[Congressional Record Volume 141, Number 150 (Monday, September 25, 1995)]
[Senate]
[Pages S14151-S14155]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          DOT INSPECTOR GENERAL REPORT CONCLUDES NO WRONGDOING

  Mr. FORD. Mr. President, earlier this year newspaper reports detailed 
allegations that FAA personnel may have withheld or destroyed documents 
to avoid the public release of information embarrassing to our 
colleague and Democratic leader Daschle and Deputy Administrator Linda 
Daschle, his wife.
  Shortly after there appeared further allegations that Mrs. Daschle 
may have violated the terms of her recusal at the FAA by involving 
herself in the agency's consideration of certain policy proposals by 
the leader for the consolidation of air charter inspections.
  The distinguished chairman of the Senate Subcommittee on Aviation, 
Senator McCain, requested a full investigation of these allegations by 
the Department of Transportation office of inspector general.
  Senator Daschle supported that request because he felt the 
allegations needed a thorough inquiry.
  Last Thursday, after an exhaustive investigation of 7 months, the 
inspector general released his report finding no basis in fact for 
these allegations.
  Mr. President, whenever allegations originally are carried in the 
press with great fanfare, are investigated and found to be groundless, 
fairness to all concerned requires that we take the same notice of the 
resolution as we did the original charge.
  Mr. President, let me read just one paragraph from the inspector 
general's report as it relates to these allegations. I think it says it 
all.

       This investigation disclosed no evidence to substantiate 
     that documents were destroyed as alleged. Nor did this 
     investigation disclose evidence to substantiate that Deputy 
     Administrator Daschle violated her recusal. Accordingly, it 
     is recommended that this investigation be closed.

  For the benefit of those who may have missed the stories in 
Saturday's newspapers, Mr. President, I ask unanimous consent that the 
report of the inspector general be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  [From the Department of Transportation, Office of Inspector General]

     Report of Investigation--Alleged Destruction of FAA Documents 
                        Concerning B&L Aviation


                             i. predication

       This investigation was predicated on a letter from Senator 
     John McCAIN to Inspector General A. Mary SCHIAVO dated 
     February 8, 1995, requesting an investigation into 
     allegations raised by Gary M. BAXTER, Aviation Safety 
     Inspector, Federal Aviation Administration (FAA), Great Lakes 
     Regional Office, Des Plaines, Illinois. Senator McCAIN 
     transmitted a letter which BAXTER wrote to Senator Larry 
     PRESSLER dated January 3, 1995, containing four separate 
     allegations, one of which alleged destruction of records. On 
     February 3, 1995, FAA Administrator David HINSON also 
     referred the allegation of record destruction to the OIG 
     requesting an investigation.
       BAXTER alleged that unspecified FAA documents were 
     destroyed by FAA personnel during the processing of a request 
     for documents under the Freedom of Information Act (FOIA). 
     The FOIA request was made by Attorney Matthew MALONEY in 
     April 1994, seeking records pertaining to B&L AVIATION (B&L) 
     of Rapid City, South Dakota. MALONEY represents the families 
     of two of the victims of a February 1994, crash of a B&L 
     aircraft in North Dakota. Essentially, BAXTER alleged that 
     documents were destroyed because the public release of those 
     documents may be embarrassing to Senator Tom DASCHLE of South 
     Dakota and his wife, Linda DASCHLE, who is Deputy 
     Administrator of the FAA.
       Linda DASCHLE was nominated FAA Deputy Administrator by the 
     President on November 19, 1993, and confirmed by the Senate 
     on November 20, 1993. At the outset of our investigation, 
     Deputy Administrator DASCHLE disclosed to the OIG that in the 
     summer of 1994, she had selected an FAA employee from Rapid 
     City, South Dakota, to temporarily serve on her immediate 
     staff. This disclosure raised issues concerning Deputy 
     Administrator DASCHLE's recusal from matters involving her 
     husband because the employee had been directly involved in 
     working with Senator DASCHLE's staff during 1993 and 1994 on 
     the issue of consolidated inspections.


                             ii. background

       On February 24, 1994, a plane owned and operated by B&L, 
     crashed in Minot, North Dakota. The crash killed everyone on 
     board, including a B&L pilot and three Indian Health Service 
     doctors. The investigation by the National Transportation 
     Safety Board (NTSB) cited both pilot error and poor weather 
     conditions as factors contributing to the crash.
       B&L was established in 1968 by Mr. Merl BELLEW and a former 
     partner. The company consists of an air taxi operation, a 
     repair station, and a pilot school. It employs approximately 
     eight individuals and owns and operates approximately 20 
     small aircraft. B&L is an authorized FAA air taxi operation, 
     in accordance with 14 CFR Part 135. As such, it is required 
     to undergo bi-annual inspections by the FAA in order to 
     ensure its compliance with Federal Aviation Regulations 
     (FARS). Additionally, B&L contracts with certain government 
     agencies to provide various services. These agencies include 
     the Department of Agriculture (USDA), U.S. Forest Service 
     (USFS) and the Department of Interior (DOI), Bureau of Indian 
     Affairs (BIA).\1\ Unlike the FAA which inspects for 
     compliance with the FARS, these agencies inspect for 
     compliance with contract specifications once a year.
     Footnotes at end of article.
---------------------------------------------------------------------------
       Over the past 10 years, Senator DASCHLE has performed 
     constituent services on behalf of B&L which involved contacts 
     by Senator DASCHLE and his staff with officials of the FAA. 
     The most significant area of constituent service involved the 
     issue of consolidated inspections for aviation charter 
     operations.
       In 1992, BELLEW personally raised the issue of 
     consolidating aviation inspections to Senator DASCHLE. B&L 
     voiced concern over alleged redundant inspections conducted 
     by the FAA and the USFS. This prompted the Senator to become 
     involved on behalf of his constituent. Between June 1992, and 
     April 1994, Senator DASCHLE and his staff pursued the issue 
     of consolidating aviation inspections through meetings and 
     correspondence with the FAA and the USFS.
       Senator DASCHLE ultimately introduced an amendment to the 
     Federal Crop Insurance Reform and Department of Agriculture 
     Reorganization Act of 1994 transferring USDA aviation 
     inspection authority to the FAA. The amendment was 
     unanimously adopted by the Senate but resulted in compromise 
     legislation based on questions raised by Congressman Charlie 
     ROSE. The compromise legislation required a study be 
     performed by a joint FAA/USDA review committee. In its 
     report, dated May 1995, and signed by the Secretaries of 
     Agriculture and Transportation on July 31, 1995, the 
     committee concluded that ``Alternate 1 [i.e., the current 
     system] was the only alternative which fully satisfied the 
     mission preparedeness and safety oversight criteria contained 
     in the Act.''

[[Page S 14152]]

       By letter dated August 8, 1995, Senator DASCHLE requested 
     that the Government Accounting Office (GAO) review the 
     results of that study and address nine specific questions 
     concerning the issue of consolidating inspections, leaving 
     the issue unresolved. The merits of Senator DASCHLE's 
     proposal were beyond the scope of this investigation.
       Our investigation identified issues beyond the scope of the 
     alleged destruction of documents and the related issue of 
     Deputy Administrator DASCHLE's recusal. These issues are 
     being resolved through a separate inquiry by the OIG.


                           iii. jurisdiction

       The Office of Inspector General (OIG) for the Department of 
     Transportation (DOT) was created under the Inspector General 
     Act of 1978 (P.L. No. 95-452). Under the Act, the OIG has 
     broad authority to conduct audits and investigations 
     concerning the programs and operations of the DOT. The DOT is 
     comprised of 10 Operating Adminsitrations including the FAA. 
     In conducting investigations under the Act, determinations 
     are made concerning investigative authority. The following 
     jurisdictional determinations were made in this case:
       1. The allegation concerning the alleged destruction of FAA 
     documents was made by an FAA employee and concerned several 
     aspects of the programs and operations of the FAA including 
     the FAA's regulatory oversight of B&L. OIG determined that 
     investigative authority over alleged destruction of FAA 
     documents, is within the jurisdiction of the OIG. OIG also 
     determined that investigative authority over the FAA's 
     regulatory oversight of B&L is within the jurisdiction of the 
     OIG.
       2. An issue was also presented concerning the recusal of 
     FAA Deputy Administrator Linda DASHCLE. On February 6, 1995, 
     Deputy Administrative DASCHLE disclosed to OIG that she had 
     selected an FAA employee from Rapid City, South Dakota, to 
     temporarily serve on her immediate staff. This employee had 
     been directly involved in working with Senator DASHCLE's 
     office on the proposal to consolidate aviation inspection. 
     OIG determined that investigative authority over the Deputy 
     Administrator's adherence to her recusal is within the 
     jurisdiction of the OIG.
       3. In many cases, issues are presented in which the 
     investigative authority of the OIG overlaps with other 
     investigative authority. For example, constituent service 
     performed by a U.S. Senator and the programs and operations 
     of the USFS are not within the jurisdiction of the DOT/OIG. 
     The NTSB is independent of DOT and, therefore, is not subject 
     to OIG audit or investigation. However, the Intersection 
     between FAA employees and USFS personnel; the interaction 
     between FAA employees and Senator DASCHLE and his staff; and 
     the interaction between FAA and NTSB personnel were each 
     relevant to the investigation of the alleged destruction of 
     documents. Accordingly, OIG determined that investigative 
     authority over these interactions is within the jurisdiction 
     of the OIG.


                            IV. METHODOLOGY

       The OIG staff conducted the following interviews: (1) 
     Senator Tom DASCHLE; (2) Linda DASCHLE, the Deputy 
     Administrator of the FAA; (3) A current and former member of 
     Senator DASCHLE's staff; (4) FAA officials who interacted 
     with the Deputy Administrator's office; (5) FAA officials 
     involved in responding to the FOIA request; (6) FAA Aviation 
     Safety Inspectors in Rapid City, South Dakota; (7) United 
     States Forest Service personnel; and (8) Departmental and FAA 
     ethics officials.
       The OIG staff obtained and reviewed the following 
     documents: (1) a copy of the documents submitted by the FAA 
     to MALONEY in response to the FOIA request; (2) FAA files 
     related to the FOIA request; (3) working files of those 
     responsible to respond to the FOIA request; (4) documents 
     requested from Senator DASCHLE's office; (5) Senator Hank 
     BROWN's inquiry to the FAA pertaining to B&L, based on a 
     letter from Bill DICKSON, Regional Aviation Officer, USFS, 
     dated April 1984; and (6) documents pertaining to the recusal 
     of the Deputy Administrator from FAA matters involving her 
     husband and South Dakota.
       The OIG staff obtained and reviewed the following reports: 
     (1) the ``Statement of the Office of Senator Tom Daschle 
     Regarding Consolidated Federal Air Charter Safety Inspections 
     and Related Matters,'' issued on February 17, 1995, in 
     response to media attention given to Senator DASCHLE's 
     relationship with B&L (2) NTSB Factual Report on the B&L 
     crash, NTSB ID: CHI94GA093; (3) ``Boeing 757 Wake Turbulence, 
     A Review of the Actions of the Federal Aviation 
     Administration;'' (4) ``Interagency Aviation Inspections, A 
     Joint USDA/DOT Study,'' Report to the United States Congress 
     Pursuant to Section 306 of the Federal Crop Insurance Reform 
     and Department of Agriculture Reorganization Act of 1994, 
     P.L. 103-354.


                        V. INVESTIGATIVE RESULTS

                  A. Alleged destruction of documents

                              1. Synopsis

       We investigated the alleged destruction of documents 
     related to the April 1994, FOIA request pertaining to the 
     February 1994, crash of an aircraft owned and operated by 
     B&L. The crash, which resulted in the death of three U.S. 
     Department of Health and Human Services, Indian Health 
     Service (IHS) doctors, and a pilot employed by B&L, occurred 
     while B&L was performing services under an IHS contract.
       We concluded that no documents were destroyed. However, we 
     confirmed that FAA withheld certain documents. The FAA 
     transmittal of documents to MALONEY indicates that some 
     documents were withheld ``for legal review'' but fails to 
     appropriately cite applicable exemptions and fails to 
     reference the scope of the documents withheld, thereby 
     denying the requester the right to appeal under the FOIA. The 
     documents withheld primarily consisted of B&L company manuals 
     which may have been withheld under FOIA exemption four, Title 
     5 U.S.C. Sec. 552(b)(4). This exemption allows for the 
     withholding of privileged or confidential commercial 
     information. Nonetheless, the FAA was required to specify 
     this in the response to MALONEY, which was not done. We 
     attribute this to carelessness and a significant lack of 
     procedures in the FAA for handling FOIA requests. We also 
     identified three sets of circumstances which resulted in 
     BAXTER's suspicions that documents were being destroyed. 
     Details surrounding those circumstances are provided below.
       Our conclusions regarding a lack of proper procedures for 
     handling FOIA requests parallel the findings contained in a 
     report by the Department of Transportation's General Counsel 
     and the FAA Deputy Administrator in July 1994, concerning a 
     FOIA request on the Boeing 757 Wake Turbulence issue. We 
     confirmed that the FAA has taken corrective actions in 
     response to that report, the report had not been issued and 
     the corrective actions were not yet in place at the time of 
     the MALONEY FOIA request.

                             2. Background

       The statutes and regulations applicable to this matter 
     include: Title 5 U.S.C., Section 552, the Freedom of 
     Information Act; Title 49 C.F.R., Part 7; FAA Order 1200.3, 
     Public Availability of Information; and Title 18 U.S.C. 2071, 
     Concealment, removal, or mutilation of records and reports.
       Gary M. BAXTER, Aviation Safety Inspector, FAA, Great Lakes 
     Region (GLR), was the Staff Specialist assigned to handle B&L 
     FOIA requests. By letter, dated January 3, 1995, to Senator 
     Larry PRESSLER, BAXTER alleged that documents which were 
     releasable under the FOIA were improperly withheld or 
     destroyed. The FOIA request in question, dated April 27, 
     1994, was filed with the FAA by Matthew MALONEY, Attorney, 
     SHERMAN, MEEHAN & CURTIN, P.C., Washington, D.C. The FOIA 
     request was for documents in the custody of the FAA 
     pertaining to B&L, an FAA certified air taxi operation. The 
     request listed nine categories of documents including ``all 
     data or information in the custody of the FAA received from 
     any government agency or official, including elected 
     officials.''
       On May 5, 1994, BAXTER forwarded the FOIA request to Cathy 
     JONES, Manager, FAA, Flight Standards District Office (FSDO), 
     Rapid City, South Dakota, the office responsible for B&L's 
     certification. JONES directed her staff in the FSDO to gather 
     all B&L related documents and provide them to her. On May 12, 
     1994, BAXTER verbally advised JONES she did not have to 
     provide: national database information; her notes notifying 
     her employees of the B&L accident; her instructions to her 
     employees about gathering information to assist the NTSB; and 
     documents relating to B&L's pilot school and repair station. 
     Nonetheless, JONES decided to only segregate her notes and 
     the national database printout. Our inquiry disclosed that 
     JONES sent all other documents, including the pilot school 
     and repair station records, to BAXTER.
       In his letter to Senator PRESSLER, BAXTER stated: ``She 
     [JONES] told me that the Division Manager of Flight Standards 
     Division had told her to destroy some parts of B&L's Operator 
     File because of Senator DASCHLE's intervention on behalf of 
     his wifes [sic] (Linda DASCHLE #2 in the FAAs) friend Mr. 
     Merl BELLEW, (Owner of B&L Aviation). She went on to say that 
     she did get rid of some of the documents but forgot exactly 
     what other parts she was told to destroy.''

        3. Circumstances which raised suspicions about documents

       Our inquiry disclosed no evidence that David HANLEY, 
     Division Manager, FAA GLR, or JONES, destroyed or withheld 
     documents in response to the FOIA request. Additionally, 
     HANLEY did not instruct JONES to destroy or withhold any 
     documents pertaining to the FOIA request. JONES and HANLEY 
     each provided sworn affidavits denying the allegations. 
     However, the inquiry disclosed that three sets of 
     circumstances involving the FAA's handling of documents 
     contributed to the basis for questions raised by BAXTER 
     concerning the response to the request.
     a. The Bown memorandum
       The first circumstances involves a misinterpretation of 
     instructions from JONES to BAXTER. On May 13, 1994, JONES 
     called BAXTER to advise she was sending the FOIA package to 
     him. During that conversation, JONES suggested to BAXTER that 
     HANLEY review the documents. JONES wanted the package of 
     documents reviewed because it contained an unedited draft 
     memorandum of a meeting between Richard BOWN, Operations Unit 
     Supervisor, Rapid City FSDO, and William DICKSON, Regional 
     Aviation Officer, United States Forest Service (USFS), 
     Lakewood, Colorado. At the time of its original preparation, 
     in December 1993, two paragraphs from the draft version were 

[[Page S 14153]]
     edited out before the memorandum was finalized. This editing was done 
     at the direction of HANLEY because he viewed these paragraphs 
     as containing BOWN's opinions. OIG's review of the draft 
     memorandum disclosed that BOWN's opinion supported the 
     consolidation of inspections. The final version of the 
     memorandum was sent to Senator DASCHLE's staff by BOWN at the 
     request of Senator DASCHLE. Because the draft memorandum 
     differed from the final version, JONES was unsure whether 
     the release of the document under the FOIA request was 
     appropriate and wanted HANLEY to review the document.
       Our inquiry disclosed JONES affixed a yellow post-it note 
     to the package of documents which indicated HANLEY needed to 
     review the package containing the draft memorandum described 
     above. Despite written and verbal requests from JONES to 
     BAXTER for HANLEY to review the documents, BAXTER did not 
     follow through on JONES' request and HANLEY never saw the 
     documents. The FOIA response was signed out by [deleted] 
     Flight Standards Division, FAA GLR, for HANLEY on July 14, 
     1994.
     b. The package of Forest Service documents
       The second circumstance which contributed to BAXTER's 
     suspicion involves a package of 61 pages of USFS documents 
     pertaining to B&L, which were received by BAXTER from JONES 
     in response to a subsequent B&L FOIA request in December 
     1994. During an interview, BAXTER told the OIG these 
     documents raised concern on his part because he did not 
     receive them from JONES during his processing of the earlier 
     MALONEY request and because one document in particular was 
     titled ``Response to DASCHLE Squeeze.''
       We have reviewed the documents in question. They contain 
     information pertaining to USFS inspections which were 
     critical of B&L, and USFS opinions of the FAA which were also 
     critical. The documents also detail efforts by Senator 
     DASCHLE's office to have the USFS relinquish its inspection 
     authority. However, our investigation disclosed that at the 
     time the FAA responded to the MALONEY FOIA request in July 
     1994, the FAA was not in possession of these documents. The 
     FAA did not receive these documents until September 1994, 
     when they arrived in the Rapid City FSDO. The documents were 
     sent to Rapid City by an air safety investigator, National 
     Transportation Safety Board (NTSB). An interview of the NTSB 
     investigator disclosed that the documents received were from 
     an attorney (name unrecalled by the NTSB investigator). The 
     investigator told the OIG that since the accident 
     investigation of the B&L aircraft that crashed in February 
     1994, had been concluded, the documents were of no further 
     use and were forwarded to the Rapid City FSDO.
     c. Documents withheld for further legal review
       The third circumstance involves 28 pages that were 
     initially withheld in July 1994, under the MALONEY FOIA 
     request. These documents contained, among other things, 
     information relating to the FAA's interaction with Senator 
     DASCHLE's office and USFS inspections of B&L. In November 
     1994, MALONEY inquired as to the disposition of the 
     documents. BAXTER became suspicious of the way these 
     documents were handled when he inquired with the Office of 
     Assistant Chief Counsel (OACC), GLR, and learned they had 
     misplaced the documents. Upon receipt of a second copy of the 
     documents from BAXTER, OACC eventually approved their 
     release.
       In a cover letter sent with the initial release of 
     documents to MALONEY, dated July 14, 1994, the FAA GLR 
     indicated that they released 615 pages in response to the 
     FOIA request. They advised MALONEY that ``the Great Lakes 
     Assistant Chief Counsel is currently reviewing a small number 
     of pages. This office will respond to you regarding the 
     additional information as soon as it has been cleared.'' Our 
     interview with the GLR Assistant Chief Counsel's Office 
     disclosed they misplaced the documents in question, and, 
     therefore, forgot to review them. Our investigation disclosed 
     OACC never located their original copy of the pages but 
     obtained a second copy from BAXTER. Following a subsequent 
     written request by MALONEY in December 1994, these additional 
     pages were reviewed and released.

                4. OIG's analysis of FAA's FOIA response

       Our investigation disclosed that the FAA maintained no 
     record of the documents released nor did they maintain an 
     exact duplicate set of the documents produced in response to 
     the MALONEY FOIA request. Instead the investigation disclosed 
     the FAA lacked proper procedural guidelines in handling FOIA 
     requests as described below. As part of our inquiry, we 
     obtained from MALONEY a copy of all documents he received in 
     response to his FOIA request. We also obtained a copy of the 
     documents from the FAA, Office of Public Affairs (OPA), 
     for comparison purposes.\4\
       The documents sent to OPA were prepared by [deleted] FAA, 
     GLR, on February 7, 1995. As part of that process, [deleted] 
     told the OIG [deleted] created a handwritten index of items 
     sent and withheld under the MALONEY FOIA request.\5\
       The handwritten index reads as follows:

Items sent to APA [sic]                                       616 Pages
    1. Provided to RAP FSDO by USFS on 9-23-92.......................13
    2. Letter from Sen. DASCHLE to Administrator.....................89
    3. Follow up Action by PMI.......................................32
    4. Repair Station File...........................................45
    5. DME File......................................................17
    6. Current 135 File.............................................276
    7. Archived 135 File............................................144
                                                             __________

      Total.........................................................616
Items not sent
    1. Accident Prevention Counselor File............................23
    2. Written Test Examiner File....................................52
    3. Pilot School File.............................................93
    4. IA File.......................................................18
                                                             __________

      Total.........................................................186

       The index identified seven groups of records sent to 
     MALONEY (616 pages) and four groups withheld (186 pages). 
     Individual documents were not identified with either 
     group.\6\
       Our analysis determined the following discrepancies:
       1. The items indicated on the index as ``Items not sent'' 
     were, in fact, sent to MALONEY in July 1994.
       2. The ``Accident Prevention Counselor File'' identified as 
     Item (1) in the ``Items not sent'' section consisted of five 
     pages, not 23 as indicated. We determined this through 
     interviews and a review of the original file at GLR.
       3. The ``Repair Station File'' identified as Item (4) in 
     the ``Items sent to APA'' section was, in fact, not sent to 
     MALONEY. The file consisted of the company manual and related 
     documents.
       4. The ``Current 135 File'' identified as Item (6) in the 
     ``Items sent to APA'' section consisted of 275 pages. 
     However, MALONEY only received 124 pages. The 151 pages not 
     received were the ``B&L Aviation Company Manual.'' \7\
       5. The ``Provided to RAP FSDO by USFS on 9-23-93'' group of 
     documents identified as Item (1) in the ``Items sent to APA'' 
     section consisted of 23 pages. MALONEY received only nine of 
     these pages. The remaining four pages, which were USFS 
     documents, were not sent.
       In addition, we compared the pages withheld for legal 
     review by the OACC with the documents initially received by 
     MALONEY. The comparison disclosed that in the original 
     response to the FOIA request, MALONEY, in fact, received all 
     of the substantive documents. Therefore, MALONEY received the 
     documents twice, in July 1994, and December 1994. This 
     contradicts FAA GLR's assertion that the documents were 
     ``withheld'' by OACC.

             5. Senator Daschle's interaction with the FAA

       We examined the official activities of FAA personnel in 
     connection with B&L during the period 1985 to 1995, including 
     the issue of consolidating aviation inspections of air 
     charter companies. This examination also included a review of 
     documents provided by Senator Daschle's office in response to 
     our request. We also interviewed Senator Daschle and current 
     and former members of his staff. These investigative steps 
     were necessary in order to identify documents generated in 
     connection with Senator Daschle's interaction with the FAA 
     and thus identify the universe of documents which may have 
     been the subject of the alleged destruction.
       The investigation disclosed three pertinent areas of 
     constituent service performed by Senator Daschle involving 
     B&L, during the period 1985 to 1995. In each case, Senator 
     Daschle's efforts were in response to complaints about 
     specific government aviation inspectors or inspection 
     processes. The most significant area involves the issue of 
     consolidating aviation inspections. Our examination of 
     documents provided by Senator Daschle's office disclosed no 
     documents which may have been the subject of destruction by 
     FAA employees.

                             6. Conclusion

       As stated above, our inquiry disclosed no evidence that 
     David Hanley, Division Manager, FAA, GLR, or Jones, destroyed 
     or withheld documents in response to the FOIA request. 
     Additionally, Hanley did not instruct Jones to destroy or 
     withhold any documents pertaining to the FOIA request. Jones 
     and Hanley each provided sworn affidavits denying the 
     allegations.
       Our inquiry concluded that the FAA GLR's procedures for 
     processing FOIA requests were careless and haphazard at best. 
     The procedures followed by the GLR were vague and did not 
     require accountability for what documents were sent, or not 
     sent, to the requester. Because accountability records were 
     not maintained, the FAA was unable to provide an accurate 
     description of which documents had and had not been sent to 
     Maloney. The FAA GLR was unable to recreate the B&L FOIA file 
     as it existed at the time they responded to Maloney's 
     request. In addition, the FAA GLR did not follow proper 
     procedures by its failure to: (1) notify the requester in 
     writing that documents were withheld; (2) cite a FOIA 
     exemption which justifies the withholding of documents; and 
     (3) set forth the names and titles of each person responsible 
     for a denial of records.
       A comparison of the records obtained by the OIG from OPA 
     with the records obtained from Maloney disclosed the FAA GLR 
     improperly withheld 200 pages of documents from Maloney. The 
     FAA failed to notify Maloney that documents were withheld 
     and, therefore, did not afford Maloney the opportunity to 
     appeal the withholding. Of the 200 pages, 151 pages were 
     composed of the ``B&L Aviation Company Manual'' and 45 pages 
     were B&L's ``Repair Station File'', which consists of the 
     repair station manual and related certifications. The 
     remaining four 

[[Page S 14154]]
     pages were generated by the USFS and pertained to their inspections of 
     B&L. The company manuals may be protected under exemption 
     four of the FOIA, which protects ``trade secrets and 
     commercial or financial information obtained from a person 
     and privileged or confidential'' information.\8\ No 
     explanation can be given for the withholding of the remaining 
     four pages.
       Our inquiry disclosed that the cited deficiencies on the 
     part of the FAA GLR in processing FOIA requests reflect an 
     agency-wide lack of procedures in the FAA. Further evidence 
     of the agency's lack of procedural safeguards for the 
     processing of FOIA requests is included in a report, dated 
     July 28, 1994, prepared by the General Counsel of the 
     Department of Transportation and the FAA Deputy 
     Administrator, submitted to Secretary Federico Pena and 
     Administrator David Hinson, pertaining to the review of the 
     FAA's response to a FOIA request regarding the B757 wake 
     vortex. The report cited national problems including: a lack 
     of sufficient resources and attention on the FOIA function; 
     no restriction on who may be asked to process FOIA requests; 
     and, inadequate searches for documents. Due to the 
     inadequacies of the FAA in dealing with FOIA requests, the 
     report recommended the following: ``(1) The FAA Administrator 
     should give consideration to enhancing organizational 
     responsibility and accountability for FOIA responses. (2) The 
     Administrator should give serious consideration to 
     establishing an FOIA office within the FAA Office of Public 
     Affairs. (3) There appears to be a real need for FOIA 
     training that focuses on the procedural requirements of 
     the FOIA as well as the substantive exemptions.\9\''
       Our inquiry disclosed that the FOIA request regarding the 
     B757 wake vortex was received by the FAA on December 27, 
     1993, and responded to on February 10, 1994, approximately 
     three months before the MALONEY FOIA request was received by 
     the FAA GLR. Additionally, our inquiry disclosed by the time 
     the report regarding the FAA's response to the B757 wake 
     vortex FOIA was issued on July 26, 1994, the FAA GLR had 
     already submitted its first response to MALONEY on July 14, 
     1994. Therefore, the corrective action suggested in the 
     report submitted by the General Counsel of the Department of 
     Transportation and the FAA Deputy Administrator was not in 
     place at the time the FAA was responding to the MALONEY 
     request.
       On July 17, 1995, Administrator HINSON forwarded to the OIG 
     a summary of the FAA's ``FOIA Activities and Improvements,'' 
     for the period September 1994 through June 1995. 
     Administrator HINSON cited a number of agency-wide 
     improvements including: the establishment of a national FOIA 
     office in OPA; the development of a FOIA checklist; and the 
     installation of a new automated headquarters FOIA tracking 
     system.

         B. The recusal of Linda DASCHLE, Deputy Administrator

                              1. Synopsis

       We investigated a number of issues concerning Deputy 
     Administrator DASCHLE's recusal from participating in certain 
     matters before the Department. The primary issue concerned 
     her selection of an FAA Aviation Safety Inspector (ASI) from 
     Rapid City, South Dakota, to temporarily serve on her 
     immediate staff. The ASI was directly involved in the 
     consolidation of inspection issue during 1993 and 1994, 
     including direct contacts with Senate DASCHLE's staff. The 
     ASI also has supervisory duties pertaining to FAA inspections 
     of B&L, and had personally met Senator DASCHLE. Other issues 
     concerned reports that Deputy Administrator DASCHLE and her 
     staff had discussions and contacts concerning the issue of 
     consolidated inspections. We also examined the failure of 
     Deputy Administrator DASCHLE to document her recusal until a 
     year after her appointment.
       We concluded that Deputy Administrator DASCHLE did not 
     violate her recusal. We found that Deputy Administrator 
     DASCHLE refrained from discussing the consolidated inspection 
     issue or otherwise participating in the issue of consolidated 
     inspections. Deputy Administrator DASCHLE told the OIG that 
     she had been unaware of the ASI's involvement in the 
     consolidated inspection issue. She does not consider her 
     selection of the ASI to contradict her recusal but told the 
     OIG that had she known beforehand about the ASI's involvement 
     she would not have made the selection. We find her position 
     on this issue to be credible.
       We confirmed that Deputy Administrator DASCHLE did not 
     discuss the consolidated inspection issue with a USDA 
     official who contacted her. We reviewed the federal 
     regulations governing such matters. We also consulted with 
     DOT and FAA ethics officials. We concluded that no 
     requirement existed that Deputy Administrator DASCHLE file a 
     written disqualification (i.e., recusal).

                             2. Background

       As part of our inquiry, we examined the recusal of Linda 
     DASCHLE from all FAA matters involving her husband. We 
     examined this issue based on the self-disclosure made by 
     Deputy Administrator DASCHLE to Inspector General A. Mary 
     SCHIAVO and Deputy Inspector General Mario A. LAURO, Jr. on 
     February 6, 1995. During that meeting, Deputy Administrator 
     DASCHLE advised of her selection of Richard BOWN for a 
     temporary detail as her special assistant in the Summer 1994. 
     A controversy arose concerning BOWN's selection to work on 
     Deputy Administrator DASCHLE's immediate staff because of his 
     previous involvement with the USFA on the consolidated 
     inspection issue. Deputy Administrator DASCHLE advised 
     Inspector General SCHIAVO and Deputy Inspector General LAURO 
     that during his detail to her immediate staff, BOWN had 
     documents in his possession in FAA headquarters relating to 
     the duplicate inspection issue which he offered to show her. 
     She refused to review them and informed BOWN of her 
     recusal.\10\

      3. The selection of BOWN to the Deputy Administrator's staff

       Our inquiry disclosed Deputy Administrator DASCHLE 
     attempted to personally call BOWN to invite him to a 
     breakfast meeting she was hosting in Sioux Falls, South 
     Dakota, on June 25, 1994. Deputy Administrator DASCHLE was 
     unable to reach BOWN and made the invitation through BOWN's 
     supervisor, who also attended. The meeting consisted of FAA 
     management employees from South Dakota. During this meeting, 
     Deputy Administrator DASCHLE and BOWN met face to face for 
     the first time. At the conclusion of the meeting, Deputy 
     Administrator DASCHLE related to BOWN that she was interested 
     in detailing a pilot/safety inspector to Washington for a 
     temporary period in order to enhance her goal of bringing 
     field experience to her staff.
       Subsequent to this conversation, Deputy Administrator 
     DASCHLE and BOWN engaged in approximately one to two 
     telephone conversations during which she asked him to accept 
     a temporary detail as her special assistant, and defined to 
     BOWN what his responsibility would be. By August 1994, BOWN 
     had agreed to accept a 90 day detail to Washington D.C. BOWN, 
     a GS-14, was temporarily paid at the GS-15 level, which 
     according to Deputy Administrator DASCHLE is standard pay for 
     her special assistants.
       Our interview of Deputy Administrator DASCHLE disclosed 
     that she did not contact JONES, BOWN's supervisor, about his 
     qualifications nor did she examine BOWN's personnel file for 
     information about his employment history. Deputy 
     Administrator DASCHLE indicated she selected BOWN for the 
     following reasons: 1) she was impressed by BOWN because of 
     his participation during the June 25, 1994, breakfast 
     meeting; and, (2) her husband's statements to her regarding 
     his knowledge of BOWN.
       Deputy Administrator DASCHLE indicated BOWN was very vocal 
     during the breakfast meeting as he was very willing to speak 
     out candidly about his critical feelings involving FAA 
     leadership in headquarters. Regarding Senator DASCHLE's 
     comments about BOWN, Deputy Administrator DASCHLE stated her 
     husband related to her he knew BOWN through his (the 
     Senator's) involvement in the aviation community in South 
     Dakota.\11\ Deputy Administrator DASCHLE stated her husband 
     never specifically recommended or suggested she select BOWN 
     but only related he was impressed by BOWN and other employees 
     in the Rapid City FSDO. According to Deputy Administrator 
     DASCHLE, the Senator characterized the employees in that 
     office as ``good people.''
       During our interview of the Senator, he stated he advised 
     Deputy Administrator DASCHLE that he had heard of BOWN. He 
     disclosed to us he has met BOWN on three or four occasions, 
     the first time occurring several years ago. Their contact has 
     been very limited, and he does not believe he would recognize 
     BOWN if he saw him. The Senator stated he did not connect 
     BOWN with the consolidated inspection issue and was not sure 
     at what point he knew of BOWN's involvement in the issue. The 
     Senator was ``almost positive'' Deputy Administrator DASCHLE 
     had no knowledge of BOWN's involvement.
       [deleted] Assistant to Senator DASCHLE, told the OIG that 
     [deleted] never discussed BOWN'S involvement in the 
     consolidated inspection issue with Deputy Administrator 
     DASCHLE. [deleted] communicated with BOWN several times each 
     week while working on the issue, but [deleted] never 
     suggested to Senator DASCHLE that BOWN be rewarded for his 
     efforts. [deleted] did not know how BOWN was selected for the 
     temporary position with Deputy Administrator DASCHLE, and 
     [deleted] stated that [deleted] did not communicate with BOWN 
     on the consolidated inspection issue while BOWN was assigned 
     to Deputy Administrator DASCHLE's staff. [deleted] was aware 
     of Deputy Administrator DASCHLE's recusal policy.
       Deputy Administrator DASCHLE stated she did not become 
     aware of BOWN's involvement with her husband in the 
     consolidated inspection issue until September 1994, when BOWN 
     arrived in Washington. She and Senator DASCHLE each told the 
     OIG they never discussed BOWN's involvement in the 
     consolidated inspection issue. In fact, Deputy Administrator 
     DASCHLE stated she did not become aware of her husband's 
     involvement in the issue until the Spring 1994, when she 
     received a telephone call from James R. LYONS, Assistant 
     Secretary, Natural Resources and Environment, USDA, 
     soliciting her involvement in the consolidated inspection 
     matter. Deputy Administrator DASCHLE stated that when 
     informed during the telephone call of her husband's 
     interest in the issue, she immediately informed LYONS of 
     her recusal and terminated the conversation. We confirmed 
     this with LYONS.
       When BOWN began his detail in September of 1994, he advised 
     Deputy Administrator 

[[Page S 14155]]
     DASCHLE he had brought with him a package of USFS documents relating to 
     B&L.\12\ Many of these documents made reference to Senator 
     DASCHLE and his involvement in the duplicate inspection 
     issue. Deputy Administrator DASCHLE stated BOWN never showed 
     her the documents but just wanted her to be aware that he had 
     them. Due to the nature of the documents, Deputy 
     Administrator DASCHLE advised BOWN he should not have the 
     documents in the office due to her recusal from matters 
     involving her husband. The Senator stated Deputy 
     Administrator DASCHLE advised him of the incident involving 
     the documents.

               4. Deputy Administrator DASCHLE's recusal

       The applicable regulations governing recusals is found at 5 
     CFR Part 2635, Standards of Ethical Conduct for Employees of 
     the Executive Branch. Specifically, Subpart E, ``Impartiality 
     in Performing Official Duties,'' Section 2835.502 states, in 
     part: ``Where an employee knows that a particular matter 
     involving specific parties in likely to have a direct and 
     predictable effect on the financial interest of a member of 
     his household, or knows that a person with whom he has a 
     covered relationship is or represents a party to such matter, 
     and where the employee determines that the circumstances 
     would cause a reasonable person with knowledge of the 
     relevant facts to question his impartiality in the matter, 
     the employee should not participate in the matter. . .''
       In addition to the regulation, [deleted] General Law 
     Branch, FAA, advised the OIG that the FAA follows an 
     unwritten policy that an employee must recuse himself or 
     herself from all matters, not just financial matters, with 
     which he or she has a conflict of interest.
       Deputy Administrator DASCHLE stated that from the outset of 
     her appointment in November 1993, she recused herself from 
     all matters with which her husband has a specific interest. 
     Our inquiry disclosed Deputy Administrator DASCHLE did not 
     officially circulate anything in writing to her staff 
     regarding her recusal although she indicated she verbally 
     advised her staff of her recusal. Senator DASCHLE and Deputy 
     Administrator DASCHLE told the OIG that her recusal policy 
     does not prevent her from generally knowing about certain 
     issues such as the consolidated inspection matter, but from 
     acting on them. We confirmed this with the Department's 
     ethics attorney.
       In her first memorandum memorializing her recusal, dated 
     November 18, 1994, (one year after her appointment) Deputy 
     Administrator DASCHLE stated, in part, ``As you are aware, 
     upon assuming the position of Deputy Administrator, I recused 
     myself from participation in all DOT/FAA matters in which my 
     husband, Senator Thomas Daschle, has had a role.'' Then, on 
     advice of FAA Counsel, she revised her recusal due to the 
     election of her husband to Senate Minority Leader. Her 
     revised recusal, dated January 19, 1995, states, in part, 
     ``Because my husband represents the State of South Dakota in 
     the United States Senate, I have disqualified myself from 
     participating in any [emphasis added] particular matter that 
     would have a direct and predictable effect on that State. . 
     .''
       Deputy Administrator DASCHLE maintained she had no 
     conversations with her staff members regarding the 
     consolidated inspection issue nor did she discuss the issue 
     during the June 1994, breakfast meeting she attended in Sioux 
     Falls. However, during one interview of an FAA official, it 
     was alleged to the OIG that [deleted] FAA, had conversations 
     with Deputy Administrator DASCHLE about the consolidated 
     inspection issue. Allegedly, [deleted] received a directive 
     from Deputy Administrator DASCHLE to settle the USFS matter 
     and subsequently conveyed this to a senior staff member. In a 
     sworn statement, [deleted] indicated, ``. . . I have made 
     statements on DASCHLE wanting issues resolved. In such cases, 
     I was making reference to Senator Tom DASCHLE.''

                5. Deputy Administrator DASCHLE and B&L

       Deputy Administrator DASCHLE told the OIG she has taken 
     flights on B&L aircraft since her appointment as Deputy 
     Administrator. According to Deputy Administrator DASCHLE, 
     these flights were with her husband on his official business 
     and were either paid for out of personal funds or campaign 
     funds. Deputy Administrator DASCHLE has not utilized B&L 
     aircraft in her capacity as Deputy Administrator.
       Deputy Administrator DASCHLE and BELLEW have known each 
     other for approximately 14 years. She met BELLEW in 1981 
     while she was working for the Civil Aeronautics Board. Deputy 
     Administrator DASCHLE stated she has never intervened on 
     behalf of B&L in any FAA matter and, further, was never 
     approached by BELLEW in an attempt to solicit her 
     intervention. In addition, no documentation was discovered 
     which suggested that Deputy Administrator DASCHLE intervened 
     with respect to the consolidated inspection issue or with 
     regard to B&L.
       An additional allegation was raised during our inquiry that 
     Deputy Administrator DASCHLE dispatched an accident 
     investigation team from Washington D.C. to investigate the 
     crash of a B&L aircraft that occurred on February 24, 1994. 
     The dispatch of a headquarters team deviates from standard 
     practice of local investigative teams conducting crash 
     investigations in their immediate area. The allegation was 
     not substantiated. Deputy Administrator DASCHLE and Senator 
     DASCHLE both deny any involvement in sending an accident 
     investigation team from FAA headquarters. An interview of an 
     FAA official involved in the accident investigation disclosed 
     that certain characteristics of the flight, the operator, and 
     of those individuals killed in the crash prompted the FAA 
     headquarters Accident Investigation Division's involvement.


                          VI. Recommendations

       1. This investigation disclosed no evidence to substantiate 
     that documents were destroyed as alleged. Nor did this 
     investigation disclose evidence to substantiate that Deputy 
     Administrator DASCHLE violated her recusal. Accordingly, it 
     is recommended that this investigation be closed.
       2. This investigation disclosed that at the time of the 
     subject FOIA request, FAA lacked sufficient internal 
     procedures and safeguards concerning the processing of FOIA 
     requests. The investigation disclosed improvements have since 
     been made in response to recommendations from a previous 
     Departmental review. It is recommended that FAA Administrator 
     HINSON continue to monitor the FAA's FOIA activities and 
     improvements. In addition, the OIG will include in its FY 
     1997 annual planning, a Department-wide review of FOIA 
     procedures.


                               footnotes

     \1\ In April 1995, press reports indicated the USFS no longer 
     contracts with B&L. OIG confirmed with the USFS that all 
     approvals of B&L have expired and a decision was made not to 
     renew approvals at this time.
     \2\ The GLR received five FOIA requests pertaining to B&L.
     \3\ BAXTER informed JONES that the national database 
     information would be obtained from the FAA, Mike Monroney 
     Aeronautical Center in Oklahoma City, Oklahoma.
     \4\ On February 7, 1995, as a result of media interest in the 
     case, the OPA requested from GLR a copy of all documents sent 
     to MALONEY.
     \5\ The index, created months after the fact, is the only 
     record we found which itemizes, in any way, the FAA's 
     response to the MALONEY FOIA request.
     \6\ A review of the documents within each group disclosed 
     that each index category was labeled according to the top 
     document in that grouping and, according to [deleted] does 
     not mean that all documents in that group are appropriately 
     described. For example, Item 2 in ``Items sent to APA'' 
     reflects 89 pages of a letter from Senator DASCHLE. The 
     letter was actually one page. The other documents in this 
     group were unrelated to this letter.
     \7\ The FAA did not create a record or otherwise justify 
     withholding these documents or any other documents under a 
     FOIA exemption in reference to the MALONEY request. The FOIA 
     regulations require that the requester be notified of his 
     right ``to appeal to the head of the agency any adverse 
     determination.'' The regulations further state that ``any 
     notification of denial of any request for records . . . shall 
     set forth the names and titles or positions of each person 
     responsible for the denial of such request.''
     \8\ Reference The Freedom of Information Act, 5 U.S.C., 
     Section 552(b)(4).
     \9\ See ``Boeing 757 Wake Turbulence, A Review of the Actions 
     of the Federal Aviation Administration'' for more detailed 
     information. The report also suggested preparing a FOIA 
     Processing Checklist that could be attached to each FOIA 
     request. Our inquiry disclosed that this recommendation has 
     been implemented in the GLR.
     \10\ These documents are the same documents discussed in 
     Section V(A)(3)(b) of this report, ``Circumstances Which 
     Raised Suspicions about Documents.''
     \11\ Senator Tom DASCHLE is an FAA-certified pilot.
     \12\ During an interview of BOWN, he indicated he received 
     the package of documents from an inspector in the Rapid City 
     FSDO shortly after beginning his detail in Washington.
  Mr. FORD. Mr. President, I have a footnote to these remarks. I have 
known Tom and Linda Daschle for a good many years now. In the position 
that Senator Daschle is in as leader of the Democratic minority here in 
the Senate, one of the attributes that Senator Daschle has is that he 
is straightforward, that he is honest, and he is of great character.
  I have known his wife, Linda, now for a good many years, having dealt 
with her and the association she represented and now as Deputy Director 
of FAA. I do not think anyone that has known her would doubt her 
character. Being the daughter of a Baptist minister, the training that 
she received in her early years is still with her today.
  Those who know them well believe that the allegations were not true, 
and I think our belief in this couple was vindicated by the report from 
the Inspector General of the Department of Transportation.
  Mr. President, I felt it was incumbent upon me as a friend and as a 
part of this side of the aisle that these remarks be made for the 
record and the vindication of our good friends be noted in the Record.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CRAIG. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________