Justice Department Opinion Denying Records to its Inspector General Raises Red Flags

    Aug 11, 2015

    The U.S. Department of Justice overstepped its authority when its Office of Legal Counsel issued a memorandum on July 20 that allows the Department to deny access to records sought by its inspector general (IG), Congressional critics charged.

    The memorandum provides a legal opinion as to whether the Justice Department is required to provide its Office of Inspector General (OIG) with access to restricted information regarding the contents of intercepted communications under the Federal Wiretap Act, materials contained in grand jury investigations, and the disclosure of consumer information obtained by the Federal Bureau of Investigation pursuant to National Security Letters.

    The Inspector General Act of 1978, and amendments adopted in 1988, established federal IGs as permanent, nonpartisan, and independent offices in more than 70 federal agencies, and authorized them to combat waste, fraud, and abuse within their affiliated federal entities.  At issue is statutory language granting IG’s with broad authority to conduct audits and investigations, and the ability to access directly the records and information related to the affiliated agency’s programs and operations.

    “This opinion is a departure from the plain text of the statute and the intent of Congress when we drafted it,” said Rep. John Conyers (D-MI), the senior Democrat on the House Judiciary Committee, in a statement.  “The Inspector General must have complete and direct access to the information that his office deems necessary to conduct complete and impartial investigations.  He should not have to ask permission from the very agency he oversees.”

    According to the memorandum, certain statutes restrict the disclosure of particular categories of information which supersede provisions of the Inspector General Act that grant the Justice Department’s OIG with the right of access to Department records relevant to its audits, investigations, and reviews. 

    A joint statement issued by House and Senate committee leaders accuses the Justice Department of issuing the legal opinion to justify the unnecessary withholding of information related to OIG investigations.  Those investigations involve: “(1) whether the Department had violated the civil liberties and civil rights of individuals detained in national security investigations following September 11, (2) the review of Operation Fast and Furious, (3) the review of the FBI’s use of National Security and Exigent letters, (4) the Drug Enforcement Administration (DEA) sex parties scandal, (5) the DEA’s use of confidential sources, and (6) the DEA’s use of administrative subpoenas to obtain bulk data collections.”

    On August 5, the Senate Judiciary Committee held a hearing to examine how the opinion is hindering the work of the Justice Department’s IG and how it might impact the work of all IGs. 

    “For the first time since the IG Act was passed in 1978, the lawyers for the Executive Branch have concluded that ‘all’ in Section 6(a) of the IG Act does not mean ‘all’,” stated Michael Horowitz, the Justice Department’s Inspector General, in testimony before the committee.  “As a result, the Inspector General community is concerned that the OLC opinion could lead to agencies objecting to the production to Inspectors General of other categories of records that are subject to non-disclosure provisions.”

    According to testimony provided by Danielle Brian, executive director of the Project on Government Oversight, an independent watchdog group, the effects of the opinion are already being felt within the IG community.

    “The Commissioner of the Internal Revenue Service (IRS) has cited the opinion to justify denying a request from the Treasury Inspector General for Tax Administration related to the IRS’s processing of search and seizure warrants,” said stated.  “And the Commerce Department apparently deferred to the OLC in denying a request from the Commerce IG’s office related to trade remedy determinations.  These cases demonstrate that the OLC’s opinion has had immediate and dangerous consequences for the independence of IG offices throughout the federal government.”

    The chairmen and ranking members of the House and Senate Judiciary Committees indicated that they plan to pursue a legislative fix that reaffirms the intent of the Inspector General Act that the OIG’s of all federal agencies are entitled to access all documents and records within their organizations. 

    The Washington Policy Brief is an online advisory that contains brief summaries of recent legislative and regulatory issues that may affect the records and information management profession. Further information about the issue is accessed by clicking on the link provided at the end of each summary.


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