EPA. They
have no confidence, Democrats, Republicans, unaffiliated, none
of them have confidence in that agency to deal with that
problem. Their last hope, truly their last hope is your office,
and your involvement in the independence of that and the full
disclosure is what they're counting on. And so I think that
that can be echoed across all of the OIGs.
And so I thank you for your testimony, I thank the ranking
member for his closing comments. And I look forward to you
providing to this committee three recommendations on how we can
help with the enforcement component, the stick or the carrot
that we need to have, I need to know three suggestions that you
might have that we can encourage these agencies to provide what
the American people deserve.
Mr. Meadows. And with that, I adjourn this hearing.
[Whereupon, at 11:36 a.m., the committee was adjourned.]
APPENDIX
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Material Submitted for the Hearing Record
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