[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
THE OFFICE OF INSPECTOR GENERAL AND ITS ONGOING FAILURE TO COMPLY WITH
A SUBPOENA FOR DOCUMENTS ABOUT A RECENT INVESTIGATION
=======================================================================
OVERSIGHT HEARING
before the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
Thursday, September 11, 2014
__________
Serial No. 113-89
__________
Printed for the use of the Committee on Natural Resources
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COMMITTEE ON NATURAL RESOURCES
DOC HASTINGS, WA, Chairman
PETER A. DeFAZIO, OR, Ranking Democratic Member
Don Young, AK Eni F. H. Faleomavaega, AS
Louie Gohmert, TX Frank Pallone, Jr., NJ
Rob Bishop, UT Grace F. Napolitano, CA
Doug Lamborn, CO Rush Holt, NJ
Robert J. Wittman, VA Raul M. Grijalva, AZ
Paul C. Broun, GA Madeleine Z. Bordallo, GU
John Fleming, LA Jim Costa, CA
Tom McClintock, CA Gregorio Kilili Camacho Sablan,
Glenn Thompson, PA CNMI
Cynthia M. Lummis, WY Niki Tsongas, MA
Dan Benishek, MI Pedro R. Pierluisi, PR
Jeff Duncan, SC Colleen W. Hanabusa, HI
Scott R. Tipton, CO Tony Cardenas, CA
Paul A. Gosar, AZ Jared Huffman, CA
Raul R. Labrador, ID Raul Ruiz, CA
Steve Southerland, II, FL Carol Shea-Porter, NH
Bill Flores, TX Alan S. Lowenthal, CA
Jon Runyan, NJ Joe Garcia, FL
Markwayne Mullin, OK Matt Cartwright, PA
Steve Daines, MT Katherine M. Clark, MA
Kevin Cramer, ND Vacancy
Doug LaMalfa, CA
Jason T. Smith, MO
Vance M. McAllister, LA
Bradley Byrne, AL
Todd Young, Chief of Staff
Lisa Pittman, Chief Legislative Counsel
Penny Dodge, Democratic Staff Director
David Watkins, Democratic Chief Counsel
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CONTENTS
----------
Page
Hearing held on Thursday, September 11, 2014..................... 1
Statement of Members:
Hastings, Hon. Doc, a Representative in Congress from the
State of Washington........................................ 1
Prepared statement of.................................... 3
Huffman, Hon. Jared, a Representative in Congress from the
State of California........................................ 4
Prepared statement of.................................... 5
Statement of Witnesses:
Kendall, Hon. Mary, Deputy Inspector General, U.S. Department
of the Interior............................................ 6
Prepared statement of.................................... 7
Additional Materials Submitted for the Record:
Department of the Interior memorandum dated March 27, 2014 to
Mary Kendall............................................... 14
Department of the Interior memorandum dated September 5, 2014
to Mary Kendall............................................ 15
OVERSIGHT HEARING ON THE OFFICE OF INSPECTOR GENERAL AND ITS ONGOING
FAILURE TO COMPLY WITH A SUBPOENA FOR DOCUMENTS ABOUT A RECENT
INVESTIGATION
----------
Thursday, September 11, 2014
U.S. House of Representatives
Committee on Natural Resources
Washington, DC
----------
The committee met, pursuant to call, at 9:45 a.m., in room
1324, Longworth House Office Building, Hon. Doc Hastings
[Chairman of the Committee] presiding.
Present: Representatives Hastings, Lamborn, Huffman and
Sablan.
STATEMENT OF THE HON. DOC HASTINGS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WASHINGTON
The Chairman. The committee will come to order and the
Chairman notes a presence of a quorum, which under Rule 3(e) is
two members, and we have maxed that here today.
The Committee on Natural Resources is meeting today to hear
testimony on an oversight hearing titled ``Oversight of the
Office of Inspector General and its Ongoing Failure to Comply
With a Subpoena for Documents About a Recent Investigation.''
Under Committee Rule 4(f), opening statements are limited
to the Chairman and the Ranking Member. However, I ask
unanimous consent to include any Members' opening statements in
the hearing record if submitted to the clerk by the close of
business today, and without objection, so ordered.
I will now recognize myself for 5 minutes. There are long-
held concerns about the integrity and independence of the
Department of Interior's Office of Inspector General under the
leadership of the Deputy Inspector General, Mary Kendall. A
committee report released last year highlighted several
examples of mismanagement and their ongoing issues that
continue to undermine the credibility of the OIG's work.
The OIG is supposed to serve as an independent watchdog
over the Department and report findings to Congress. Instead,
Ms. Kendall has established an accommodating and deferential
relationship between the OIG and the Department, hindering the
OIG's ability to conduct impartial, independent work. The OIG
is currently in violation of a congressional subpoena for an
unredacted copy of their report and documents on the
Department's rewrite of the 2008 Stream Buffer Zone Rule.
Their report exposed mismanagement of the rulemaking
process and significant ongoing problems. However, key parts of
the report had been redacted including one section entitled
``Issues With the New Contract.'' The committee has made
multiple requests for this unredacted report and documents
including the issuance of a subpoena, but the OIG refused to
comply and says that the report is being withheld at the
request of the Interior Department.
Specifically, the Department's Office of the Solicitor
reviewed the OIG's report and documents and identified what
parts were to be redacted. Rather than serve as an independent
watchdog of the Department, in this example, the OIG is now
letting the Department call the shots. The OIG conducted a 2-
year investigation, then handed all of the documents of the
investigation to the very Department that was the subject of
the investigation and then allowed the Department to go line by
line through the documents and decide what would be provided to
Congress. That is astounding. The OIG has given control over to
the Department and is allowing it to dictate what should be
provided to Congress pursuant to a subpoena.
The OIG claims that the redacted material consists of an
ongoing deliberative process related to rulemaking, but the OIG
report is not created as part of the rulemaking and is not used
in the furtherance of rulemaking. The report and documents were
created solely by the OIG and remain in the possession and the
control of the OIG. That is why it was absurd when Ms. Kendall
said that we should seek these documents from the Department.
They are OIG documents.
Further, the OIG has failed to provide any reason for such
redaction. Though we have been informed that Ms. Kendall has
asked the Solicitor's Office to prepare this, once again
yielding her statutory power to the Department, she is supposed
to be investigating. Finally, I am alarmed that the OIG appears
to feel that it has to enter into a deferential relationship
with the Department in order to have access to information. In
a letter to the committee, Ms. Kendall wrote that in order to
secure that level of access from the Department, the OIG, and I
quote, ``has agreed to protect privileged information,'' end
quote.
Assistant Inspector General for Investigations, Robert
Knox, testified before us in January saying, and I quote again,
``The fear we have is if we don't show that respect, we may
lose that access that we need for investigations and audits in
the future,'' end quote. The IG Act provides unfettered access
to documents and information in order for all Inspector
Generals to have the necessary tools to maintain their
independence and do their job as watchdogs. They shouldn't have
to fear about not having access if they don't show them
respect.
Recently, 47 separate Inspector Generals wrote a letter to
Congress reaffirming their authority under the IG Act to have
access to all those agency records. Interestingly, Ms. Kendall
did not sign this letter that defends the importance of the
independent IGs.
For over a year-and-a-half, I have been calling on
President Obama to appoint a permanent IG for the Interior
Department. It is ridiculous that the OIG has been without a
permanent head for 5 years. The credibility of the OIG has been
tarnished under the leadership of Ms. Kendall and immediate
steps should be taken to restore the independence and the trust
in the office.
[The prepared statement of Mr. Hastings follows:]
Prepared Statement of the Hon. Doc Hastings, Chairman, Committee on
Natural Resources
There are long-held concerns about the integrity and independence
of the Department of the Interior's Office of Inspector General under
the leadership of Deputy Inspector General Mary Kendall. A committee
report released last year highlighted several examples of mismanagement
and there are ongoing issues that continue to undermine the credibility
of the OIG's work.
The OIG is supposed to serve as an independent watchdog over the
Department and report findings to Congress. Instead, Ms. Kendall has
established an accommodating and deferential relationship between the
OIG and the Department, hindering the OIG's ability to conduct
impartial, independent work.
The OIG is currently in violation of a congressional subpoena for
an unredacted copy of their report and documents on the Department's
rewrite of the 2008 Stream Buffer Zone Rule. Their report exposed
mismanagement of the rulemaking process and significant ongoing
problems.
However, key parts of the report have been redacted, including one
section entitled ``Issues with the New Contract.'' The committee has
made multiple requests for this unredacted report and documents,
including the issuance of a subpoena, but the OIG refuses to comply and
says that the report is being withheld at the request of the Interior
Department. Specifically, the Department's Office of the Solicitor
reviewed the OIG's report and documents and identified what parts were
to be redacted.
Rather than serve as an independent watchdog of the Department, the
OIG is now letting the Department call the shots.
The OIG conducted a 2-year investigation, then handed all of the
documents of the investigation to the very Department that was the
subject of the investigation, and then allowed the Department to go
line-by-line through the documents and decide what would be provided to
Congress.
It's astounding. The OIG has given control over to the Department
and is allowing it to dictate what should be provided to Congress
pursuant to a subpoena.
The OIG claims that the redacted material consists of an ongoing
deliberative process related to the rulemaking. But the IG report was
not created as part of the rulemaking and was not used in the
furtherance of the rulemaking. The report and documents were created
solely by the OIG and remain in the procession and control of the OIG.
That's why it was absurd when Ms. Kendall said we should seek these
documents from the Department instead. They are OIG documents.
Furthermore, the OIG has failed to provide any reason for each
redaction. Though we've been informed that Ms. Kendall has asked the
Solicitor's Office to prepare this--once again yielding her statutory
power to the Department she is supposed to be investigating.
Finally I'm alarmed that the OIG appears to feel that it has to
enter into a deferential relationship with the Department in order to
have access to information. In a letter to the committee, Ms. Kendall
wrote that in order to secure that level of access from the Department,
the OIG ``has agreed to protect privileged information.'' Assistant
Inspector General for Investigations, Robert Knox, testified before us
in January saying, ``The fear we have is if we don't show that respect,
we may lose that access that we need for our investigations and audits
in the future.''
The IG Act provides unfettered access to documents and information
in order for Inspector Generals to have the necessary tools to main
their independence and do their jobs as watchdogs. They shouldn't have
to ``fear'' about not having access if they don't show them respect.
Recently, 47 separate Inspector Generals wrote a letter to Congress
reaffirming their authority under the IG Act to have access to all
agency records. Interestingly, Ms. Kendall did not sign this letter
that defends the importance of independent IGs.
For over a year-and-a-half I've been calling on President Obama to
appoint a permanent IG for the Interior Department. It's ridiculous
that the OIG has been without a permanent head for 5 years. The
credibility of the OIG has been tarnished under the leadership of Ms.
Kendall and immediate steps should be taken to restore the independence
and trust of the office.
______
The Chairman. With that, I will recognize, sitting in for
the Ranking Member, Mr. Huffman from California.
STATEMENT OF THE HON. JARED HUFFMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Huffman. Thank you, Mr. Chairman and welcome back, Ms.
Kendall.
The Interior Department's Office of Inspector General found
no evidence of misconduct or political interference in the
ongoing Stream Protection rulemaking. Now, that should have
been the end of it. It should have been case closed, but my
Republican colleagues seem to have trouble accepting facts that
contradict their conspiracy theories, so now we are badgering
the investigator once again for not confirming what Republicans
want to be true, but just isn't.
The OIG's report and supporting documents provided to this
committee, contain some redactions requested by the Department
of Interior and according to the OIG, these redactions concern
the substance of the ongoing Stream Protection rulemaking which
the Department identified as predecisional and privileged. They
are irrelevant, however, to the central question of whether the
Interior Department officials acted improperly in this
rulemaking and on that question, we have all the information we
need.
The Interior Department has produced roughly 14,000 pages
of documents to this committee on the rulemaking. Contractors
who worked on the rulemaking also provided the committee with
25 hours of audio recordings, meetings with Federal regulators,
and now we have the Office of Inspector General's findings,
including supporting documents and interview transcripts with
key players that are mostly unredacted.
The OIG has told the Chairman that the still redacted
information is irrelevant to the Majority's oversight interest.
Ms. Kendall explained in a letter this past May that, quote,
``When we become aware of fraud and other serious problems,
abuses and deficiencies relating to the administration of
programs and operations . . . we ensure such information is
presented in a timely manner to the relevant congressional
committees. . . As we have repeatedly advised, however, we did
not find fraud or other serious problems with respect to the
ongoing rulemaking process.''
The OIG report confirmed the findings of a Democratic staff
report issued more than 2 years ago. We have learned nothing
new this entire Congress. So let me be clear: The Minority
believes that congressional oversight is essential for a well-
functioning government, and where there is a legitimate well-
founded interest in executive branch documents, we would and
will support and work with the Majority to obtain those
documents.
The problem here is this investigation has no purpose. The
Majority has just demanded documents for the sake of demanding
documents. It is another example where they seem to prefer to
have the issue so we can fight about it instead of having the
information. This is clearly wasteful. The Interior Department
has spent more than $2 million and diverted roughly 34,000
hours of staff time dealing with the Chairman's document
demands, but it also threatens to erode our system of executive
branch oversight, so there are much more serious implications
to what we are doing here.
The Inspector General's Office often sometimes faces
difficulty obtaining access to records, especially privileged
records, but this OIG has obtained memorandum from every
Interior Secretary since Gale Norton directing Department
employees to provide all requested information to the OIG,
including privileged information.
Now, if the OIG were to do as the Majority demands and
release all information identified as privileged by the
Department, it could comprise the ability of this Inspector
General and future Inspector Generals to obtain sensitive
information and conduct effective investigations in the future.
The Chairman also has issued a whopping 11 subpoenas over
the last two Congresses. Subpoenas are sometimes necessary, but
when they are handed out like Halloween candy, their force is
diminished and we in Congress become easier to ignore. That is
especially true when the subpoenas are frivolous, like the one
we are talking about here today.
Indeed, it is telling that, at the end of this Congress, we
are having a hearing about documents and nothing that actually
matters to the American people. The sad truth is that the
Majority's investigations have taught us nothing important;
they have caused nothing to improve. We leave this Congress as
we started, demanding documents without purpose and wasting
everyone's time.
I yield the balance of my time.
The Chairman. I thank the gentleman for his statement.
[The prepared statement of Mr. Huffman follows:]
Prepared Statement of Hon. Jared Huffman, a Representative in Congress
from the State of California
Thank you, Mr. Chairman.
The Interior Department's Office of Inspector General found no
evidence of misconduct or political interference in the ongoing Stream
Protection rulemaking.
That should have been case closed, but Republicans seem to have
trouble accepting facts that contradict their conspiracy theories. So
now we're here badgering the investigator for not confirming what
Republicans know must be true--but isn't true.
The OIG's report and supporting documents provided to this
committee contain some redactions requested by the Interior Department.
According to the OIG, these redactions concern the substance of the
ongoing Stream Protection rulemaking, which the Department identified
as pre-decisional and privileged.
They are irrelevant, however, to the central question of whether
Interior Department officials acted improperly in the Stream Protection
rulemaking.
On that question, we have all the information we need. The Interior
Department has produced roughly 14,000 pages of documents to the
committee on the Stream Protection rulemaking. Contractors who worked
on the rulemaking also provided the committee with 25 hours of audio
recordings of meetings with Federal regulators. And now we have the
Office of Inspector General's findings, including supporting documents
and interview transcripts with key players that are mostly unredacted.
The OIG has told the Chairman that the still redacted information
is irrelevant to the Majority's oversight interests. Ms. Kendall
explained in a letter this past May that, quote, ``When we become aware
of fraud and other serious problems, abuses, and deficiencies relating
to the administration of programs and operations . . . we ensure such
information is presented in a timely manner to the relevant
congressional committees. . . As we have repeatedly advised, however,
we did not find fraud or other serious problems with respect to the
ongoing rulemaking process.''
The OIG report confirmed the findings of a Democratic staff report
issued more than 2 years ago. We have learned nothing new in this
entire Congress!
Let me be clear: The Minority believes that congressional oversight
is essential for a well-functioning government. And where there is a
legitimate, well-founded interest in executive branch documents, we
would support and work with the Majority to obtain those documents.
The problem here is that this investigation has no purpose. The
Majority is just demanding documents for the sake of it.
This is clearly wasteful--the Interior Department has spent more
than $2 million and diverted roughly 34,000 hours of staff time dealing
with the Chairman's document demands. But it also threatens to erode
our system of executive branch oversight.
Inspectors General often face difficulty obtaining access to
records, especially privileged records. But this OIG has obtained
memorandum from every Interior Secretary since Gale Norton directing
Department employees to provide all requested information to the OIG,
including privileged information.
If the OIG did as the Majority demands and released all information
identified as privileged by the Department, it could compromise the
ability of the OIG to obtain sensitive information and conduct
effective investigations in the future.
The Chairman also has issued a whopping 11 subpoenas over the last
two Congresses. Subpoenas are sometimes necessary, but when they are
handed out like Halloween candy, their force is diminished and we in
Congress become easier to ignore. That's especially true when the
subpoenas are frivolous, like the one we are talking about here today.
Indeed, it's telling that, at the end of this Congress, we are
having a hearing about documents and nothing that actually matters to
the American people. The sad truth is that the Majority's
investigations have taught us nothing important. They have caused
nothing to improve. We leave this Congress as we started: demanding
documents without purpose and wasting everyone's time.
______
The Chairman. Ms. Kendall, you have been here before. You
know how this process works. Your full statement will appear in
the record, but we would like you to keep your oral remarks
within the 5 minutes. The green light means that you are doing
well. When the yellow light comes on, it means you have a
minute and when the red light comes on we would ask you to
summarize your final point and then we can get to the question
period.
And with that, Ms. Kendall, you are recognized for 5
minutes.
STATEMENT OF THE HON. MARY KENDALL, DEPUTY INSPECTOR GENERAL,
U.S. DEPARTMENT OF THE INTERIOR
Ms. Kendall. Thank you, Mr. Chairman, and good morning.
Good morning, Congressman Huffman, and, I guess, that is it for
the committee. I would say good morning to other Members.
This committee has subpoenaed information from the Office
of Inspector General regarding its Stream Protection Rule
report that the Department of the Interior has claimed is
privileged and should not be disclosed. My office has stated
repeatedly that this dispute is between the committee and DOI,
not the OIG, and we have urged the committee to engage with DOI
to resolve this issue.
Instead, the committee has continued to pressure the OIG to
release privileged documents and information that, if released,
would not only jeopardize the OIG's ability to obtain
privileged information from DOI in the future but would also
exacerbate an existing problem in the IG community regarding
timely access to information and documents from their agencies
and departments.
We have explained repeatedly that the claim of privilege is
DOI's to assert, not the OIG's. We have also made this position
clear to DOI which concurs that it alone has the responsibility
and authority to resolve the issues in dispute. We also
explained that we have a longstanding understanding with DOI
that it would not decline to provide privileged information to
the OIG, so long as we give DOI an opportunity to identify
cognizable privileges, as it has here.
We have also expressed our concern that release of
privileged information, in this instance by the OIG, would
seriously impair our access to the same in the future. Of even
greater concern is that to release information against the
assertion of privilege by DOI would add to the argument that
other Federal agencies and departments would use to withhold
information from their respective OIGs. This is not simply my
assessment. It is a conviction shared by my colleagues in other
IG offices.
I find it curious that this committee is pressuring my
office to do something that would jeopardize access in the
future for itself and other OIGs, while your colleagues in both
the House and Senate, in a bipartisan letter to OMB, have
expressed their concern about the difficulties that Inspectors
General have encountered in trying to obtain documents from
their respective agencies.
In fact, the Senate Judiciary Committee held a bipartisan
hearing on Tuesday and the House Oversight and Government
Reform Committee held its second bipartisan hearing just
yesterday on this very issue. Like the witnesses at these
hearings, we acknowledge that the IG Act is very clear, that
IGs are to have access to all documents and information
applicable to the department or agency they oversee.
As a practical matter, however, other OIGs have had
significant difficulty in gaining access to documents and
employee interviews regardless of this statutory provision.
Whether privilege is properly asserted by DOI in this matter
involving ongoing rulemaking, can only be resolved between this
committee and the Department or through litigation in Federal
Court. The OIG has not taken a position in this dispute but has
been placed squarely in the middle of it by this committee.
Our position that the information at issue is the
Department's to claim and defend privilege for is also
consistent with the position of other IG offices. We are not
aware of any other congressional committee issuing subpoenas to
an Inspector General to obtain departmental or agency documents
or information. I again urge this committee to use the
procedural tools available to it to pursue access to documents
and information from the Department of the Interior rather than
pressure the OIG to take action that would jeopardize our
ability to do our job in the future as well as the abilities of
our OIG colleagues to do their jobs.
The information that remains at issue is the Department's,
not the OIG's; the assertion of privilege is the Department's,
not the OIG's; and the waiver of the privilege is the
Department's, not the OIG's. I will do my best to answer
questions that Members may have.
[The prepared statement of Ms. Kendall follows:]
Prepared Statement of Mary L. Kendall, Deputy Inspector General,
Department of the Interior
This hearing arises out of a series of letters dated December 23,
2013, March 13, 2014, April 16, 2014, and July 18, 2014, and a subpoena
dated March 25, 2014, issued by this committee to the Office of
Inspector General (OIG) for the Department of the Interior (DOI)
seeking documents and information concerning an OIG investigation
regarding the Stream Protection Rule that is being promulgated by DOI.
The OIG has responded in detail to each of these letters and to the
subpoena in letters of our own.
To summarize the position of my office, this committee has
subpoenaed information from our Stream Protection Rule report that DOI
has claimed is privileged and should not be disclosed. This dispute is
between the committee and DOI, not the OIG, and we have urged the
committee to engage with DOI to resolve this issue. Instead, the
committee has continued to pressure the OIG to release privileged
documents and information that, if released, would not only jeopardize
the OIG's ability to obtain privileged information from DOI in the
future, but would also exacerbate a problem in the IG community
regarding timely access to information from their agencies and
departments.
We have explained repeatedly that the claim of privilege is DOI's
to assert--not the OIG's--and we have repeatedly asked that the
committee attempt to resolve the issue with DOI. We also explained that
we have a long-standing understanding with DOI that it would not
decline to provide privileged documents to the OIG so long as we gave
DOI an opportunity to identify cognizable privileges, as it has here.
We have also repeatedly expressed our concern that release of
privileged information in this instance by the OIG will seriously
impair our access to the same in the future.
Of even greater concern is that to release information against the
assertion of privilege by DOI would add to the argument that other
Federal agencies and departments would use to withhold information from
their respective OIGs. This is not simply my assessment; it is a
conviction shared by my colleagues in other IG offices.
It is curious that this committee is pressuring the OIG to do
something that would jeopardize access in the future for itself and
other OIGs while your colleagues in both the House and Senate, in a
bipartisan letter to OMB, have expressed their concern about the
difficulties that Inspectors General have encountered in trying to
obtain documents from their respective agencies.
The Chairman's letters have contended that a claim of executive
privilege has not been asserted as a basis for the continued
withholding of the subject information. This contention fails to
recognize how the executive branch asserts a claim of executive
privilege. We have noted that every President since Lyndon Johnson has
asserted executive privilege in shielding documents from Congress. The
practice of recent administrations is that only the President can
assert executive privilege and will only do so after receiving a
recommendation from the Attorney General. The current practice also
involves efforts to resolve disputes through a judicially recognized
process of accommodation. This process has been described by one
Attorney General as: ``The accommodation required is not simply an
exchange of concessions or a test of political strength. It is an
obligation of each branch to make a principled effort to acknowledge,
and if possible to meet, the legitimate needs of the other branch''
(Assertion of Executive Privilege, 5 Op. O.L.C. 27, 31 (1981)).
Whether privilege is properly asserted by DOI in this matter
involving ongoing rulemaking can only be resolved by the parties to the
dispute--this committee and the Department--or through litigation in
Federal Court. The OIG does not take a position in such a dispute; we
note, however, that other administrations have claimed the privilege in
the context of ongoing rulemaking. In 1981, Attorney General William
French Smith recommended and President Reagan asserted executive
privilege to subpoenas from a congressional committee for documents
concerning ongoing deliberations regarding regulatory action by the
Interior Secretary. (See Assertion of Executive Privilege, 5 Op. O.L.C.
27.) As we have explained to the committee and committee staff multiple
times, the OIG cannot usurp the President's power to assert executive
privilege if other efforts to resolve the dispute fail.
One of the Chairman's letters asserted that our actions to avoid
getting pulled into an ongoing dispute between this committee and the
Department is indicative of our lack of independence. We feel certain
that the opposite is true--that our independence and neutrality in a
dispute between the committee and the Department that has
constitutional implications can only be advanced by the position we
have repeatedly expressed: the information the committee seeks belongs
to the Department, and the committee should be seeking that information
from the Department, not from the OIG. We have also made this position
clear to DOI, which concurs that it alone has the responsibility and
authority to resolve the issues in dispute.
Our position is also consistent with the position of other IG
offices--if documents or information in the possession of the OIG that
the agency claims as privileged is sought by a congressional committee,
the OIG would refer the committee to the agency. We are not aware of
any other congressional committee issuing subpoenas to an Inspector
General to obtain departmental or agency documents or information.
We recognize that the IG Act provides ``that each Inspector
General, in carrying out the provisions of this Act, is authorized--to
have access to all records, reports, audits, reviews, documents,
papers, recommendations, or other material available to the applicable
establishment which relate to programs and operations with respect to
which that Inspector General has responsibilities under this Act.''
As a practical matter, however, other OIGs have had significant
difficulty in gaining access to documents and employee interviews
regardless of this statutory provision, as was addressed in the January
15, 2014 hearing before the House Committee on Oversight and Government
Reform, Strengthening Agency Oversight: Empowering the Inspectors
General. The testimony from this hearing makes clear that the language
of the IG Act alone does not assure OIGs access to agency documents and
information.
The OIG for DOI is somewhat unique in that we secured a memorandum
from every one of the Secretaries of the Interior since Gale Norton
directing DOI employees to provide all requested information to the
OIG, including privileged information. The OIG, in order to facilitate
such access, has agreed to review such privilege assertions and
determine whether such claims have a constitutional basis and are
consistent with prior assertions by the executive branch.
The OIG's unique situation was even noted in the Staff Report for
Chairman Darrell E. Issa, House Committee on Oversight and Government
Reform, and Chairman Lamar Smith, House Committee on Science, Space and
Technology, entitled Whistleblower Reprisal and Management Failures at
the U.S. Chemical Safety Board, dated June 19, 2014. The report notes
that the disclosure of privileged information to an OIG would not waive
privilege because the OIG is technically part of its department or
agency. The issue of providing privileged information to the OIG was
also recently cited in an August 5, 2014 letter to Congress, signed by
47 IGs, which said: ``While valid privilege claims might in certain
circumstances appropriately limit the . . . OIG's subsequent and
further release of documents, a claim of privilege provides no basis to
withhold documents from the . . . OIG in the first instance'' (emphasis
added).
I again urge this committee to use the procedural tools available
to it to pursue access to documents and information from the Department
of the Interior, rather than pressure the OIG to take action that would
jeopardize our ability to do our job in the future, as well as the
abilities of our OIG colleagues to do their jobs. The information that
remains at issue is the Department's, not the OIG's; the assertion of
privilege is the Department's, not the OIG's; and the waiver of
privilege is the Department's, not the OIG's.
______
The Chairman. I will recognize myself for the purpose of
questioning now.
In my opening statement, I made an observation of my
understanding. In your opening statements you made an
observation of your understanding. In several letters, Ms.
Kendall, to this committee and again in your written testimony
today, you articulate several conflicting viewpoints about the
position you are taking on behalf of the Department.
On the one hand, you state that you are, and I quote, ``not
taking a position,'' end quote, of whether these documents are,
in fact, privileged. Yet, you also claim that the committee
continues to, and I quote, ``pressure the OIG to release
privileged documents,'' end quote, and spend several paragraphs
explaining your understanding that these documents are, in
fact, privileged.
Now, let me be clear. Your office conducted an
investigation and created a report of your findings. You have
withheld these findings from the Congress in violation of the
IG Act and in violation of this subpoena. Under the spurious
claim that the information contained in the report that you
drafted is privileged. You then claim that your office is not
taking a position. However, the Department has not asserted a
claim of privilege, and you have not asked this committee to
hold the subpoena in abeyance while the claim of executive
privilege is asserted by the Department.
Your claims that you are being put in the middle of a
disagreement between this committee and the Department, in my
view, is disingenuous. The committee has subpoenaed a report
that your office, your office, OIG, within the Department of
Interior drafted, not documents that were used in the ongoing
rulemaking. If the Department had sought a claim of executive
privilege of these documents and then the committee subpoenaed
you for them, that would be a different situation. Here, the
Department simply told you what they wanted withheld, and you
obliged. You even had the Department make the redactions for
you.
So let me ask you this, these are very simple questions:
Has the Department sought a claim of executive privilege from
the White House regarding these documents?
Ms. Kendall. Mr. Chairman, not that I know of, but that
would be a question that would need to be asked of the
Department.
The Chairman. So as far as you know, that has not been
done?
Ms. Kendall. As far as I know.
The Chairman. Is anything preventing the Department from
seeking a claim of privilege from the White House?
Ms. Kendall. Not that I know of, Mr. Chairman.
The Chairman. Have you asked the Department to assert a
claim of privilege on these documents?
Ms. Kendall. Mr. Chairman, I have asked the Department to
provide me a document that expresses their position on this
information.
The Chairman. I didn't ask you that. Have you asked the
Department to assert a claim of privilege on these documents
that we are asking, that we subpoenaed?
Ms. Kendall. It is not my position to do so, sir.
The Chairman. So you haven't asked, then, obviously.
Ms. Kendall. No I have not.
The Chairman. Have you told the Department that absent a
valid claim of privilege that you are compelled to comply with
the congressional subpoena?
Ms. Kendall. Mr. Chairman, there is a process by which
privilege is asserted----
The Chairman. I didn't ask you that. What I asked you is,
have you told the Department that absent a valid claim of
privilege under the IG Act, you are compelled to comply with a
congressional subpoena?
Ms. Kendall. I believe it would be the committee's position
to tell the Department that, not mine.
The Chairman. I just find that answer--all right. I just
don't know, let me ask one final question. I think I know what
the answer is going to be, not satisfactory to me. Absent a
valid assertion of executive privilege, are you not compelled
to comply with the validly issued congressional subpoena?
Ms. Kendall. Absent a valid assertion, I would say yes, but
in this case, the Department has provided information to us
that----
The Chairman. But it is not an assertion of executive
privilege. Is that correct?
Ms. Kendall. Mr. Chairman, I would be glad to provide you
the documents that the Department has provided us and you can
make your own decision on whether it is valid or not.
The Chairman. I am not--all right.
Ms. Kendall, you can tell that I am a bit frustrated
because what we are asking is, again, just for the record,
something that your office created.
Ms. Kendall. I understand that.
The Chairman. And the Office of the Inspector General was
created long before I came to Congress to have, quote,
``independent oversight and access to all documents so that
Congress in their responsibility to review issues would have
that information.'' You have done that in your IG investigation
of the previous rulemaking. And that is what we are asking
about. That is all we are asking about.
My time has expired. I recognize the gentleman from
California.
Mr. Huffman. Thank you, Mr. Chairman.
I think we need to be very precise with some of these words
that really have legal significance, so I want to follow up on
the Chairman's point about whether findings that you made in
your investigation were actually withheld or redacted, as
opposed to information that may have been the subject of a
claim of privilege by the Department.
So Ms. Kendall, let me ask you just very directly, did you
make any findings that were withheld or redacted from this
committee?
Ms. Kendall. No, sir.
Mr. Huffman. I thought so.
Ms. Kendall, the Inspector General Act requires you to keep
the Secretary of Interior and Congress fully informed
concerning fraud and other serious problems, abuses,
deficiencies relating to the administration, programs and
operations. However, the information the Majority is demanding
from you does not concern anything close to that standard of
seriousness; is that correct?
Ms. Kendall. That is correct.
Mr. Huffman. And so had you found misconduct, deficiencies,
et cetera, as specified in the Act, would you have reported
that information to this committee?
Ms. Kendall. In the ongoing rulemaking, yes, I would have.
Mr. Huffman. But you made no such findings?
Ms. Kendall. No, we did not.
Mr. Huffman. I think it is important to remember, as we
have this disagreement about documents and assertions of
privilege by the Department, that the underlying rulemaking
that has been targeted by the Majority is a Stream Protection
Rule involving the practice of mountaintop removal mining.
It is a practice that is destroying Appalachian
communities, threatening public health, devastating the
environment and there is no doubt that the rulemaking would
probably require the coal industry to do some additional things
to protect the environment and public health in Appalachian
communities. Yet we have so changed the subject and gotten so
wrapped around the axle that that fundamental point has been
lost.
I want to thank you for your patience and for your
appearance before this committee, and I would yield the balance
of my time.
The Chairman. The Chair recognizes the gentleman from
Colorado, Mr. Lamborn.
Mr. Lamborn. Thank you, Mr. Chairman. Thank you for having
this important hearing.
Ms. Kendall, the investigation your office conducted shows
that contractors were asked to change numbers, that this
occurred after the job loss numbers were leaked, and that OSM
spent millions of dollars and several years to have nothing to
show for it. The report also discussed other, quote, ``issues
with the new contract,'' unquote, issues that you have
determined Congress has no right to know about.
We have repeatedly asked you to provide the report your
office prepared in accordance with the requirements of the
Inspector General Act; you have repeatedly refused to do so. A
subpoena was issued on March 25 of this year for the unredacted
version of the report your office created. Although you have
written letters back, on Tuesday you provided a few more
sentences, but most of what we are seeking is still missing.
Now, apparently, you concede that these documents that we
are subpoenaing were created by your office. Is that true?
Ms. Kendall. That is true.
Mr. Lamborn. That they were created during the course of
your duties under the Inspector General's Act. Is that true?
Ms. Kendall. Yes, sir.
Mr. Lamborn. And that they remain in your possession,
custody or control?
Ms. Kendall. Yes, sir.
Mr. Lamborn. OK. So here is what we have. You created a
report using the authority under the IG Act and that same Act
requires you to keep Congress fully and currently informed. By
providing a different report to Congress, one that is heavily
redacted, you have failed to keep Congress fully and currently
informed.
You are withholding documents at the request of the
Department in violation of a subpoena. You and your general
counsel have confirmed that the documents are in your
possession, custody and control; and you have just reconfirmed
that.
To your knowledge, has the President exerted executive
privilege over these documents?
Ms. Kendall. To my knowledge, no.
Mr. Lamborn. OK. And have you asked the Department to seek
a claim of privilege?
Ms. Kendall. I answered the Chairman about that; no, I have
not.
Mr. Lamborn. OK. Do you intend to comply with the subpoena
that our committee has properly given to you?
Ms. Kendall. Mr. Lamborn, I have asked the committee
multiple times to seek this information from the Department.
The information is contained in the OIG report, but the
information is the Department's, not the OIG's.
The Department has expressly said it would work with this
committee to accommodate, and that is the process by which this
kind of information is supposed to go through, but the
committee has not engaged the Department in this particular
instance since April of 2013.
Mr. Lamborn. So we have no right to subpoena you?
Ms. Kendall. You have subpoenaed me.
Mr. Lamborn. Well, we have every right to do so. It was
properly done. You have been under subpoena for 6 months now.
You have failed to comply. You have not provided this committee
with the documents we have properly sought for. I believe you
should be held in contempt.
Do you have any reason to say why you should not be held in
contempt?
Ms. Kendall. I certainly do, sir, because this information
is the Department's. If I can go back to Mr. Issa's hearing
yesterday, he said that the reason IG should get privileged
information is because they are a part of the executive branch.
I do not feel that I can, as a part of the executive branch,
usurp the Department's claim of privilege or usurp the
President's claim of privilege.
Mr. Lamborn. Ms. Kendall, let me interrupt. We are asking
for your report. Why can't you give us your report?
Ms. Kendall. You are asking for the Department's
information.
Mr. Lamborn. No, we are asking for your report.
Mr. Chairman, I yield back.
The Chairman. Let me correct for the record that you just
stated in response to a question from Mr. Lamborn that this
committee has not interacted with the Department since April of
2013.
Ms. Kendall. On this issue.
The Chairman. No, that is not correct. There has been--I
don't know where you got that information. Where did you get
that information?
Ms. Kendall. Well, that was the last letter that I
understood you sent to the Department.
The Chairman. No, there have been discussions on the staff
level with the Department on this. So----
Ms. Kendall. I stand corrected.
The Chairman. You stand corrected, all right.
Now, you said that the Department gave you a reasoning of
privilege, I think I heard you say that, of why you should not
give your report to us. Would you clarify what I thought I
heard you say in my initial line of questioning?
Ms. Kendall. Yes, sir. The Associate Solicitor for General
Law, Ed Keable, has provided us with two memoranda that express
their position on these documents and expressly ask that we ask
the committee to engage with them, not with the OIG, to resolve
this issue. I would be happy to provide those documents to you.
The Chairman. You have not provided them. When will you
provide those to us, then?
Ms. Kendall. I can provide them to you this afternoon, sir.
The Chairman. All right. I wish you would do so.
Ms. Kendall. I will do that.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Memorandum
To: Mary Kendall, Deputy Inspector General
From: Edward T. Keable, Deputy Solicitor--General Law
Subject: Response to House Natural Resources Committee Subpoena Dated
March 25, 2014
The Department understands that the Office of the Inspector General
(OIG) has received a subpoena dated March 25, 2014 from the House
Natural Resources Committee (HNRC) demanding production of the
unredacted version of the Report of Investigation (ROI) into the
efforts of the Office of Surface Mining (OSM) to revise its Stream
Protection Rule (SPR) and which the OIG provided to the Committee in
redacted form on March 18, 2014; transcripts of interviews with OSM and
other DOI employees and employees of contractors engaged by the OSM to
assist in the drafting of the SPR; and investigating agents' notes
concerning these interviews and other aspects of the ROI.
In response to earlier oversight requests, the Department previously
reviewed the redacted information the Committee now demands through its
subpoena and concluded that the information relates to the ongoing
rulemaking process for the SPR. The information demanded relates to
important Executive Branch confidentiality interests and is
deliberative and pre-decisional information that, if provided to the
Committee, could compromise the independence and integrity of the still
on-going rulemaking process.
The Secretary of the Interior and the HNRC Chairman have also discussed
the sensitivity of information related to the on-going rulemaking
process. In a January 15, 2014, letter to the Chairman, the Secretary
summarized that exchange: ``During our conversation, you acknowledged
the Department's interest in protecting this information and I hope
that our mutual understanding can form the foundation for us to work
together in a way that respects our mutual Constitutional interests.''
The information now demanded of the OIG by the Committee in its March
25 subpoena is the very same information the Committee Chairman has
already agreed the Department has a cognizable interest in protecting
from disclosure.
We therefore continue to respectfully request that you decline to
produce to the Committee any information that relates to the ongoing
rulemaking process for the SPR. We also request that you direct the
Committee to Ms. Sarah Neimeyer, Director, DOI Office of Congressional
and Legislative Affairs, regarding the Committee's interest in this
information and to reach a mutually agreeable accommodation on this
matter.
cc: Sarah Neimeyer, Director, DOI OCL
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Memorandum
To: Mary Kendall, Deputy Inspector General
From: Edward T. Keable, Deputy Solicitor--General Law
Subject: Response to House Natural Resources Committee Subpoena Dated
March 25, 2014
The Department understands that you have been invited to testify before
the House Natural Resources Committee (Committee) on September 11,2014,
regarding your response to the Committee's March 25, 2014, subpoena
seeking production of the unredacted Report of Investigation (ROI) into
the efforts of the Office of Surface Mining (OSM) to revise its Stream
Protection Rule (SPR) and related documents.
In a March 27, 2014, memo, I informed you that the Department reviewed
the redacted information sought in the subpoena and concluded that
certain information relates to important Executive Branch
confidentiality interests and is deliberative and pre-decisional
information that, if provided to the Committee, could compromise the
independence and integrity of the still ongoing SPR rulemaking process.
I respectfully requested that you decline to produce to the Committee
any such information that relates to the ongoing SPR rulemaking and
asked that you refer the Committee to the Department to afford us the
opportunity to reach an accommodation.
In response to what the Department understands to be the Committee's
specific concerns about the appropriateness of some of the Department's
requested redactions in the IG's initial response to the Committee, the
Department has again reviewed the ROI and supporting documents and has
agreed, as a part of the accommodation process between the Legislative
and Executive branches, that factual assertions and some deliberative
information that do not harm important Executive Branch interests may
be revealed to the Committee. We have provided your staff with that
information. However, the Department finds no reason to alter its
conclusion about the release of the remaining deliberative, pre-
decisional information contained in those documents.
The Department has not yet announced the availability of a proposed
rule, and internal, deliberative discussions among employees of the
Department and its contractors about the SPR are ongoing. These
discussions, which will determine the scope and content of the rule to
be proposed, the alternatives to be considered, and appropriate
environmental and economic analytical models to be employed, are the
heart of the deliberative and pre-decisional information surrounding
the SPR rulemaking that the Department seeks to protect.
The Department stands on solid legal ground in its efforts to protect
its pre-decisional deliberations regarding the SPR. Courts have
recognized that aspects of the deliberative process privilege have
roots in the constitutional separation of powers. It has also been
long-standing Executive Branch policy recognized by both political
parties that protecting internal Executive Branch deliberations is one
of the significant interests encompassed by the doctrine of executive
privilege, and this confidentiality interest is heightened when the
deliberations are ongoing. Thus, draft rulemaking documents prepared
during the course of ongoing deliberations clearly fall within the
scope of executive interests. The release of such information could
severely compromise the independence and integrity of the Executive
Branch's rulemaking process.
The Department therefore continues to respectfully request that you
decline to produce to the Committee any information we have identified
to you that relates to our executive interests in the ongoing
rulemaking process for the SPR. I also again ask that you direct the
Committee to Ms. Sarah Neimeyer, Director, DOI Office of Congressional
and Legislative Affairs, regarding the Committee's interest in this
information to afford the Department the opportunity to work with the
Committee to attempt to accommodate their interests.
cc: Sarah Neimeyer, Director, OCL
______
The Chairman. OK. That is all I have.
Mr. Huffman.
Mr. Huffman. Thank you, Mr. Chair.
I would just note that if the Majority was interested in
asking the Solicitor this question directly, she was sitting in
the chair right next to you yesterday in a hearing.
Ms. Kendall. I was hoping she would be here today, sir.
Mr. Huffman. Yes, and that question was not posed. So I
think we are left with a situation where the Majority has, for
some reason, preferred to bring the Inspector General's Office
before this committee to answer questions about assertions of
privilege that were made by the Department, not by you, to
disregard the fact that you have made finding after finding
that there was nothing wrong found in your investigation with
this rulemaking. You have shared those findings completely
without redaction with the committee, and yet questions about
the Department's assertions of privilege continue to be asked
as if there is an issue or controversy here.
So there is still no there there to this whole process, and
I am sort of left with the statement I concluded with in my
opening, that we have learned nothing, but we have sure spent a
lot of time and money chasing documents.
The Chairman. Gentleman yield back?
Mr. Huffman. Yes.
The Chairman. Chair recognizes the gentleman from Colorado,
Mr. Lamborn.
Mr. Lamborn. Thank you, Mr. Chairman.
And before we go on, could the staff please put up on the
screen Slide 1. OK.
And that is what we were referring to earlier, Ms. Kendall.
This is all that we have received from your report. Maybe there
are a few words that were given on Tuesday, but basically that
is what we are faced with, unfortunately.
Now, we have discussed the IG Act a little bit already, but
I have a question about a different section. Section 5 of the
Act requires that you, quote, ``keep the head of the Department
and the Congress fully and currently informed.'' You provided
one version of a report to the Department and a different, less
detailed version of that report to Congress, withholding vital
information at their request. How does this decision comport
with the requirement to keep Congress and the head of the
Department fully and currently informed?
And if the staff could put up Slide 6, please, with that
specific language so we can all see it.
Ms. Kendall. Congressman Lamborn, first, I would note that
the previous exhibit was 2 pages out of a 30-page report and
only one of them was heavily redacted. That pertains to the
ongoing rulemaking which is an executive branch responsibility,
and the Department has claimed that they have an interest in
maintaining the privilege of deliberative process.
And that is the only information relative to this entire
report that we have been willing to accept as a claim of
privilege.
Mr. Lamborn. Now, how often does it happen that you provide
separate reports, one to the Department and one to Congress?
Ms. Kendall. Rarely.
Mr. Lamborn. Rarely. In fact, this is probably a unique
situation?
Ms. Kendall. It is.
Mr. Lamborn. OK. So we have one report provided to the
Department and one to Congress. I don't see how you are in
compliance with that requirement, that Congress be fully and
currently informed.
How do you determine what reports are included in the
semiannual report to Congress that your office provides?
Ms. Kendall. We include what we determine internally as
significant reports. I understand this one was left out of our
semiannual report inadvertently. I have been told by staff that
it was not input into the system until October, which would
have made it--it should have gone into the March semiannual
report, but I have made sure that it will be in the semiannual
report that we issue at the end of October, or at the beginning
of October.
Mr. Lamborn. OK. So you admit that that mistake was also
made?
Ms. Kendall. That mistake was made, yes.
Mr. Lamborn. And will that report be in its full form that
the Department received, or are you going to redact it again?
Ms. Kendall. The semiannual report is a summary of reports,
and it will contain the bulk of the information in summary form
of this report.
Mr. Lamborn. So we won't have the full and currently
informed type of document that we are hoping to get?
Ms. Kendall. Mr. Lamborn, we have a very significant
differing opinion on that.
Mr. Lamborn. We sure do.
Let's see, one of the redacted versions of the report shows
that the date is February 28, 2013. The report was not released
until December 20, 2013, 10 months later. Why was that report
so long in being released?
Ms. Kendall. I don't personally know where the February
date comes from, but our reports take a very long time to get
released, going through a process of review and editing and
then issuance.
Mr. Lamborn. Was the Department providing input to you? Did
they express concerns about the content that they wanted to
suppress?
Ms. Kendall. No, sir. When we issue a report to the
Department, we issue it. They have, in the case of an
investigative report, 90 days to respond to us.
Mr. Lamborn. But this was 10 months. So their 90 days came
and went and 10 months went by, 7 more months.
Ms. Kendall. I don't know when the report was actually
issued to the Department.
Mr. Lamborn. Does every department that the Inspector
General's Office deals with get that kind of opportunity to
dictate what is released to Congress?
Ms. Kendall. I don't know what other departments do or
don't do, but in this case, there is, in my view, a valid
assertion of deliberative process privilege that we needed to
respect in order to prevent the problems that other IGs have
about gaining access. I think it would significantly impair our
ability if we released this information over the Department's
assertion of privilege.
Mr. Lamborn. So they are acting wrongfully, and you are
taking it out on us?
Ms. Kendall. I don't believe they are acting wrongfully,
sir. I have asked the committee over and over to engage them on
this very issue. It is their privilege to defend and to waive.
Mr. Lamborn. Mr. Chairman, I yield back.
The Chairman. Time of the gentleman has expired.
The chair recognizes the gentleman from the Northern
Marianas, Mr. Sablan.
Mr. Sablan. Thank you very much, Mr. Chairman. And I yield
my time to Mr. Huffman from California. Thank you.
Mr. Huffman. I thank the gentleman.
Could we put Exhibit 6 back up on the screen, please.
The reason that we have a disagreement about this duty of
the Inspector General to keep Congress fully and currently
informed is because this exhibit is picking and choosing
language from the statute.
There is no obligation to keep Congress fully and currently
informed about what you had for breakfast or every conversation
that you had with anybody in the Department of Interior. The
Act actually, if it were properly and fully quoted on this
section, is quite specific on what you are supposed to keep
Congress fully and currently informed about, and it specifies
fraud, serious problems, abuses and deficiencies relating to
the administration of programs and operations.
So let's ask the question once again. I suspect the answer
is still going to be the same. But Ms. Kendall, did you at any
time find fraud, serious problems, abuses and deficiencies in
your investigation?
Ms. Kendall. No, sir.
Mr. Huffman. Thank you.
The Chairman. Ms. Kendall, clearly, there are differences
of opinion here on the IG and your responsibility as Acting
Inspector General, and clearly this issue is maybe larger
system-wide simply by the mere fact that 47 IGs, roughly half
of them, have signed letters saying that they are not getting
the cooperation from the agencies over which they have
responsibility. Now, that larger issue is certainly above the
pay scale of this committee.
But the question is, I guess, ultimately, is the Office of
Inspector General, which was supposed to be independent, it was
created again before I was here, any Member here was in the
Congress, and it was designed as part of the oversight process,
and when we feel as a committee, I mean, whatever information
is given, the judgment of that information, whether it is valid
or not, is really the committee.
We ask for the information, and depending on what the
subject matter is, if it is satisfactory, OK, it is
satisfactory. But it sounds to me that what you are attempting
to do or what your actions are from my point of view is you are
acting as a referee and not allowing us to make the
determination if it is important. I think that is very serious.
I don't know where this leads.
Mr. Huffman talked about the Stream Buffer Rule. I know
that that was promulgated before he was elected. There is a lot
of controversy about it, mainly because the Bush administration
has spent 5 years dealing and coming up with a Stream Buffer
Rule that was similarly thrown out, and a new one was put in
place and then the contractors were fired. I mean, that is
pretty serious business. And they were fired because
information was leaked that it would cost jobs. Well, OK, boy,
that has an affect on the economy. Shouldn't the people know
why? And all we were asking about was your report of how that
happened.
Ms. Kendall. Mr. Chairman----
The Chairman. We weren't asking about the rulemaking. You
keep confusing that.
Ms. Kendall. Except that our report does talk about what
happened with the contractor who was not fired but their
contract was let to expire. Our concern in looking at this, and
we reported it out in the first 29 pages of the report, what
happened to the contractor and whether or not there was
improper political influence exerted over the contractor and
the numbers. And we determined--well, we didn't determine, we
just presented the facts, quite frankly.
The Chairman. Well, there is a part there, however, I don't
have it right in front of me, that says that trouble with the
contractor, or something to the effect--yes, in fact, the part
that is redacted is issues with the new contract.
So, this issue, absent executive privilege, we think that
that report should come to us. You have a different view. Maybe
what you are going to give us as to what the Department in the
memorandum, maybe that will enlighten us. Hope springs eternal.
But I am confident that that probably will not happen.
So if there is no further business to come before the
committee, committee stands adjourned.
[Whereupon, at 10:26 a.m., the committee was adjourned.]
[all]