Letter to Karl R. Thompson, Acting Assistant Attorney of the General Office of Legal Counsel - Grassley, Conyers Question New Practice Denying Records to DoJ Inspector General

Letter

Dear Acting Assistant Attorney General Thompson:

Thirty-six years ago, as members of the United States House of Representatives, the two of us voted for a bill that became the Inspector General Act of 1978.1 We write to you today as the respective Ranking Members of the Senate and House Judiciary Committees to remind you of the purpose of this Act. The Inspector General Act established Offices of the Inspector General as:

independent and objective units -- (1) to conduct and supervise audits and investigations relating to the programs and operations of [government] establishments . . . (2) to provide leadership and coordination and recommend policies for activities designed (A) to promote economy, efficiency, and effectiveness in the administration of, and (B) to prevent and detect fraud and abuse in, such programs and operations; and (3) to provide a means for keeping the head of the establishment and the Congress fully and currently informed about problems and deficiencies relating to the administration of such programs and operations and the necessity for and progress of corrective action . . . . 2

In order to carry out audits and investigations with the independence mandated by the Act, Inspectors General must have unfettered access to records of the Departments they oversee. Accordingly, Section 6(a)(1) of the Act authorizes Inspectors General to access:

all records, reports, audits, reviews, documents, papers, recommendations or other material available to the applicable establishment which relates to programs and operations with respect to which that Inspector General has responsibilities under this Act. 3

Section 6(a)(1) recognizes that Inspectors General simply cannot fulfill their statutorily-mandated duty to conduct oversight without such access.

In certain limited circumstances, the law does allow the Attorney General to "prohibit the Inspector General from carrying out or completing any audit or investigation, or from issuing any subpoena."4 However, the Attorney General is required to provide written notice to the Inspector General of the reasons for doing so and to forward a copy of that written notice to Congress.5

On November 19, 2013, and again on September 9, 2014, Inspector General Michael Horowitz testified that the Department is improperly impeding his access to records to which he is entitled under the Inspector General Act.6 For example, in August 2010, when the Inspector General requested from the FBI files relating to grand jury records and material witness warrants, the FBI apparently denied the request on grounds that the grand jury secrecy rules override the Inspector General Act--contrary to the longstanding practice of the FBI and the contemporaneous practice of all other Department components to which this request had been made.7 Similarly, the FBI reportedly denied the Inspector General's request for Title III wiretap information and for consumer credit information.8 These records were withheld, yet the statutory procedure for written notice by the Attorney General and a report to Congress were not followed.9 Eventually, the Inspector General obtained these records after the Attorney General and the Deputy Attorney General granted written permission.10

Under the Act, however, the Attorney General is required to write to the Inspector General not when permitting access to records, but--precisely the opposite--when preventing an OIG review.11 In other words, the burden is placed on the Attorney General to explain in writing why the Inspector General's work should be impeded, not vice versa. Under the statute, the Attorney General's blessing on the IG's work is not required. That is the essence of independence.

The current practice is the opposite of the procedure dictated by the statute and unnecessarily delays the work of the Inspector General.12 More importantly, it circumvents the oversight authority with regard to such disputes, which Congress explicitly reserved for itself through the reporting requirement.13 This is because inaction in response to a document request allows the Department's leadership to indefinitely deny or delay a review sought by the Inspector General under his statutory right of access without having to report to Congress.

To clarify the Department's position on this issue, we understand that the Inspector General has requested that the Office of Legal Counsel issue an opinion on this matter. Accordingly, please issue this opinion promptly and provide a copy to both Judiciary Committees. Whatever opinion is issued, it should explain the following issues:

1. How is the Department's current practice of withholding records from the Inspector General without reporting that fact to Congress as required by Section 8E(a)(3) of the Inspector General Act justified?

2. If grand jury secrecy rules prohibit the disclosure of grand jury and material witness warrant information to the Inspector General, as the FBI's post-2010 interpretation asserts, then how can the Department reconcile that position with:

a. The legality of the FBI's pre-2010 practice of routinely providing that information to the Inspector General; and

b. The legality of providing those records to the Inspector General by the Justice Department's National Security Division, the U.S. Marshals Service, the Federal Bureau of Prisons, and the U.S. Attorney's Offices for the Southern District of New York, the Northern District of Illinois, and the Eastern District of Virginia.

3. If those previous instances of providing such material to the Inspector General were allegedly inappropriate, then how will the Department hold those responsible for the disclosures to the IG accountable? How could anyone be held accountable given that the IG Act explicitly authorizes the IG to access all records of the Department?

If you have any questions, please contact Jay Lim of Ranking Member Grassley's staff at (202) 224-5225 or Aaron Hiller of Ranking Member Conyers' staff at (202) 225-6906. Thank you.
Sincerely,

Source