Government watchdog groups worry a recent Justice Department opinion will discourage whistleblowers and inhibit inspectors general overseeing federal agencies.
The opinion, issued July 20 by the Justice Department's Office of Legal Council, says that certain protected information, such as that stemming from a wiretap or grand jury proceeding, can be withheld from agency's inspector general.
That denies inspectors general "independent access to all records in the DOJ's possession despite the [1978 Inspector General Act's] express authorization that an inspector general have access to 'all records' within its agency's possession [and] represents a serious threat to the independence of not only the" Justice Department's inspector general "but to all inspectors general," the department's inspector general, Michael Horowitz, told the Senate Judiciary Committee on Wednesday.
The 72-member Council of Inspectors General, who wrote the congressional oversight panels on Monday that the Justice Department opinion might lead other agencies to withhold information, backed him up.
It "represents a potentially serious challenge to the authority of every inspector general and our collective ability to conduct our work thoroughly, independently, and in a timely manner," the council wrote.
Horowitz said that some of his colleagues, such as those overseeing the Commerce Department, Environmental Protection Agency, Peace Corps and Chemical Safety and Hazard Investigation Board, already have trouble getting some records and in some cases been unable to do their work, and that the opinion will deepen the problem.
The Justice Department opinion "makes a mockery of the entire IG system: these offices cannot possibly be effective watchdogs on behalf of Congress and the American public if agencies restrict IG access to records, forcing them to negotiate with agency leaders for access on a case-by-case basis," Danielle Brian, executive director of the watchdog group the Project on Government Oversight, told the Senate panel.
"How in the world somebody renders a legal opinion" preempting a decades-old law such as the Inspector General Act, and concludes that "all does not mean all, just defies common sense," Senate Majority Whip John Cornyn, R-Texas, said. "I don't know why we should have to pass another law saying 'we really meant it' in 1978 and now we 'really, really mean it — that's ridiculous," Cornyn said about the IGs' recommendation to remedy the situation legislatively.
Michael Smallberg, an investigator with the Project on Government Oversight, said the legal opinion is another example of the Obama administration not taking watchdog responsibilities seriously enough.
Already the administration "has dragged its feet" in nominating permanent inspectors general and relies too heavily on temporary watchdogs, he said. On average, it is taking the White House 613 days to nominate permanent inspectors general, POGO found. That "appears" to be the worse track record in recent memory, Smallberg said, adding that the POGO study couldn't definitively say the Obama administration is the slowest on that score.
Temporary inspectors general are "auditioning for the job" and more likely to cover up agency wrongdoing to ingratiate themselves with leaders who may have a say in whether they get the nod to keep the position, Smallberg said.
"They're pulling their punches," he said, adding that the scandal-ridden Veterans Affairs Department, which hasn't had a permanent IG for 582 days, might not have had so many scandals if it a watchdog in place.
There are eight inspectors general vacancies across the government.
POGO and other groups have also raised concerns about retaliation against whistleblowers in some agencies and by some inspectors' general offices, most notably the VA and Commerce Department, Smallberg said.
Former Commerce Department Inspector General Todd Zinser stepped down in June after a House committee found that he was retaliating against whistleblowers — a problem the Council of Inspectors General fears could worsen in departments across the government if the Justice Department opinion on the exemptions to information-sharing with IGs stands.
"We are concerned that witnesses and other agency personnel, faced with uncertainty regarding the applicability of the OLC opinion to other records and situations, may now be less forthcoming and fearful of being accused of improperly divulging information," they wrote. "Such a shift in mindset also could deter whistleblowers from directly providing information about waste, fraud, abuse, or mismanagement 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."
Cornyn called on Attorney General Loretta Lynch to withdraw the opinion.
The Justice Department maintains that the opinion merely points out possible conflicts between the IG law and others, such as the Fair Credit Reporting Act. And that it does not require the Justice Department, or any other agency, to withhold information from inspectors general.
The Justice Department issued a memo July 27 clarifying how the department should handle requests from Horowitz's office in light of the Legal Council Office's opinion. It gives employees permission to disclose the sensitive information discussed in the memo with the inspector general's office without approval or review.
"It is important that all department components and agencies promptly provide information to" Horowitz, the memo reads. The memo strives to "ensure that the inspector general receives the documents he needs to complete his reviews in a timely manner, consistent with the law."
For his part, Horowitz testified that he has never been denied access to documents or information he has sought as part of investigations or audits.
Associate Deputy Attorney General Carlos Uriarte told the panel that the department is working with Horowitz to propose a legislative fix.
"We remain committed to continuing to work with Congress and the OIG to ensure that the OIG has access to all of the information it requires to fulfill its essential oversight functions of the Department," he told senators. "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 OIG with the documents it needs as quickly as possible."
Horowitz said he hoped to have the proposal waiting for lawmakers when they return from the August recess.