Lawmakers and inspectors general
Federal agencies require oversight and IGs perform the task
Americans have a right to know when our government is failing to function properly or is stepping out of line. Members of Congress, who represent the American public, are collectively tasked with the important responsibility of oversight to ensure the government is accountable to the people it serves.
This is a tall order. You don’t have to look far to see examples of federal agencies in need of oversight, whether it’s the FBI punishing staff for calling out misconduct, the Department of Homeland Security giving preferential treatment to well-connected EB-5 visa applicants, or the State Department’s inability to properly keep track of its own email records.
To assist in oversight, lawmakers rely on inspectors general (IGs), the independent agency watchdogs who are uniquely positioned within the executive branch to report problems to Congress. Congress passed laws explicitly allowing IGs to have “timely access to all records” in order to fully and independently review the agency’s work. This authority was granted by the Inspector General Act of 1978 and reaffirmed in subsequent bipartisan government funding measures.
However, in the last five years, a handful of agencies, led by the FBI General Counsel’s office, have taken issue with the definition of the word “all,” and have refused to provide timely access to records requested by the IG.
In February alone, the Justice Department’s IG notified Congress on three separate occasions in which the FBI failed to provide access to records requested for oversight investigations. IGs for the Environmental Protection Agency, Department of Commerce and the Peace Corps have experienced similar stonewalling.
In a July memo, the Justice Department’s Office of Legal Counsel suggested that IGs need the permission from the agency to obtain documents from that agency. The OLC claims that Congress didn’t really mean IGs have access to all records, even though the statute specifically states “all records.”
The law was written this way to ensure that agencies can’t pick and choose when to cooperate with IGs and when to withhold inconvenient or potentially embarrassing records. For these watchdogs to truly provide the independent oversight that the law intended, they need unfettered access to agency documents.
In August, I chaired a hearing where members of the IG community discussed the challenges that have stemmed from agencies’ unwillingness to comply with the letter of the law. At the hearing, Justice Department Inspector General Michael Horowitz stated, “Refusing, restricting, or delaying an Inspector General’s independent access to records and information may lead to incomplete, inaccurate, or significantly delayed findings and recommendations, which in turn may prevent the agency from promptly correcting serious problems and pursuing recoveries that benefit taxpayers, and deprive Congress of timely information regarding the agency’s activities.”
He further stated that the Office of Legal Counsel’s memo may lead other agencies to block investigations of fraud waste or abuse by restricting access to records. Already, the Internal Revenue Service has stiff-armed its IG based on this misguided interpretation of the law.
I recently was joined by a bipartisan, bicameral group of lawmakers in calling on the administration to commit to particular legislative language ensuring that IGs receive unrestricted access to all agency documents, as current law intends.
This week, a bipartisan group of senators are pressing to pass the Inspector General Empowerment Act of 2015 that includes further clarification as to what Congress intended when it comes to IGs’ access to agency records: “all” indeed means all.
The legislation also bolsters IG independence by shielding them from arbitrary and indefinite discipline by agency heads. The bill would promote greater transparency by requiring IGs to post their reports online and by equipping IGs with tools to subpoena testimony from contractors, grantees, and employees who have retired from the government, often while under investigation by the IG.
IGs are critical to public confidence in the rule of law, but they cannot effectively fulfill this responsibility when a debate over semantics is allowed to trump a commitment to transparency in our federal agencies. It is that transparency that will lead to the accountability we need to improve our government.