[Senate Hearing 114-885]
[From the U.S. Government Publishing Office]


                                                     S. Hrg. 114-885

                ALL MEANS ALL: THE JUSTICE DEPARTMENT'S
                    FAILURE TO COMPLY WITH ITS LEGAL
                 OBLIGATION TO ENSURE INSPECTOR GENERAL
                    ACCESS TO ALL RECORDS NEEDED FOR
                         INDEPENDENT OVERSIGHT

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

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             AUGUST 5, 2015

                               __________

                           Serial No. J-114-28

                               __________

         Printed for the use of the Committee on the Judiciary
         
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                    U.S. GOVERNMENT PUBLISHING OFFICE                    
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                       COMMITTEE ON THE JUDICIARY

                  CHARLES E. GRASSLEY, Iowa, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont, Ranking 
JEFF SESSIONS, Alabama                   Member
LINDSEY O. GRAHAM, South Carolina    DIANNE FEINSTEIN, California
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
MICHAEL S. LEE, Utah                 RICHARD J. DURBIN, Illinois
TED CRUZ, Texas                      SHELDON WHITEHOUSE, Rhode Island
JEFF FLAKE, Arizona                  AMY KLOBUCHAR, Minnesota
DAVID VITTER, Louisiana              AL FRANKEN, Minnesota
DAVID PERDUE, Georgia                CHRISTOPHER A. COONS, Delaware
THOM TILLIS, North Carolina          RICHARD BLUMENTHAL, Connecticut

            Kolan L. Davis, Chief Counsel and Staff Director
      Kristine Lucius, Democratic Chief Counsel and Staff Director
                            
                            
                            C O N T E N T S

                              ----------                              

                       AUGUST 5, 2015, 10:00 A.M.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.     1
    prepared statement...........................................    99
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     4
    prepared statement...........................................   103

                               WITNESSES

Witness List.....................................................    33
Brian, Danielle, Executive Director, POGO........................    23
    prepared statement...........................................    64
Horowitz, Hon. Michael E., Inspector General, U.S. Department of 
  Justice........................................................     6
    prepared statement...........................................    34
Light, Paul, Professor, Robert G. Wagner Graduate School of 
  Public Service, New York University, New York..................    25
    prepared statement...........................................    78
Miller, Hon. Brian, Former Inspector General, U.S. General 
  Services Administration Managing Director, Washington, DC......    27
    prepared statement...........................................    90
Perkings, Kevin L, Associate Deputy Director, FBI................     8
Smith, David, Acting Inspector General, U.S. Department of 
  Commerce.......................................................    11
    prepared statement...........................................    61
Uriarte, Carlos, Associate Deputy Attorney General, U.S. 
  Department of Justice..........................................     9
    prepared statement...........................................    55

                               QUESTIONS

Questions submitted to Danielle Brian by:
    Senator Grassley.............................................   114
Questions submitted to Michael E. Horowitz by:
    Senator Grassley.............................................   107
Questions submitted to Michael E. Horowitz and Carlos Uriarte by:
    Senator Leahy................................................   116
Questions submitted to Michael E. Horowitz by:
    Senator Lee..................................................   118
Questions submitted to Paul Light by:
    Senator Grassley.............................................   115
Questions submitted to Brian Miller by:
    Senator Grassley.............................................   113
Questions submitted to Kevin L Perkins by:
    Senator Grassley.............................................   104
Questions submitted to David Smith by:
    Senator Grassley.............................................   112
Questions submitted to Carlos Uriarte by:
    Senator Grassley.............................................   109

                                ANSWERS

Responses of Danielle Brian to questions submitted by:
    Senator Grassley.............................................   120
Responses of Michael E. Horowitz to questions submitted by:
    Senator Grassley.............................................   123
Responses of Michael E. Horowitz to questions submitted by:
    Senator Leahy................................................   128
Responses of Michael E. Horowitz to questions submitted by:
    Senator Lee..................................................   129
Responses of Paul Light to questions submitted by:
    Senator Grassley.............................................   134
Responses of Brian Miller to questions submitted by:
    Senator Grassley.............................................   136

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

Letter by Navigant, Brian D. Miller dated August 26, 2015........   136
Letter dated August 5, 2014......................................   139
Council of the Inspectors General on Integrity and Efficiency 
  Letter dated October 7, 2011...................................   147
Council of the Inspectors General on Integrity and Efficiency 
  Letter dated June 24, 2014.....................................   151
Council of the Inspectors General on Integrity and Efficiency 
  Letter dated August 3, 2015....................................   154
Congressional Research Service Letter dated July 31, 2015........   159
U.S. Department of Justice, Federal Bureau of Investigation 
  Letter dated April 15, 2015....................................   176
Letter from Stephen D. Kelly, Assistant Director, Office of 
  Congressional Affairs..........................................   177
Department of the Treasury Letter dated July 30, 2015............   179
Letter by Senator Grassley to James B. Comey dated February 26, 
  2015...........................................................   181
Letter by Senator Grassley to James B. Comey dated March 6, 2015.   186
Letter by Senator Grassley and Kelly Ayotte to Eric H. Holder, 
  Jr. dated April 2, 2014........................................   190
Attachment 1.....................................................   193
Attachment 2.....................................................   207
Letter to Karl R. Thompson dated October 10, 2014................   213
Letter to Sally Quillian Yates dated July 30, 2015...............   217
United States Department of Commerce Letter dated June 24, 2015..   219

 
                       ALL MEANS ALL: THE JUSTICE
                     DEPARTMENT'S FAILURE TO COMPLY
                      WITH ITS LEGAL OBLIGATION TO
                    ENSURE INSPECTOR GENERAL ACCESS
                       TO ALL RECORDS NEEDED FOR
                         INDEPENDENT OVERSIGHT

                              ----------                              


                       WEDNESDAY, AUGUST 5, 2015

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 10 a.m., Room 
106, Dirksen Senate Office Building, Hon. Charles E. Grassley, 
Chairman, presiding.
    Present: Senators Cornyn, Perdue, Tillis, Leahy, and 
Klobuchar.
    Chairman Grassley. Before the two of us give our opening 
statements, I have been told that there are some people from 
Inspector General offices. I would like to have all the people 
who are IGs or acting IGs to please stand.
    I want to thank you folks for doing the job you do of 
making sure that the laws are faithfully executed. We spend 
money according to laws. Thank you very much for your hard 
work. You are a very important part of government being 
responsible. Thank you for being here.

 OPENING STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR 
   FROM THE STATE OF IOWA, CHAIRMAN, SENATE COMMITTEE ON THE 
                           JUDICIARY

    Chairman Grassley. The Inspector General's Act of 1978 
created Inspector General as independent objective units within 
the executive branch. Since then, the American taxpayers have 
relied on IGs to carry out three important tasks: (1) conduct 
audits and investigations of agency programs; (2) to promote 
the integrity, efficiency, and effectiveness of programs; and 
(3) to keep Congress and agency heads fully informed about 
program operations, deficiencies, and the need for corrective 
action.
    To help IGs achieve these goals, Section 6A of the IG Act 
authorizes Inspectors General to access quote, unquote ``ALL'' 
records belonging to their respective agencies.
    Two weeks ago, the Justice Department's Office of Legal 
Counsel issued a legal opinion claiming that that word ``all'' 
does not actually mean all. Today we will examine how this 
opinion is hindering the work of the Justice Department's 
Inspector General and threatens all Inspectors General.
    The IG Act means what it says. The Department of Justice IG 
is legally entitled to all department records, period. If an 
Inspector General deems a document relevant to do his job, then 
the agency should turn it over immediately, without hesitation 
or review. According to the Department of Justice Inspector 
General, the Department did exactly that prior to 2010.
    However, in 2010, the Federal Bureau of Investigation 
suddenly changed that practice after the IG uncovered some 
embarrassing information about the FBI's misuse of exigent 
letters. The FBI claimed it had the right to refuse to provide 
the IG information in over a dozen categories, including 
information related to wire taps, grand jury, and consumer 
credit.
    The FBI claimed its attorneys would review material first 
and then have the Attorney General or Deputy Attorney General 
decide what could be released to the IG. Congress did not 
intend to create this sort of litigation-style stand-off inside 
a department.
    It is a waste of time and money for two divisions of the 
same government department to be fighting over access to the 
department's own records. The Department's current practice is 
exactly the opposite of what the law envisions.
    Under the law, an Inspector General must be independent 
because agencies cannot be trusted to investigate themselves. 
If IGs have to ask for permission from senior leadership, they 
would be--not be truly independent.
    The IG Act does not allow the Attorney General, not the 
FBI, to prohibit an Inspector General from carrying out or 
completing an investigation, but only in certain limited 
circumstances. When that extraordinary step is taken, it must 
be done in writing to the IG and the IG must forward that 
written notice to Congress.
    The FBI would have us believe--this is what they would have 
us believe--that instead of written notice being required to 
block an IG investigation, it needs written permission to 
comply with an investigation. This is simply not how the law 
was designed to work.
    The IG testified to Congress multiple times about these 
problems since taking office in 2012, so Congress took action 
to resolve the dispute. We essentially bolded and underlined 
Section 6A of the IG Act that ensures access to records.
    Not literally, but Section 218 of this year's Justice 
Department Appropriations Act declared that no funds should be 
used to deny the IG timely access to all records. Section 218 
also directed the Inspector General to report to Congress 
within 5 days whenever their was a failure to comply with this 
requirement.
    In February and March alone, we received four of those 
reports that the FBI refused to comply. I wrote to the FBI 
twice about these notices and still have not received answers 
to most questions.
    Mr. Kevin Perkins, the FBI Assistant Director, is here to 
account for these matters, and so here is Mr. Michael Horowitz, 
the Inspector General of the Justice Department. I would like 
to find out from these two witnesses what the practice of the 
FBI was prior to 2010 and whether that practice complied with 
the procedures that the OLC opinion now argues is mandatory 
because we have got to realize the FBI cannot be above the law.
    It has an obligation to comply not only with the Inspector 
General Act, but also with the restrictions Congress places on 
appropriations. That means that FBI employees cannot legally be 
spending their time withholding and reviewing documents before 
providing them to the IG.
    However, this is exactly what the FBI has been doing and 
now OLC's opinion actually endorses that practice. OLC needed 
68 pages of tortured logic to support its claim that neither 
the IG Act nor Section 218 mean what it actually says.
    Not surprisingly, last Thursday, the Appropriations 
Committee authors of Section 218 wrote a joint letter to the 
Deputy Attorney General that said the following quote: ``The 
OLC's interpretation of Section 218 and the subsequent 
conclusion of our committee's intentions is wrong. For OLC to 
determine our intentions as anything other than supporting the 
OIG's right to gain full access to timely and complete 
information is disconcerting.
    We expect the Department and all of its agents need to 
fully comply with Section 218 and provide the OIG with full and 
immediate access to all records, documents, and other materials 
in accordance with Section 6A of the IG Act'' end of quote.
    Isn't that about as clear a statement as you can get and 
the intent of the IG Act is equally clear? Unfortunately, only 
a few pages of the OLC's 68-page opinion actually discusses the 
IG Act. Instead, most of the opinion, 46 pages, analyzed just 
three legal provisions whose general limitation on disclosure 
allegedly override the law's specific promise of Inspector 
General access.
    Those three provisions relate to Title 3 wire tap, Title 6E 
grand jury, and fair credit reporting. It is unclear why so 
much ink was spilled on just these three provisions, given that 
the FBI has cited nearly a dozen provisions and withholding 
records from the IG. There are dozens, if not hundreds, of 
generally applicable non-disclosure provisions throughout the 
U.S. Code that could also limit Inspector General access under 
the tortured logic of OLC opinion.
    That opinion argues that non-disclosure statutes like these 
trump the IG Act unless Congress makes it extra clear that they 
do not by specifically mentioning those statutes by name in the 
IG Act. Think about that for a moment. According to the OLC, 
the IG Act would have to mention each and every non-disclosure 
statute by name before DOJ would believe that Congress really 
meant to ensure access to all records.
    That is simply unworkable. We do not even have a definitive 
list of non-disclosure statutes that might need to be listed. 
The congressional Research Service is studying that question at 
my request, but listing specific exemptions to dozens or 
hundreds of non-disclosure statutes would be too unwieldy.
    That is why we used the word ``all'' to cover everything 
without having to list each potential exception. It really is 
that simple. Members should be able to ask the Office of Legal 
Counsel about this and many other questions with opinions.
    Unfortunately, now the Department refused to provide a 
witness from OLC today. In response to the invitation, the 
Department said the head of OLC, Mr. Thompson, is out of the 
country today. However, personnel from Inspectors General from 
across the country are here, as you have seen, to listen to 
this and to help us understand it. I thank all of you for 
joining us.
    In Mr. Thompson's absence, the committee asked DOJ to 
provide an alternative witness from his office, however, the 
Department claimed that it did not have enough time to prepare 
for this testimony. After 14 months of working on this opinion 
since May 2014, that office was not ready to discuss it 
publicly. That is very astonishing!
    I also invited the Deputy Attorney General to testify about 
procedures she announced in May to improve the IG's access to 
records. When she was being confirmed I asked if she would 
appear before the Congress. All of these people say yes. I 
think now they ought to say maybe they will appear. Four days 
after the OLC opinion, she updated these procedures to comply 
with that opinion.
    However, these new procedures add further delay and 
uncertainty to the situation. The committee notified her of 
this hearing with plenty of advanced notice, and even removed 
the original date from last week to this week. Unfortunately, 
however, the Department said that she was unavailable to 
testify. Mr. Carlos Uriarte an Associate Deputy Attorney 
General, is here to take our questions, and I thank you for 
coming.
    I also have here to testify Dave Smith, Acting Inspector 
General of the Commerce Department, because that Department has 
followed the OLC opinion and denied access to that Inspector 
General. This is a sign of things to come in terms of the 
effect an OLC opinion will have for IGs to access documents 
across government.
    We have three witnesses on our second panel to discuss the 
implications of the opinion: Paul Light, New York University; 
Danielle Brian, Project on Government Oversight; Brian Miller, 
former IG, Government Services Administration. I want to thank 
all them for joining us.
    Before I call on Senator Leahy, I want you to know that 
Senator Leahy and I might have some differences of opinion on 
issues before the Congress, but when it comes to him and I 
working together on oversight, I think we are hand in glove. I 
think, particularly, I thank him for help when he was Chairman 
of the Committee to make amendments to the False Claims Act 
that needed to be made so Congress could do its oversight, and 
other issues as well.
    Thank you, Senator Leahy.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Senator Leahy. Thank you.
    Sometimes the press overlooks the fact, or maybe the public 
overlooks the fact, the press that covers and knows these 
things, tends to overlook the fact that Republicans and 
Democrats actually do work together on a number of things in 
this body, as Senator Grassley and I have on a lot of the 
oversight.
    Chairman Grassley. While you are doing your statement I am 
going to go across the hall and vote with Finance on something 
that they have in Executive Session. They cannot tell me when 
to come.
    Senator Leahy. As soon as he is out of the room I am just 
going to pass a whole lot of stuff.
    [Laughter.]
    Senator Leahy. Actually, Senator Grassley and I have done 
things on transparency and accountability for a long, long time 
and I am glad we are doing that today. For the past 2 weeks, I 
have fought to protect our committee's jurisdiction over what 
is the cornerstone transparency law, the Freedom of Information 
Act.
    There have been attempts on the Senate floor to weaken the 
Freedom of Information Act and I have fought against that. We 
have done a lot of bipartisan efforts, as Senator Cornyn of 
Texas, the assistant Republican Leader, and I have worked very 
closely on this.
    We have to ensure our open government laws are strong and 
protected or we do not hold departments accountable. I have 
taken this position, whether we have had Republican or 
Democratic administrations. We are an amazing country in the 
ability to have accountability and it makes us a stronger and 
better country.
    Inspectors General are central to this mission, and I 
applaud all who are here today. A lot of you work long hours. I 
meet some of you on occasion. I applaud the work you do. You 
play a crucial role in ensuring that Federal agencies and their 
employees operate efficiently, effectively, and within the 
scope of the law.
    For no other agency is this watchdog role more important 
than for the Department of Justice. In the Department of 
Justice, the policies affect our privacy, our liberty and our 
constitutional rights. For IGs in the agency to be affected 
they have to have access to information and documents necessary 
to conduct program reviews, audits, and investigations.
    There has been--and it has been referred to here---this 
longstanding dispute between DOJ and its Inspector General over 
access to grand jury and other types of investigative material. 
That is blocking what was once a free flow of information.
    In a previous life, I worked with grand juries a lot. I 
understand the questions of secrecy but I understand the 
importance. In several vitally important program reviews, the 
IGs had to fight for access to documents.
    I think this dispute impeded the IG's review of bulk 
collection of Americans' phone records under Section 215 of the 
Patriot Act. I also impeded an ongoing review of the Drug 
Enforcement Administration's bulk collection of phone records 
for routine criminal investigations. The very first independent 
review of a program, it was conducted in secret for decades 
under both Democratic and Republican administrations.
    To be an effective agency watchdog, the Inspector General 
needs complete and full access to agency information. I want to 
thank Deputy Attorney General Yates for efforts to work 
collaboratively with Inspector General Howard to help find a 
resolution. Under the leadership of Deputy Attorney General 
Yates, we finally have an opinion from the Office of Legal 
Counsel clarifying this position.
    The new policies in place help get information flowing 
again, but that is only a temporary solution. It leaves open 
the possibility that DOJ could still withhold information from 
the IG under certain circumstances. I think we need a more 
permanent solution, one that ensures that the IGs have access 
to the records they need to do their job. I will work closely 
with Senator Grassley to craft a legislative solution. I think 
the two of us can do that.
    I see that Senator Cornyn is here and I hope this has not 
brought about a recall petition on you in Texas, but I was 
praising you just before you came in and your work on FOIA.
    Senator Cornyn. Don't stop now.
    Senator Leahy. OK.
    [Laughter.]
    Senator Leahy. I will put my whole statement in the record, 
Mr. Chairman. As I mentioned, I will also note, for the 
members, the 10:30 vote has now been put up to 2.
    [The prepared statement of Senator Leahy appears as 
submission in the record.]
    Chairman Grassley. Could I ask the witnesses to please rise 
and raise your right hand?
    [Whereupon, the witnesses were duly sworn.]
    Chairman Grassley. Thank you.
    Michael Horowitz, the first witness, is Inspector General 
of the Department of Justice; Mr. Kevin Perkins will speak 
after him, Associate Deputy Director, Federal Bureau of 
Investigation. Mr. Carlos Uriarte is an Associate Deputy 
Attorney General at the Justice Department. Thank you. Last, 
Mr. Dave Smith, Acting Inspector General, Department of 
Commerce.
    Go ahead, Mr. Horowitz.

STATEMENT OF HON. MICHAEL E. HOROWITZ, INSPECTOR GENERAL, U.S. 
                     DEPARTMENT OF JUSTICE

    Mr. Horowitz. Thank you, Mr. Chairman, Ranking Member 
Leahy, members of the committee. Thank you for inviting me to 
testify today about the critical importance of Inspector 
General access to information, and thank you for your strong 
bipartisan support of the Inspector General community.
    The problem of our access to information is a relatively 
new one. Prior to 2010, neither the Justice Department nor the 
FBI questioned our legal authority to access all documents in 
its possession and we obtained grand jury, wire tap, and credit 
information without legal objection and without the need for a 
legal opinion.
    Indeed, it would be hard to imagine how we could conduct 
effect oversight of the FBI, the DEA, and other law enforcement 
components if we were prohibited from reviewing information 
like grand jury and wire tap information that those agencies 
frequently use.
    The OIG always handles such information with great care and 
we fully and completely comply with all statutes limiting the 
use and disclosure of such information. Indeed, we have been 
provided with access to some of the U.S. Government's most 
sensitive information in order to conduct our oversight and 
there has not been a single occasion in our 27-year history 
where we have been accused of mishandling such information.
    However, in 2010, FBI lawyers concluded that our office 
could not have legal access to such information, despite its 
past practice and despite the fact that no laws had changed. 
FBI lawyers also identified 10 other categories of records 
where they believed we might not be entitled to access.
    Since that time our office has faced numerous challenges to 
our access to Department records, seriously impacting our 
ability to conduct oversight. In May 2014, Deputy Attorney 
General Cole asked the Office of Legal Counsel for an opinion 
addressing the FBI's legal objections to our access to grand 
jury, wire tap, and credit information.
    The OLC issued its opinion 2 weeks ago and concluded the 
following: first, the Inspector General Act does not--does 
not--entitle our office to access grand jury, wire tap, and 
credit information; second, our office can only obtain such 
records if the disclosure exceptions listed in the grand jury, 
wire tape and credit laws permit Inspector General access; 
third, in every instance--every instance--the decision whether 
these disclosure exceptions apply will be made by Department 
employees, not by the OIG staff; fourth, finally, as the 
Department itself acknowledges, there are circumstances where 
disclosure to the OIG would not be permitted.
    The legal underpinning of the OLC opinion represents a 
serious threat to not only my independence, but to that of all 
Inspectors General. A hallmark of the IG Act that Inspectors 
General are entitled to independent access to all information 
in an agency's possession has been pierced.
    For the first time since the IG Act was passed in 1978, the 
word ``all'' in Section 6A of the IG Act no longer means all. 
Placing agency staff in the position of deciding whether to 
grant an Inspector General access to information turns the 
principle of independent oversight that is enshrined in the 
Inspector General Act on its head.
    Additionally, we are concerned as a community that 
following this OLC opinion, agencies may object to producing 
other categories of records that are subject to non-disclosure 
provisions. Indeed, we understand that preliminary research has 
identified hundreds of laws that contain similar restrictions 
in them.
    This potential uncertainty as to what information agency 
personnel can provide to Inspectors General could result in 
their becoming less forthcoming with their IGs because of 
concern that they could be accused of improperly divulging 
information.
    Such a shift in mindset also could deter whistleblowers 
from directly providing information to Inspectors General 
because of concern that the agency may later claim that the 
disclosure was improper and use that decision to retaliate 
against the whistleblower.
    The only means to address this threat to Inspector General 
independence is for Congress to promptly pass legislation that 
affirms the independent authority of Inspectors General to 
access, without delay, ``all'' information and data in an 
agency's possession that an Inspector General deems necessary 
to its oversight function.
    The legislation should unambiguously state that we in the 
Inspector General community have long understood, that no law 
restricting access to information applies to Inspectors General 
unless that law expressly so states and that such unrestricted 
Inspector General access extends to all records available to 
the agency, regardless of location or form.
    Independent oversight by Inspectors General make our 
government more effective and efficient. Inspectors General 
have saved taxpayers hundreds of billions of dollars since the 
Inspector General Act was passed in 1978.
    Refusing, restricting, or delaying an Inspector General's 
independent access to records and information may lead to 
incomplete, inaccurate, and significantly delayed findings and 
recommendations which in turn may prevent the agency from 
promptly correcting serious problems and deprive Congress of 
timely information regarding the agency's activities.
    It also may impede or otherwise inhibit investigations and 
prosecutions related to agency programs and operations. On 
behalf of the Council of Inspectors General, 72 Federal 
Inspectors General, we look forward to working closely with 
this Committee and with the Congress on a legislative solution.
    I would be pleased to answer any questions that the 
Committee may have.
    Chairman Grassley. Thank you for standing up for what the 
law requires.
    [The prepared statement of Mr. Horowitz appears as 
submission in the record.]
    Chairman Grassley. Mr. Kevin Perkins.

   STATEMENT OF KEVIN L. PERKINS, ASSOCIATE DEPUTY DIRECTOR, 
                FEDERAL BUREAU OF INVESTIGATION

    Mr. Perkins. Good morning, Chairman Grassley and members of 
the Committee. I am pleased to appear before you today to 
discuss the FBI's efforts in ensuring that the Inspector 
General has timely access to records necessary to complete its 
reviews, audits, and investigations consistent with existing 
law.
    The FBI takes very seriously its obligation to enable the 
IG to conduct effective oversight of all of its activities. In 
all of our activities we have been transparent with the 
Department, the Inspector General, and Congress concerning the 
challenges presented by seemingly conflicting statutory 
commands. Notwithstanding these challenges, the FBI has 
provided nearly 400,000 pages of documents and 136,000 emails 
to the IG in the past year alone.
    These documents were produced in response to 118 document 
requests submitted by the OIG to the FBI, which also contained 
an additional 343 sub-parts. During this same time, the OIG 
initiated 20 new audits and over 30 investigations at the FBI. 
To fulfill the OIG's request and those of the GAO and other 
oversight entities, the FBI has dedicated almost a dozen 
individuals full-time to these tasks.
    The FBI and the OIG have worked cooperatively to expedite 
the IG's access to materials consistent with the law. In the 
past few months, the FBI has also taken additional steps to 
ensure the OIG receives documents in a timely manner, 
specifically the FBI has moved its document collection and 
production function back to the Inspection Division. Since that 
time, the FBI has consistently provided documents to the OIG in 
advance of requested deadlines.
    In addition, the Bureau is actively working to complete the 
one remaining aspect of a document request that was subject to 
a prior notification to Congress under Section 218 of the 
Consolidated and Further Continuing Appropriations Act.
    In that instance, the IG has already received all requested 
emails and the majority of the 1,325 attachments contained 
therein, with the final portion of attachments slated to be 
delivered to the OIG within the next week, so the FBI will have 
completely eliminated all backlog of documents going to the IG.
    We remain committed to continuing to work with Congress and 
the OIG to ensure that the IG has access to ``all'' information 
it requires to fulfill its essential oversight functions of the 
Department. More specifically, we reiterate our commitment to 
work with the OIG and Members of Congress on legislation that 
enables the Department to comply with the law while providing 
the IG with the documents he needs as quickly as possible.
    Thank you for the opportunity to appear here this morning, 
and I will be happy to answer any questions you may have, sir.
    Chairman Grassley. I appreciate all the statistics you gave 
us, but mathematically all of those do not equal A-L-L, all.
    [The prepared statement of Mr. Perkins appears as 
submission in the record.]
    Chairman Grassley. Mr. Uriarte.

STATEMENT OF CARLOS URIARTE, ASSOCIATE DEPUTY ATTORNEY GENERAL, 
                   U.S. DEPARTMENT OF JUSTICE

    Mr. Uriarte. Good morning, Chairman Grassley, Ranking 
Member Leahy, and members of the Committee. I am pleased to 
appear before you today to discuss the Department's commitment 
to ensuring that the Office of the Inspector General has timely 
access to all records necessary to complete its reviews, 
audits, and investigations. The Department greatly appreciates 
your commitment to guaranteeing that the IG can effectively and 
efficiently fulfill its critical oversight functions.
    As Attorney General Lynch and Deputy Attorney General Yates 
have stated consistently and unequivocally, the Department 
shares the belief that an effective, efficient, and independent 
IG is absolutely critical to a well-functioning Department of 
Justice.
    Notwithstanding our view that the IG should be able to 
obtain all of the information it believes necessary to perform 
its important oversight role, the Department has grappled with 
two different and potentially conflicting sets of statutory 
commands.
    On the one hand, Congress enacted the Inspector General 
Act, which grants each Inspector General a right to access all 
records of the agency within its jurisdiction.
    On the other hand, Congress passed statutes that tightly 
regulate the disclosure of sensitive law enforcement 
information to protect individual rights to privacy and due 
process. To assist the Department in resolving this complex 
question of statutory interpretation, then-Deputy Attorney 
General Jim Cole requested a formal opinion from the Office of 
Legal Counsel.
    That request focused on three specific statutes that 
include stringent restrictions on disclosure: first, the 
Federal Wire Tap Act, which restricts law enforcement and 
investigative officers from disclosing interception 
communications; second, Rule 6E of the Federal Rules of 
Criminal Procedure, which restricts attorneys for the 
government from disclosing grand jury information; and third, 
Section 626 of the Fair Credit Reporting Act, or FCRA, which 
protects consumer credit information obtained pursuant to a 
national security latter.
    Since that time, the Department has continued to work with 
the IG to ensure that access to the materials it needs and has 
directed all components and agencies to provide the IG, in a 
timely fashion, all of the documents needed to complete its 
reviews to the extent permitted by law. In fact, we are unaware 
of any occasion in which the IG has sought access to wire tap, 
grand jury, or FCRA materials and did not receive them.
    Additionally, these three categories of information have 
historically constituted a very small minority of the overall 
materials sought by the IG. Since her appointment as Acting 
Deputy Attorney General and following her confirmation, Deputy 
Attorney General Yates and the Department have worked 
diligently to find a solution to these issues and we continue 
to work with the IG in a genuine spirit of cooperation and 
collaboration to expedite its access to records it needs.
    Pending the completion of the OLC opinion in April 2015, 
Deputy Attorney General Yates issued a Department-wide 
memorandum to implement a new process to ensure that the IG 
promptly received wire tap, grand jury, and consumer credit 
information where it believed the material was necessary for it 
to complete its reviews, consistent with then-controlling 
statutes.
    The memorandum noted that the, I'm quoting here, ``IG 
serves an important function in ensuring that the Department of 
Justice is run efficiently, effectively, and with integrity'', 
and the memorandum made clear that responding to the IG's 
request is of the highest priority.
    On July 23, OLC published its memorandum on the scope of 
the Inspector General Act. The opinion concludes that the three 
noted statutes permit the Department to disclose covered 
information to the IG in connection with many, but not all, of 
the IG's investigations and reviews. The OLC opinion concludes 
that the IG Act does not override the limits on disclosure 
contained in the Wire Tap Act, grand jury rules, and FCRA.
    As the opinion explains in details, the IG Act does not 
refer to those statutes or the information they protect and its 
broad, general language did not contain a sufficiently clear 
statement that Congress intended to override those statutes' 
carefully crafted limitations.
    On July 27, Deputy Attorney General Yates issued a 
Department-wide memorandum providing guidance consistent with 
the OLC opinion. Consistent with that opinion, the guidance 
directs components to provide wire tap and consumer credit 
material directly to the IG, and states that attorneys for the 
government, as defined in the Federal Rules, may provide grand 
jury material to the IG, consistent with the restrictions in 
the grand jury rules.
    Finally, I want to reiterate that the Department's 
leadership shares the believe that an effective, efficient, and 
independent Inspector General is absolutely critical to a well-
functioning Department of Justice. As I stated earlier, the 
Attorney General and the Deputy Attorney General are committed 
to working with the IG and Members of Congress on legislation 
that enables the Department to comply with the law while 
ensuring that the IG receives all the documents it needs to 
complete its reviews as quickly as possible.
    To that end, we have had a number of constructive 
conversations with the DOJ IG about a legislative solution that 
would ensure that he gets all the documents he requests. While 
these conversations are ongoing, we hope to have a concrete 
legislative proposal that we can discuss with the committee in 
the near future.
    Thank you for the opportunity to appear here today and to 
provide the Department's perspective on these important issues.
    Chairman Grassley. Mr. Uriarte, thank you very much.
    [The prepared statement of Mr. Uriarte appears as 
submission in the record.]
    Chairman Grassley. Mr. David Smith.

   STATEMENT OF DAVID SMITH, ACTING INSPECTOR GENERAL, U.S. 
                     DEPARTMENT OF COMMERCE

    Mr. Smith. Chairman Grassley, Ranking Member Leahy, and 
members of this committee, I appreciate the opportunity to 
appear before you today regarding the recent opinion issued by 
the Office of Legal Counsel and its impact on the ability of 
offices of Inspectors General to carry out our mission.
    In addition to the description Inspector General Horowitz 
provided you of the chilling effects this opinion will have on 
the work of IGs, I want to provide you a specific example of 
how the opinion impacted my office even before the opinion was 
released.
    This is not just a Justice OIG problem, nor is it limited 
just to law enforcement data. Earlier this year we began an 
audit of the International Trade Administration's Enforcement 
and Compliance Business Unit's efforts to ensure it was 
conducting quality and timely trade remedy determinations. In 
April 2015, the audit team determined that the OIG needed 
access to business proprietary information which was submitted 
to ITA during proceedings and requested the data from ITA.
    Both ITA and the Department of Commerce Office of General 
Counsel raised concerns that providing this business 
proprietary information for an audit would be a violation of 
the Tariff Act of 1930, as amended, and in conjunction with the 
Federal Trade Secrets Act, could expose the Department to 
potential criminal litigation and penalties. The Department's 
Office of General Counsel reached out to the Department of 
Justice Office of Legal Counsel for guidance on this matter.
    According to the Department's Office of General Counsel, 
OLC said they were coming out with an opinion, expected 
imminently, that would provide a framework to advise on this 
subject.
    In light of the potential criminal penalties, the 
Department's Office of General Counsel concluded it was 
advisable to wait until the OLC opinion was released. 
Subsequently, the Department's Office of General Counsel stated 
that while ITA may be able to release data to our office for an 
investigation particular to a specific proceeding, there is no 
exception in the Tariff Act applicable to an audit.
    In trying to work collaboratively with ITA to obtain access 
to this information, we proposed that ITA anonymize the data by 
removing company names. However, according to ITA, all the 
requested data fields were business proprietary information.
    Additionally, we suggested that we could provide an 
assurance statement indicating that we understand the 
importance of safeguarding business proprietary information 
from unauthorized disclosure. However, the Office of General 
Counsel stated that, given the fact the OLC opinion said it 
would release an opinion with a framework to use in resolving 
statutory conflicts with the IG Act, the Department's Office of 
General Counsel felt it was still advisable to wait until the 
OLC opinion was released.
    The Office of General Counsel asserted that the Tariff Act 
amendments that came into effect after 1978 when the IG Act was 
passed did not reflect an OIG's authority to access the 
information.
    After 2 months of trying to get access to the information 
we had no choice but to terminate our audit because of the 
Department's refusal to provide the requested information based 
on advice from OLC.
    Conflicting laws hamper an OIG's ability to fulfill its 
mission. Under the IG Act, which, is to promote economy, 
efficiency, and effectiveness in the administration of, and to 
prevent and detect fraud and abuse in such programs and 
operations. As discussed above, the Tariff Act and the Trade 
Secrets Act were cited as the reasons for denying OIG access to 
records.
    However, the IG Act authorizes the IGs to have access to 
all records, reports, audits, reviews, documents, papers, 
recommendations, or other material available to their 
Department. This access should pertain to all government 
records.
    I join with the Inspector General community in urging the 
committee and Congress to address these issues in light of the 
OLC opinion and its impact on our ability to provide oversight 
of our Departments and agencies.
    I will be pleased to take your questions.
    [The prepared statement of Mr. Smith appears as submission 
in the record.]
    Chairman Grassley. Thank you all very much for your 
testimony We will have 7-minute rounds for questions.
    Some of my purpose this morning will be to find out whether 
or not IGs have mishandled sensitive information. It is 
difficult--and I guess I would ask the two, Mr. Uriarte and Mr. 
Perkins, to pay attention to my first question. It's difficult 
to understand what problems the Department was trying to solve 
by reversing its previous position in 2010 and claiming for the 
first time that these various non-disclosure statutes override 
the Inspector General Act.
    Over the past 26 years, the Justice Department Inspector 
General has been provided access to some of the most sensitive 
information available to the Department. I am not aware of even 
one allegation during that time that the Inspector General 
mishandled or inappropriately released any sensitive 
information.
    I will start out with Mr. Perkins. I would like to ask you 
and Mr. Uriarte to speak about, are there any--are you aware of 
any allegations in that 26-year history of the IG releasing any 
sensitive information?
    Mr. Perkins. No, Senator. I am not aware of any breach of 
that during the IG's tenure.
    Chairman Grassley. OK.
    Mr. Uriarte. Senator, I, too, am not aware of any instance 
in that tenure, but I can say that from a policy perspective 
the Department firmly believes that the IG should get 
everything that he needs to complete his reviews.
    Chairman Grassley. OK. Now, Mr. Horowitz, isn't it true 
that you are subject to the same restrictions on public release 
of sensitive information as everyone else in the Department?
    Mr. Horowitz. That's correct, Mr. Chairman. That's why we 
comply as rigorously as we do with them.
    Chairman Grassley. Then I have to ask, what's the issue? If 
the Inspector General has to protect sensitive information as 
well and has never violated any of the statutory restrictions, 
then what would be wrong with just providing the IG full access 
to everything under the same conditions prior to 2010? I will 
start with you, Mr. Perkins.
    Mr. Perkins. Thank you, Senator. I think, to put it in the 
proper context, there was no policy change in 2010 that threw 
things from one side to the other. There were some process 
changes that took place at that point in time, but to put that 
in context I would even take it further back to right around 
2001 in the McVeigh, Oklahoma bomb records review, which was 
one of the first early on reviews conducted by the previous 
Inspector General, Glen Fine, a significant document request, 
significant interview request, a lengthy review process that 
was really charting new ground for the Bureau.
    The point I want to make here is, starting with that, 
throughout the rest of the decade leading up to a pivotal point 
in 2009-2010, it is an evolutionary process even beyond that to 
this day, to where today we have pivoted to a point where--and 
I think the Inspector General will agree--outside the current 
issues with the OLC opinion, that the process in place today is 
the best it's ever been and continues to improve.
    That aside, 2009-2010 was part of an overall evolutionary 
process. As we went forward, there were more and more 
investigations, more and more document requests. Questions were 
raised by our own General Counsel's office: are we in 
compliance with the law; are we doing things properly? Their 
review of that raised concerns.
    I know that prior to 2010, for instance, with grand jury 
material, none of that was turned over to the IG until we were 
totally assured that those handling the documents were 
appropriately placed on 6E lists known to the court. When that 
was done, documents were turned over. There is a documented 
process all throughout that decade leading up to that point.
    Moving forward, it is a combination of the General Counsel 
expressing concern whether or not we were acting within the law 
as well as--in turning over documents--as well as the fact that 
as we went into 2011, 2012, until this current day, increases 
in technology improvements and how we search for documents 
vastly increased the number of records that were coming through 
the process.
    It was just a matter of volume at that point, whereas in 
2005 when we had a document request technology did not allow as 
thorough and deep-dive searches that we can conduct today for 
the IG, thus in my opening statement, the hundreds of thousands 
of documents that are being produced today could not have been 
produced back then because of technology restrictions. So it is 
a combination of all those things that have come together and 
brought us to the point we are at today.
    Chairman Grassley. I am sure you have given a sincere 
answer. It sounds to me like a lot of red tape and waste of 
manpower that doesn't accomplish anything when the people that 
are supposed to get the information don't get the information 
and they haven't had any documented wrongdoing on their part.
    I would ask you to respond, Mr. Uriarte.
    Mr. Uriarte. Thank you, Senator. I would completely agree 
with you that we would like to streamline this process as much 
as possible. I do think that Deputy Attorney General Yates has 
taken a number of steps to do that, but we would like to go 
further because, as I said, from a policy perspective we do 
think that the Inspector General should get all the documents 
he requests.
    What we are grappling with here in the OLC opinion is 
really a legal question about the interaction of these two 
different statutory schemes, on the one hand, the very general 
nature of the access provision in the IG Act and the very 
stringent restrictions under Title 3, Rule 6E, and the Fair 
Credit Reporting Act.
    Those relate to, as I mentioned before, intercepted 
communications, grand jury proceedings, and credit information 
collected about individual Americans. There are really 
carefully thought-through restrictions that Congress included 
in those statutes, given the sensitive nature of that material.
    For example, in grand jury proceedings the information 
about those proceedings is protected from disclosure because of 
the nature of those proceedings and how that might impact, say, 
an individual who came before the grand jury as a witness or an 
individual who was the target of a grand jury and who was never 
indicted.
    Those processes and procedures in the Federal Rules of 
Criminal Procedures are there to protect the secrecy of those 
proceedings, protect the due process rights of the individuals 
involved, and we think Congress thought very hard about that 
before moving forward with that legislation.
    Again, we understand the general access provision in the IG 
Act, but we were grappling with--or what OLC was grappling with 
was those conflicting statutory concerns. We think that we can 
work with Mr. Horowitz and with the Congress to get to you 
legislation that would address this issue. That is why we have 
started the process that we have started.
    Chairman Grassley. OK. I'm going to end by asking Mr. 
Horowitz to respond to what you just heard.
    Mr. Horowitz. Mr. Chairman, as I indicated in my statement, 
as you indicated in your questions, before 2010 we had multiple 
reviews where we got grand jury information, where we got Title 
3 information, where we got wire tap information, credit 
information. No one went to the Office of Legal Counsel for an 
opinion to give us that. We got it in a timely manner, we got 
it promptly.
    We have had access to very significant information through 
our reviews of the Hanson spy matter, the 9/11 attacks, the 
President's surveillance program, national security letter 
reviews, exigent letter reviews, Patriot Act reviews, FISA 
related reviews.
    I could go on and on about the kind of work we've done, the 
kind of oversight we conducted before 2010 without anybody 
objecting to our access to that material based on any legal 
reasoning. It makes little sense to us what happened in 2010 
that would all of a sudden change that when Congress changed no 
laws, the Department changed no policies, no practices were 
changed. We just kept doing the same kind of oversight we had 
done before 2010.
    Chairman Grassley. Yes. In the order of arrival it would be 
Tillis, Perdue, and Cornyn. Mr. Tillis, go ahead. Before you 
go, at 11 we are not going to shut down this hearing. Mr. 
Tillis will take over for a short meeting I have with the 
Majority Leader. Senator Tillis.
    Senator Tillis. Thank you, Mr. Chair. Gentlemen, thank you 
for being here today.
    You know, just before I ask questions, we had a Committee 
hearing last week with the IRS and we had some concerns, again, 
with what a cynical view would suggest is a series of road 
blocks for getting the right information to either Congress so 
that we can perform our oversight duties, and I think an 
increasing trend where those who are the watchdogs out at 
various agencies being able to get access to the information 
they need.
    One question I have, and I think I'll start with maybe 
either Mr. Smith or Mr. Horowitz responding to a comment that 
Mr. Perkins made. Do you believe that the process now is the 
best it has ever been? Mr. Smith, we'll start with you and then 
go to Mr. Horowitz.
    Mr. Smith. The process that there is at the Department of 
Commerce, they are still evaluating the OLC opinion. I know 
that from a letter from the IRS, they are also looking at the 
OLC opinion to block information to their Inspector General. 
I'm not sure there is a process, per se, at the Department of 
Commerce, other than to believe what the OLC opinion is, that 
it's a general permission and the specific acts that are out 
there that do not State the IG has access trump that.
    Senator Tillis. Mr. Horowitz, I know that Mr. Perkins was 
referring specifically to the process within DOJ. How do you 
feel about it?
    Mr. Horowitz. I would say the process changes that have 
occurred recently, moving the lawyers from the FBI out of the 
process--as a lawyer, I can say this--is a good thing. Fewer 
lawyers is better. That has improved the process.
    Having said that, we didn't have this discussion before 
2010 about whether the process was good or bad, we just got the 
records. That's the bottom line. We shouldn't have to have a 
discussion, and I shouldn't have to spend my time and--frankly, 
the Deputy Attorney General and the Deputy Director, who have 
stated their support and made these changes, I'm sure they have 
much more important things to do than in managing their 
organizations than figure out what process is the best process. 
Just get us the records that we're entitled to.
    Senator Tillis. Mr. Uriarte, am I pronouncing your name 
right?
    Mr. Uriarte. Yes, that is correct, sir.
    Senator Tillis. You mentioned a couple of times that the 
position that the Department is taking right now is just 
founded on your interpretation of the law. My question is, 
since we're lawmakers and we can change laws, what should we do 
to be able to get back to a process that we thought was working 
relatively well prior to 2010?
    Is that something the Department would support? In other 
words, to the point of also saying that as a result of your 
interpretation you've come out with the current policy 
memorandum. What do we need to change to get back to an ``all 
means all'', pre-2010 position, and is that something that the 
Department would support?
    Mr. Uriarte. Absolutely, Senator. As I think I stated in my 
opening, we are very committed to working with Congress on a 
legislative solution here. We do think a legislative solution 
here is workable and it is something that we absolutely support 
to address this issue. We do not, as the Inspector General 
mentioned, want to be in the position of having to deal with 
these issues.
    We think he should get everything he needs and erase any 
question about his independence, absolutely. To that end we've 
started a number of conversations with Mr. Horowitz and the--
you know, between the Department's leadership and Mr. Horowitz. 
I think those have been constructive and we hope to be able to 
have something that we can concretely discuss with the 
Committee shortly.
    Senator Tillis. Mr. Horowitz, I think my colleagues in 
Appropriations, the Department of Justice Appropriations Act of 
2015, they attempted to address this, I think, by enacting 
Section 218. Is that the fix, or what more do we need to 
consider to have go through the Congress?
    Mr. Horowitz. We thought it was the fix but the legal 
counsel--Office of Legal Counsel's decision decided it wasn't 
the fix, decided that provision was ambiguous. Certainly from 
our standpoint, having interacted with the appropriators on 
that, they thought they were clarifying, not leaving an 
ambiguous provision out there. What we thought was a fix turned 
out not to be that because of the way the Office of Legal 
Counsel decision interpreted that statute.
    Senator Tillis. Then how do we get very quickly--because to 
me I'm not an attorney. Actually, the ratio went down. It was 
two-thirds non-attorneys just a minute ago until Senator 
Grassley left. I'm not an attorney, but it seems to me this is 
a fairly straightforward thing.
    We know what your interpretation is. You can kind of 
reverse engineer that interpretation into what you need to get 
back to 2010. Why aren't we discussing here the specific 
proposed legislation that I hope, on a bipartisan basis, we 
could pass to fix this problem.
    Mr. Horowitz. Senator, I do think there are--that 
legislation needs to say very expressly in Section 6A of the IG 
Act, which is the provision that currently says ``all'' but is 
now no longer ``all'', in order to get back to all we need to 
have a language in that provision that says quite clearly, 
unequivocally and expressly, that unless another law restricts 
Inspector General access to those records, ``all'' means 
``all''. The Inspector General gets the records. That is 
apparently, as a result of this opinion, what needs to be done.
    Senator Tillis. Thank you.
    Senator Cornyn.
    Senator Cornyn. I'm sorry the Chairman's not here so I can 
tell him how important this hearing is. This may be one of the 
most important hearings we've had in the U.S. Congress in a 
long, long time. People forget the fact that we have a duty, a 
constitutional obligation as the Congress, to do investigations 
and oversight.
    What this OLC opinion does, is it undermines the oversight 
that Congress has under the Constitution. I don't know why the 
Attorney General, General Lynch, the new Attorney General, 
can't just change the underlying policy back to what it was in 
2010 so it complies with the Inspector General statute.
    How in the world somebody can come up with a legal opinion 
of 66 pages, is what I count--67--and say that the law since 
1978 is somehow preempted by these carve-out positions and 
``all'' does not mean ``all'' just defies any common sense 
whatsoever in any legal theory that I'm aware of. It's a 
responsibility of a judge or a lawyer renewing a legal opinion 
to try to reconcile and harmonize the law, not to say, well, 
this trumps it, we decided in 2010 that this--that we were 
going to trump or preempt this ``all'' means ``all'' provision 
from 1978.
    I just find it very disturbing, but frankly it continues a 
trend that we've seen under the previous Attorney General 
where--he was the first Attorney General that I'm aware of ever 
been held in contempt of Congress for failing to disclose 
information in the Fast and Furious investigation, which Mr. 
Horowitz knows an awful lot about and upon which he's rendered 
at least one report.
    It strikes me as--unfortunately, the Department of Justice 
has become so politicized that it essentially is ignoring the 
mandate of Congress. I don't know why we should have to pass 
another law saying we really meant it in 1978 when we said 
``all''. We really, really mean it this time. That's 
ridiculous.
    I wish the Attorney General would take a close look at 
this. There have been Office of Legal Counsel opinions that 
have been withdrawn in the past that were obviously erroneous, 
and this one should be.
    I hope she'll take a look at it. I have a lot of respect 
for Attorney General Lynch. I think she has the capacity to 
change the way the Department of Justice has been operated and 
I hope she--I wish her luck. She'll certainly have my support.
    I also want to just mention the fact that the President has 
continuously failed to appoint Inspectors General in a timely 
fashion. For example, the Department of Veterans Affairs has 
needed an Inspector General for 582 days, yet the President has 
not made an appointment despite letters from Congress urging 
him to do so. The role that each of you plays, that Inspectors 
General play, is absolutely critical to the functioning of our 
democracy and for our capacity for self-government.
    If any agency is in need of an Inspector General, it's the 
scandal-ridden VA. If the Department of Interior, which has 
needed a new IG since 2011, is any indicator, it will be 
another 1,714 days before President Obama gets around to making 
an appointment. That's three times longer than he has been in 
office. That's simply unacceptable.
    What concerns me as well is the fact that apparently, by 
one estimate, nearly 40 percent of formal OLC opinions are not 
publicly disclosed in any way. I wonder how many other OLC 
opinions there are that choose to reinterpret longstanding law 
in a way that restricts the public's access, restricts the 
Inspector General's access to be the watchdog that we intended 
the Inspector Generals to be. I'm very concerned about that and 
I hope Senator Grassley, Chairman Grassley, will pursue that 
further.
    The joint Department of Justice testimony states that the 
OLC memo was requested to quote, ``assist the Department in 
resolving the complex legal issues implicated by the 
interaction of three statutes discussed.'' However, by all 
accounts prior to 2010, no one thought the issue was 
complicated at all.
    What happened in 2010 to make what no one had before 
identified as an issue so complex? Can you share any insight, 
Mr. Horowitz or Mr. Perkins? I'll open it up to all of you, if 
you have any insight. What happened in 2010 to change the 
existing law?
    Mr. Horowitz. I was not the Inspector General at that time, 
but my understanding is that the memos and decisions from the 
legal counsel at the FBI followed several OIG reviews of the 
handling of national security letters, exigent letters, and 
other hard-hitting OIG reviews, because there was no other 
change in the law, no policy change, no regulatory change. The 
same law, Section 6A, said ``all'' then, it says the same thing 
today. The grand jury, Title 3, credit information didn't 
change either. So there's certainly no legal issue that 
occurred in 2010.
    Senator Cornyn. Based on the reasoning of the OLC opinion, 
I'm not sure Congress is capable of passing anything more 
comprehensive than saying ``all''. I don't know. Anybody have 
any words you would suggest that we include in that statute 
that would clarify this, that ``all'' really does mean ``all''? 
I notice some people are chuckling. It is laughable. It is 
laughable and it's really completely unacceptable.
    This is, unfortunately, part of the politicalization that 
we found under the previous Attorney General that I think has 
just been a complete embarrassment.
    Mr. Chairman, I would yield back.
    Senator Tillis. Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman. I had 
another meeting; I'm sorry I was a bit late. This is certainly 
an important topic. Why don't we start with Mr. Uriarte and Mr. 
Perkins.
    In your joint testimony, you state that the Department of 
Justice has an unwavering commitment to ensuring that the 
Office of the Inspector General has access to all records 
necessary to complete its investigation. Is it your belief that 
the Department is currently turning over documents to the 
Inspector General in a timely fashion?
    Mr. Perkins. Senator, I'll begin. From a timely manner, 
earlier in my testimony I mentioned some process changes within 
the FBI that allows for a greatly expedited review and turnover 
of information to the Inspector General. I believe we have 
worked our way through the vast majority of the backlog to 
where there's only a minimal amount left and we're working very 
closely with the Inspector General.
    I personally work with the Inspector General, as does the 
rest of the staff and his people. I think with the process 
we've put in place right now you will see, and have seen, a 
greatly expedited turnover of documents, still somewhat 
hindered by the fact that we are--I don't want to say hindered, 
but we are bound to follow the law in the OLC opinion as it's 
stated and so there are continuing discussions with the IG on 
that matter but not any that are insurmountable and nothing 
that we can't overcome.
    Senator Klobuchar. OK. Do you want to add anything, Mr. 
Uriarte?
    Mr. Uriarte. I would just say thank you for the question, 
Senator, that the Deputy Attorney General is very supportive of 
the steps the FBI has taken to streamline this process, 
internal to the FBI, and also has taken steps herself through 
the April memorandum and the July memorandum to try to 
streamline the process by which Mr. Horowitz can get 
information even when it is restricted under one of these three 
statutes, and in the process try to minimize the role of the 
Department's leadership to ensure that Mr. Horowitz can get 
what he needs.
    As I stated before, I think we'd like to take that one step 
further and work with Congress and the Inspector General to 
have a clear guidance in terms of the legislation so that we 
can step out of that role entirely.
    Senator Klobuchar. OK. Mr. Horowitz, do you agree with 
their assessment that there's been improvements, and what could 
we do legislatively?
    Mr. Horowitz. Senator, they certainly--the Deputy Director 
of the FBI and the Deputy Attorney General have certainly taken 
steps over the last several months to try and improve the flow 
of information and those are certainly welcome.
    The problem is, as Mr. Perkins indicated, the OLC opinion 
leaves open the fact--once ``all'' doesn't mean ``all'' in 
Section 6A of the IG Act, the question is, so where does that 
stop? Is it just those three statutes or other provisions? The 
FBI has identified 10 other categories that they have concerns 
about.
    Just yesterday, I'm told, in our review of the FBI's use of 
the bulk telephony statute, a review that this Committee has 
very much been interested in our doing, we got records with 
redactions. Not for grand jury, Title 3, or fair credit 
information because those have been dealt with, but for other 
areas that the FBI has identified legal concerns about. While 
the process has improved, we are still getting redacted 
information and it is not resolved.
    Senator Klobuchar. Do you think this should be resolved 
legislatively then to make it clearer, the guidance?
    Mr. Horowitz. There's no other, I think, solution at this 
point. I think the opinion makes that clear.
    Senator Klobuchar. Mr. Horowitz, under the Office of Legal 
Counsel's opinion, as you just mentioned, there's three types 
of information at issue here. You mentioned the Title 3, grand 
jury, Fair Credit Reporting Act information. It is, as we know, 
highly sensitive and confidential. We've certainly had some 
data breaches lately, not only in the government sector but 
also in the private sector. What do you have in place to 
prevent data breaches? I guess I'll also ask that of Mr. Smith.
    Mr. Horowitz. We very much work with the agency that's 
providing the information, if it's the FBI, if it's DEA, if 
it's another component, on how to make sure that we've 
protected the information. If it's grand jury information we 
comply with the grand jury statutes. The same with the others. 
We got--we did a review, as you know, of the President's 
surveillance program following 2001.
    Probably the most sensitive review with the highest level 
of classified and protected information, areas where we were 
told individuals in the White House, some of whom didn't know 
what we were getting access to. To this date we have protected 
that information carefully. We've kept it in a SCIF in further 
protecting in the SCIF. So we are always prepared and always 
willing, and have always protected the information as needed.
    Senator Klobuchar. OK. Mr. Smith, do you want to add 
anything?
    Mr. Smith. We also protect the information that is provided 
to us. Our network itself is separate from the--or is a branch 
off of the Department's network and we have stronger controls 
in place to try and prevent any kind of intrusion. We also 
protect the information, evidence, locking it up and make sure 
that we follow all the rules and requirements. We understand 
that we have an extra duty not only to protect the sensitive 
information, but the information on witnesses, whistleblowers, 
and the like.
    Senator Klobuchar. Mr. Uriarte, sort of going off this 
issue of confidentiality and sensitivity, as a former 
prosecutor I respect the sanctity of the grand jury. As Justice 
Paul once explained, if we make grand jury proceedings public 
some witnesses might not testify, others might not be 
forthcoming and suspects may flee before there's probably cause 
to hold them.
    Do you have any concern that providing grand jury material 
beyond what Rule 6E provides could undermine the institution of 
the grand jury?
    Mr. Uriarte. I think in the context of the Inspector 
General's work and ensuring that he's getting everything he 
needs to complete his reviews, we have found a way to get him 
that information consistent with Rule 6E, and certainly, you 
know, in providing that, you know, ask that we follow--that 
they follow the same restrictions under 6E that our prosecutors 
have to follow.
    I completely agree with you about the importance of the 
grand jury process, and that is one of the reasons why this has 
been such a difficult issue for us to grapple with. From a 
policy perspective we do think that we can work with the IGs to 
get them this information, consistent with those interests.
    Senator Klobuchar. OK. Thank you.
    Mr. Horowitz, along those lines, even when the grand jury 
material is disclosed under Rule 6E, the recipient may not 
disclose it further, right?
    Mr. Horowitz. Right.
    Senator Klobuchar. Should that restriction also apply to an 
Inspector General? In other words, should an Inspector General 
be allowed to disclose the grand jury testimony to the public?
    Mr. Horowitz. It should apply. I'm also a former prosecutor 
and recognize the importance of that information, and we 
regularly proceed pursuant to the restrictions. In fact, with 
all of the information, what we do before any one of our 
reports goes out, is send it to the Department and the 
component. In this case, for example, it would be the FBI.
    They tell us if they think there are restrictions in there 
and what those restrictions are so that our legal judgment can 
be informed by what they believe. We have always complied with 
the law. There has never been an instance in our history since 
we opened our doors in the beginning of 1989 where we have in 
any way violated not only grand jury, but any other provision 
of law.
    Senator Klobuchar. OK. Anyone want to add to that?
    [No response].
    Senator Klobuchar. All right. Thank you very much.
    Senator Tillis. Mr. Horowitz, in light of the change in 
procedures that were outlined in Deputy Attorney General Yates' 
memo from last week, how do you think the protocol is going to 
affect the timeliness of your investigations, getting access to 
the office documents?
    Mr. Horowitz. Certainly my hope is that the change in 
procedures will make the productions occur more promptly 
because it will, our hope is, cut down on who's reviewing it 
and how long that review occurs. The challenge is--again, 
having been a Federal prosecutor--if you look at the OLC 
opinion, and I'll focus on grand jury information, it allows 
Department lawyers, prosecutors, to produce material to the OIG 
if they find it meets that standard.
    I will tell you, as an AUSA, that would be a difficult call 
for me to make to decide whether that information that the IG 
is asking for would help the Department as a whole further its 
criminal oversight investigations. I could foresee 
circumstances where those decisions are bumped up to higher 
levels, which could cause delay. I think at this point the 
question is, how will this all work going forward? I think our 
view is, our hope is, and our belief is, that the process will 
speed up. But as I said earlier, the issue really for us isn't 
are we doing a fast--I mean, it's one of the issues obviously, 
is it fast or slow.
    Senator Tillis. Are you getting everything you need. Yes.
    Mr. Horowitz. Are we getting everything we need, how are 
those decisions being made, who's making them, what don't we 
know in terms of the process, and finally, why do we even need 
this process? Why is this process even in place? As I said, 
just yesterday the enhanced process that has been put in place 
resulted in us getting a production with redactions because 
there are other categories of information that the FBI has 
legal questions about.
    Senator Tillis. Mr. Smith, do you have anything to add to 
that?
    Mr. Smith. Yes, sir, I do. We in the Commerce OIG's office 
are very concerned that other Federal offices may use this OLC 
opinion to routinely delay requests by IGs in getting them 
information. We would not want to see the Department of 
Commerce establish a legal review protocol office that would 
have to review every single request just in case there was some 
statute out there that did not specifically say the IG can have 
this. That, we feel, would definitely hinder our work, slow 
down the process, and affect the information that we're being 
given.
    Senator Tillis. Mr. Horowitz, in your opening comments you 
made reference to whistleblowers. How do you think the protocol 
is going to affect the ability for whistleblowers to report 
misconduct?
    Mr. Horowitz. I think it's a very significant concern for 
us, Senator. Because ``all'' no longer means ``all'' in Section 
6A, employees throughout the Federal Government, whether it's 
at the Justice Department or other agencies, now--where before 
they could come to us with information knowing that under 
Section 6A we had a right to access them, they now think twice. 
Should they come to us with that? How many objections does my 
agency have to producing? We have already heard Department of 
Commerce has an issue.
    Previously, we know the Peace Corps IG had an issue, the 
EPA IG had an issue with access to information because their 
agencies looked at their laws and said, we're not sure you get 
that information. That's a very substantial concern.
    There are--it's nice that a lot of lawyers can sit around 
and write tens of pages about this issue to try and deal with 
the niceties of the legal issue, but we're talking about 
employees throughout the government who aren't lawyers, who've 
identified waste, fraud and abuse, mismanagement, they want to 
come to us with information, they want us to help fix it, and 
the risk is, they have to wonder, what is that 58, 62, whatever 
the number of pages opinion mean for me? If I come to the 
Inspector General for my agency, will I later be retaliated 
against if I do that?
    Senator Tillis. Mr. Smith.
    Mr. Smith. I would agree. I wouldn't necessarily call it 
retaliation because then the agency can say, well, you 
shouldn't have given that information to the IG in the first 
place because it says right here in the OLC opinion they don't 
have rights to it, so there wouldn't even be any whistleblower 
protection against that individual for disclosing information 
that we were not entitled to.
    Senator Tillis. Mr. Uriarte, I understand that the 
Department has indicated they want to work with us and the IG 
to solve the problem. I believe our Committee invited the 
Department to come meet with our staff and the IG on Friday 
after the opinion came out, and for whatever reason the 
Department declined to join the staff at that meeting.
    How many times has your boss met with Inspector General 
Horowitz to discuss a potential legislative fix to this 
problem?
    Mr. Uriarte. Senator, thank you for the question. I can 
tell you that the Office of the Deputy Attorney General and the 
Deputy Attorney General personally has been invested in finding 
a solution to this problem. This was the general problem of the 
access issue. The access issue has been one of the issues that 
she took up right when she got to the Department and was, I 
think, the topic of conversation during some of her earliest 
meetings with the Inspector General.
    She has regular meetings with the Inspector General and 
since we identified this problem and began working toward a 
solution, I have been meeting with Mr. Horowitz and his staff 
to talk about specific legislative solutions and have regularly 
been briefing the Deputy Attorney General about this issue.
    I know she is dedicated to this issue and wants to find a 
solution because she, too, agrees that an independent, 
efficient, and effective Inspector General is essential to her 
duty in running the Department of Justice.
    Senator Tillis. Mr. Horowitz, how would you describe the 
working relationship and the time to completion on getting a 
fix to this? I mean, are you working well together? Do we need 
to accelerate the process? What more do we need to do?
    Mr. Horowitz. We have had productive meetings on a fix. We 
are--I, as chair of the Council of Inspector Generals, working 
with our legislative committee and others, are working through 
a proposal that the Department has put together.
    We anticipate getting back to the Department very quickly 
because we want to be back here at the end of August before the 
Committee and working with the staff to have a legislative 
solution ready to go because every day that goes by where there 
isn't this fix, Inspectors General are stuck and not getting 
independent access. Going back to my earlier point, millions of 
government employees have uncertainty hanging over them as to 
whether they can go to their Inspectors General with problems 
they see that are resulting in waste, fraud and abuse in their 
agency.
    Senator Tillis. Gentlemen, I appreciate it. You know, to 
me, again, being a non-attorney, maybe I just don't suffer the 
tragedy of knowledge that this is more complicated than it 
seems.
    [Laughter.]
    Senator Tillis. You know, if we all seem to be in violent 
agreement that we need to correct this, we have a 67-page 
opinion--a lot of work went into that--it seems to me if we put 
about as much work in focus into the fix than we will have 
something at the end of August to act on, and that is what we 
need to do.
    If we fail to do it, I think it's a failure on the part of 
all parties to fix what to me is a blinding flash of the 
obvious, something that needs to be fixed. Thank you all for 
your testimony. We appreciate your time here today. We are 
going to bring forward the next panel. Thank you.
    Actually, before we have the panelists sit down, we'll go 
ahead and have you remain standing so you can be sworn. 
Actually, we'll give them an opportunity to settle in. Welcome.
    If you'll please raise your right hand.
    [Whereupon, the witnesses were duly sworn.]
    Senator Tillis. Thank you. You may be seated.
    The panelists we have now are Ms. Danielle Brian, the 
executive director of the Project on Government Oversight; 
Professor Paul Light is a Paulette Goddard Professor of Public 
Service at the Robert G. Wagner Graduate School of Public 
Service at New York University; and Mr. Brian Miller is the 
former Inspector General for the General Services 
Administration and currently works as the managing director of 
Navigant Solutions, Incorporated. Welcome.
    Ms. Brian, we'll start with you.

  STATEMENT OF DANIELLE BRIAN, EXECUTIVE DIRECTOR, PROJECT ON 
          GOVERNMENT OVERSIGHT (POGO), WASHINGTON, DC

    Ms. Brian. Thank you, Senator. Founded in 1981, POGO is a 
nonpartisan and independent watchdog that champions good 
government reforms. Chairman Grassley and others have observed 
that the IGs serve as the Congress's eyes and ears within the 
executive branch, but in order to serve as the eyes and ears of 
Congress, and by extension the American public, an IG office 
must have an unrestricted view of the agency that it oversees.
    I would argue, it is those documents an agency hesitates to 
provide an IG for review that may be the most important for the 
IG to have. The very purpose of having an independent IG is 
undermined if the office has to seek the agency's permission in 
order to carry out its mission.
    Agency actions that restrict an IG office's access to 
records, in turn, limit Congress and the public's ability to 
oversee the executive branch and hold it accountable. Chairman 
Grassley and other congressional leaders on both sides of the 
aisle have rightly condemned the OLC's opinion. We've been 
hearing it through the first panel.
    IGs cannot possibly be effective watchdogs if they are 
forced to negotiate with the very target of their investigation 
for access to their records. In comments to POGO, Professor 
Charles Tiefer, a former Deputy General Counsel of the House of 
Representatives, said the OLC opinion treats DOJ as if it were 
quote, ``above the law''. DOJ can now use, as he described, the 
``Midas touch approach to turning materials secret''.
    We are particularly concerned about the consequences for 
whistleblowers who are on the front lines, exposing agency 
malfeasance, as was raised by you, Senator Tillis. The OLC's 
opinion could have a chilling effect on potential 
whistleblowers at the FBI, DEA, and other offices who would 
want to provide the IG with evidence of wrongdoing in sensitive 
operations, but would understandably fear their communication 
with the IG would itself be a prosecutable offense.
    If followed, the OLC opinion would also thwart the IG's 
ability to investigate claims of whistleblower retaliation, as 
was the case when the FBI delayed access to records in two 
recent OIG whistleblower reprisal investigations. The OLC 
opinion, in essence, hands control over to the subject of 
investigation to decide whether or not it wants to cooperate.
    As it turns out, this is not the first time the OLC has 
challenged the authority of Federal watchdogs. Prior to the 
passage of the IG Act, the OLC opined that the proposed dual 
reporting requirement of IG offices to Congress, as well as the 
agency head, would violate the separation of powers doctrine. 
In another opinion, the OLC held that the GAO was restricted by 
law from accessing intelligence information.
    As we have heard, the effects of the OLC's latest opinion 
are already being felt beyond DOJ now to Commerce and the IRS, 
demonstrating it is already had immediate and dangerous 
consequences for the independence of IG offices across the 
Federal Government.
    IG offices face several other barriers as well that I'd 
like to take the opportunity to raise now in this hearing. 
Under Section 8E of the Inspector General Act, the DOJ IG is 
required to refer any allegations of misconduct involving DOJ 
attorneys to an internal investigative unit, the Office of 
Professional Responsibility, or OPR.
    Based on data obtained under FOIA, POGO found that OPR 
documented hundreds of cases of recklessness or intentional 
misconduct by DOJ attorneys over the past decade. However, OPR 
does not release identifying information in its records, unlike 
the Inspector General, meaning we have no way of knowing if 
anyone was held accountable.
    It is hard enough for the DOJ IG when it has to fight with 
department leaders for access to agency records. It is even 
harder for them to hold DOJ accountable when it is legally 
restricted from investigating an entire category of alleged 
wrongdoing by DOJ personnel.
    The Attorney General, further, has the authority to 
prohibit the DOJ IG from carrying out audits or investigations 
that would require access to information concerning sensitive 
operations. Top officials at other agencies, including the 
Secretary of Defense, the Secretary of Treasury, the Postal 
Service Board of Governors, and the Secretary of Homeland 
Security, have similar powers under the law.
    Although these provisions require the agency head to 
affirmatively stop an IG investigation rather than requiring 
the IG to ask permission, this provision gives us at POGO 
pause. We only know of one instance invoked of this provision 
by the Attorney General, but we believe the Congress should ask 
the GAO to review how often this provision has been invoked by 
other agency heads.
    POGO has a number of other recommendations in my written 
testimony. I will highlight only a few. Obviously, Congress 
should clarify that ``all'' means ``all'', as we have been 
hearing repeatedly. The DOJ IG should also be given the 
explicit authority to investigate allegations of misconduct 
throughout that agency, including allegations of prosecutorial 
misconduct committed by DOJ attorneys.
    Senator Grassley, your bill also addresses problems IGs 
face matching data across agencies, and we think that is an 
important improvement. Finally, as was mentioned by Senator 
Cornyn, Congress should continue to put pressure on the White 
House and agency heads to fill IG vacancies with independent 
and aggressive watchdogs.
    Thank you for inviting me to testify today. We look forward 
to working with the Committee to strengthen IG independent and 
to ensure that oversight is fair and effective.
    [The prepared statement of Ms. Brian appears as submission 
in the record.]
    Senator Tillis. Professor Light.

 STATEMENT OF PAUL LIGHT, PROFESSOR, ROBERT G. WAGNER GRADUATE 
  SCHOOL OF PUBLIC SERVICE, NEW YORK UNIVERSITY, NEW YORK, NY

    Professor Light. It is such a pleasure to testify before 
this Committee, and the Chairman in particular, who is from 
Iowa, and I'm from South Dakota. I trust you'll be gentle with 
our lesser State, although we don't think it so.
    I have a couple of statements, pretty much to the point. 
No. 1, I am extremely familiar with the legislative record of 
this Act dating back to 1976, that particular statute 
establishing the HEW OIG, which is not mentioned in the OLC 
opinion. I know this history. I'm not a legal scholar, but I am 
a legislative historian. I will say point blank, the OLC 
opinion is wrong, absolutely wrong.
    When I start my classes at NYU I tell all of my students 
that they have an ``A'', every last one, and that I will give 
them an ``A'' if they can hold it. You would be surprised, 
perhaps--perhaps not--at how many students seek to give it 
back! I think in this particular case, OLC has given it back. 
They worked hard to construct the opinion, they really did.
    I wasn't intimidated by that because I've read 
dissertations that are much longer, but I give them an ``A'' 
for effort on this. They worked very hard to make the case that 
there are conflicting statutes at hand.
    My conclusion is that there are no conflicting statutes at 
hand, that the IG Act is plain in intent, contains provisions 
that require the IGs to pay attention and use integrity with 
regard to any statutes that might require non-disclosure, and 
that the non-disclosure issue is not at all in conflict with 
access to information.
    There are plenty of disciplinary procedures in place for 
the Attorney General to stop an investigation if he or she 
should see the need to prevent disclosure by the IGs. That, to 
me, raises the question of why the Senate and House would have 
given the Attorney General such extraordinary power to halt, 
``prohibit'' in the language of the 1988 special provisions, to 
``prohibit'' an audit investigation or issue on subpoena by the 
IG if the IG didn't have that information by right under 
statute.
    Why did the OLC, in 1990, urge the IGs to exercise extreme 
caution if Congress requests information if the OLC at that 
point in time did not believe the IGs would have such 
information? It makes no sense to me.
    Nevertheless, we all know that this opinion will spread 
through the IG community and through the Departments and 
agencies like crop circles in my home state cornfields, and it 
has. You must do something, but I don't think it is a 
sophisticated, heavily negotiated act. Having drafted plenty of 
legislative reports when I was here as a staffer and 
congressional fellow, I urge you to please go lightly on the 
requirement that your staff draft a dense legislative report on 
this.
    The pivot point in this entire opinion, at least for me, is 
in the Attorney General's statutory authority to supervise, or 
in this case to direct and control, the Inspectors General. 
That's where this comes from. You might simply amend the 
statute to read that this particular authority does not include 
withholding.
    Let me just conclude--I mean, we can talk in question and 
answer about this--that the key conclusion in this opinion is 
that Section 6(1) permits withholding. My Adobe Reader on my 
computer works, I think, and I searched every last record that 
I had, every last hearing, every last legislative report, 
conference report, the legislation, I cannot find the word 
``withholding'' used or granted as a tool of prevention.
    The Attorney General has the authority to prevent 
disclosure of sensitive information, but not through 
withholding. Not through withholding. These statutes are not in 
conflict, which renders the OLC opinion of little interest, 
unnecessary, unless it is taken up by other agencies and the 
Department of Justice and used to propel dense, complex 
negotiations that themselves will constitute a violation of the 
IG statute which prohibits or encourages the IGs, I should say, 
to prevent fraud, waste and abuse and promote economy and 
efficiency.
    This is an easy fix, from my perspective reading the 
record. I urge you to consider that rather than the heavy-duty 
negotiations that you might soon, or that you are currently, 
attempting to enter.
    Last point, I'm not a legal scholar but I am a legislative 
historian and I know this record better than OLC, from my 
reading of the opinion. It's wrong on many points. It 
misinterprets in many areas and draws the wrong conclusion. 
That ``A'' that I would give my student is degraded as you move 
through this report.
    That's all I have to say.
    Chairman Grassley. Thank you, Professor Light.
    Professor Light. You are so welcome.
    [The prepared statement of Professor Light appears as 
submission in the record.]
    Chairman Grassley. Now, Mr. Miller.

STATEMENT OF HON. BRIAN MILLER, FORMER INSPECTOR GENERAL, U .S. 
  GENERAL SERVICES ADMINISTRATION MANAGING DIRECTOR, NAVIGANT 
                CONSULTING, INC., WASHINGTON, DC

    Mr. Miller. Chairman Grassley, distinguished members of the 
Committee, thank you very much for inviting me to testify. It's 
a pleasure to be here. Thank you for your longstanding interest 
in oversight and your support for Inspectors General. It's a 
pleasure to see so many of my former colleagues here behind me 
in the audience. I think this shows just how important this 
issue is to the entire IG community.
    After serving in the Department of Justice for about 15 
years, I had the honor of serving as Inspector General of the 
General Services Administration when I was confirmed in 2005, 
and I served until last year, 2014. I consider myself extremely 
fortunate to have served with so many principled public 
servants and so many brilliant attorneys and others who work 
diligently in the IG community.
    I, too, am concerned about the impact of the OLC opinion. 
I'm concerned about the policy impact. I think we heard 
something very curious a little while ago. Even the DOJ 
officials did not seem to defend the OLC opinion. In fact, at 
one point the representative of the Deputy Attorney General 
stated a different policy. He stated that this information 
should go to the IG. I find that very curious, that not even 
DOJ is supporting this OLC opinion.
    Generally, everyone supports oversight. We need to have 
oversight of Federal agencies, we need to have oversight of how 
they spend money, how they keep our most sensitive and private 
information. That's why we have IGs. To withhold one of the 
important tools that an IG has will have devastating results, 
not just for the DOJ IG, but for all IGs. It's going to make 
IGs's jobs much more difficult.
    The American people expects that the FBI and law 
enforcement departments that actually obtain grand jury 
information and wire tap information and surveillance 
information keep that information confidential, but they also 
want someone to oversee those agencies to make sure that they 
are using that information in the proper way and not misusing 
our most private information.
    They want IGs to get that information. I think that is the 
policy that has been stated in the previous hour, that is the 
policy that everyone seems to agree to even--if I heard the 
representative of the Deputy Attorney General correctly, even 
he stated that.
    In order to have effective oversight, an IG must have 
independence to conduct an investigation, review or audit. This 
includes determining what information is needed. In making this 
determination, it is the judgment of the IG conducting the 
investigation that matters, not the judgment of the agency 
being investigated. The OLC opinion reverses that process and 
makes the judgment of the agency being investigated control the 
judgment of the IG. That's exactly backward.
    To deny the IG information that is needed to reach a 
conclusion or a finding is misguided. It's like trying to build 
a bridge halfway over a river and saying you can't have the 
rest of the material; it just doesn't work, it's disastrous. 
The IG must have all the information to make an accurate 
conclusion and finding.
    The result of the current procedure at DOJ will stall DOJ 
IG investigations while they wait for agency officials to meet 
and rule on the IG's access to this information. They will not 
get the information they need. An investigation that doesn't 
get information will stall, just like a car that doesn't get 
gasoline will stall.
    The IG's job is hard enough already. IGs already have 
problems getting information from agency officials. Various 
legal reasons are often raised to block IG inquiries. Many of 
those get worked out because they're simply unfounded. Many of 
those are based on privacy issues, PII--personally identifiable 
information--concerns, or financial information. Ultimately, 
the IG gets the information but the investigation or audit is 
slowed down.
    In fact, back in about 2009 and 2008, we were having 
difficulty getting unrestricted read-only access to electronic 
data bases at GSA. I wrote an article in the Journal of Public 
Inquiry about it. The process was much similar to this in that 
what the agency wanted to do is shift the burden to the IG to 
prove why we needed the information, so our auditors were 
filling out forms and trying to explain why we had a need to 
know.
    When I found out about this and found out about the delays 
in our audits, I had a series of meetings with the 
administrator. We ultimately worked it out, but it was a 
difficult issue that we had to work through.
    I recommended at the time in that article that there be a 
legislative fix to clarify that all IGs have unrestricted read-
only access to all electronic data bases. I still think that 
would be helpful, but again, it is redundant because the 
language is already clear that ``all'' means ``all''. I urge 
this Committee to make sure that agencies comply with that 
language and that they understand that ``all'' means ``all''.
    Thank you very much.
    [The prepared statement of Mr. Miller appears as submission 
in the record.]
    Chairman Grassley. I'm going to let Senator Tillis go, then 
ask my questions after he's done.
    Senator Tillis. Professor Light, you mentioned that we 
should go light on a legislative--we are where we are with--it 
looks like an ``A'' grade on the OLC report that may be less 
than an ``A'' because you disagree with their conclusion. What 
does a light fix look like, in your opinion?
    Professor Light. I think you will need to add a section of 
definitions.
    Senator Tillis. We----
    Professor Light. Very simple. You know, many statutes, as 
you know, contain definitions of key terms. The two definitions 
at hand here which need to be defined, I think, to dispose of 
this issue--and I give the OLC an ``A'' for effort.
    I think Senator--the Chairman said that--or one of your 
colleagues said that it was really almost a Herculean effort to 
figure out how to make the statute speak to this issue. Really 
impressive, but in terms of the outcome, no.
    Look, you've got to define what the pivot is in here that 
the notion that an agency head or the Attorney General could 
withhold is not dependent on other statutes being with non-
disclosure requirements because the Act already says that the 
IGs have to pay attention to that. It stands on the notion that 
the agency heads and the Attorney General oversee, control and 
direct the IGs, and therefore can withhold.
    At least, that is how I read the opinion. Therefore, ``you 
have to say nothing'' in that provision may be interpreted to 
give the Attorney General or any agency head authority to 
withhold information under Section--the full access section. I 
think you need to define ``all'' a little more, perhaps.
    I mean, you know, the OLC opinion is on point regarding 
Supreme Court decisions regarding the facially broad nature of 
the word. I don't agree. I think ``all'' means crucial and 
fundamental and that the Senate and House worked very hard to 
say how important this was. But go ahead and give OLC some 
help.
    I strongly believe that this memorandum should be 
withdrawn. It's not good for OLC to issue an opinion that is so 
tangled. It does not help their reputation in future memoranda. 
But that's not something that you can order, or would want to 
order. It's very simple, I think.
    Senator Tillis. Mr. Miller, do you have anything to add?
    Mr. Miller. I would add that I like the language suggested 
by the counsel of Inspectors General on integrity and 
efficiency. Their language from their letter to this committee 
reads that a provision would provide that quote, ``no law or 
provision restricting access to information applies to 
Inspectors General unless that law expressly so states and that 
such unrestricted Inspector General access extends to all 
records available to the agency, regardless of location or 
form'' end of quote.
    Senator Tillis. Thank you. In the prior panel's testimony 
and in your opening statements I think it seems to me that we 
all have agreement we need to fix it, even with the Department. 
Professor Light, you made a comment that I think is very 
important, something I'm concerned with.
    We could work real hard, have all these intensive 
negotiation sessions and everything else, but it doesn't seem 
like it's that difficult to me. I think that the month that 
we're spending now needs to come--we need to come up with a 
simple fix, not a $100 saddle on a $10 horse. This is a fairly 
straightforward proposition.
    I won't ask any more questions, except to say for those who 
are involved in this, keep it simple and get it done quickly 
because we need to get the Inspector Generals back to the point 
to where they can do their job, a very important job that 
they've done very well for many, many years.
    Thank you, Mr. Chair.
    Chairman Grassley. Yes. Before I ask questions, I know that 
Senator Leahy has questions in writing to probably both panels, 
so expect that, and maybe from the other members that are not 
here. What's the normal time wait? So up to 1 week, we'll take 
questions for answer in writing.
    [The questions appear as submission in the record.]
    Chairman Grassley. You've all had a chance to read the OLC 
opinion and hear the testimony on the first panel. My first 
question to all three of you is, what do you think the weakest 
link of the OLC opinion is? Ms. Brian?
    Ms. Brian. At the risk of just repeating what's been said a 
number of times,--they're sort of ignoring the fact that the 
Congress meant ``all''. It's similar, frankly, as I know that 
you have dealt with in whistleblower protections where there 
was the question of ``any'', did ``any'' mean any when Congress 
meant any disclosure. It's the same wilful disregard of what 
Congress's intent was.
    Chairman Grassley. Mr. Light.
    Professor Light. You know, it actually was in the order of 
presentation regarding the deletion of the House provision, so 
dealing with a blanket exemption for the Inspector General from 
all the Privacy Act. The OLC reads this and says, well, this 
is, you know, the blow that Congress did not intend full 
access. They deleted this statute with this eloquent language 
or this provision in 1978.
    The OLC actually reached that by saying that deletion 
allows withholding. In fact, the deletion was a very mundane 
effort to clean up the statute. The Senate is looking at the 
House statute and says, you know, this provision is unnecessary 
and it's kind of insulting.
    The Senate was concerned about, you know, all the Justice 
Department's objections to this. There was a 1977 memorandum 
from Justice that was very intense about the 
unconstitutionality of this concept. The deletion of this 
provision is read by OLC as the statement that Congress did not 
mean access to all. It's wrong. The deletion is explained 
earlier in the legislative report, four pages earlier, as, you 
know, we were cleaning up certain features of this Act. That's 
it.
    If you reverse the order, it looks like this dramatic 
moment of great Senate consideration to dump this provision in 
an effort to say ``all'' does not mean ``all''. I found that 
the most disturbing, actually, because you're re-ordering 
legislative history and that is absolutely not acceptable.
    Chairman Grassley. Mr. Miller, before you answer my first 
question I want you to think about the second one, because 
we're looking for the language that would make it clear enough 
to ensure that the Inspectors General really do get access to 
all records belonging to their respective agencies. You can 
answer both of those right now, Mr. Miller.
    Mr. Miller. OK. Thank you, Mr. Chairman.
    I think the probably weakest part of the opinion is when it 
deals with the appropriations language, Section 218. I think 
that was clear and I think the discussion of the OLC opinion, 
that's probably the weakest part. To make it clear, they do 
have language at various parts of the OLC opinion.
    I believe on page 46 or so it talks about the 
notwithstanding language. It mentions that in a number of 
places on page--I think it begins on page 45, but mainly on 
page 46. It talks about other statutes that were--where it 
would not apply because it has language saying notwithstanding 
any other law or notwithstanding any statutory prohibition on 
disclosure, et cetera, et cetera. Then at the end it talks 
about a clear statement being clear, manifest, and unequivocal.
    I think any sort of fix would have to be clear, manifest 
and unequivocal. I think that's on page 56--57 of the opinion, 
the first full paragraph. Again, the problem with saying 
notwithstanding any other law is you run into this problem that 
you mentioned, Mr. Chairman, that there are so many laws, that 
if you tried to list them all and say they don't apply, what if 
you forget one or what if one is passed after the statute? 
There is that problem.
    I do think that the CIGIE, the Counsel of IGs on Integrity 
and Efficiency, did come up with some pretty good language, and 
I quote that language in my written testimony at the end. That 
simply says--actually, I don't have it in front of me right 
now, but I read it earlier.
    That language was very clear and says--ah, here it is. ``No 
law or provision restricting access to information applies to 
Inspectors General unless that law expressly so states and that 
such unrestricted Inspector General access extends to all 
records available to the agency, regardless of location or 
form.''
    Chairman Grassley. OK. I think I'm going to end with this 
question to Ms. Brian. Your organization has been a leading 
advocate of transparency and accountability about as long as 
the IG Act has been in effect.
    In that time we've seen the importance of having watchdogs 
within each agency that are truly independent. What do you 
think will be the practical result of the OLC opinion going 
forward if we don't fix it legislatively?
    Ms. Brian. Thank you, Senator Grassley. Actually, our 
origins--you may recall, we were the Project on Military 
Procurement originally, founded by Dina Rasor and your old 
friend Ernie Fitzgerald.
    That gets to the point of how our biggest concern is the 
implications for whistleblowers who are generally some of the 
first-line people who are reporting to the IGs, so not only 
will they have legitimate concerns, as they already do, about 
coming forward now, this is going to amplify that problem.
    It is also going to prevent the protection of those 
whistleblowers by these IGs, which is what we're hoping the IGs 
are going to be more capable of doing as they move forward.
    We see this as a--unnecessary in some senses because, as 
we've been hearing before, and I think Senator Cornyn made a 
really good point, is if it's wrong they should just withdraw 
it rather than Congress having to change the law because it 
does appear--I'm not a lawyer, but it certainly appears--that 
the Congress was clear in what they meant.
    We all know that the agencies will be able to take 
advantage of what they want to see from the OLC opinion, and as 
a result we do need the Congress to fix this or we are not 
going to get the kind of oversight we need from our IGs.
    Chairman Grassley. Yes. I want to thank all of you for your 
testimony, and particularly for the large number of people we 
have had from the various IG offices. Thank you all very much. 
We intend to fix this. We will get it fixed and we will have 
IGs do their job, which is very important.
    They are very essential to those of us that take the 
constitutional responsibility of oversight very seriously. They 
help us in that regard. They aren't the only people in 
government that help us with that, but they are a very 
important part of it.
    Thank you all very much.
    [Whereupon, at 11:52 a.m. the hearing was concluded.]
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