• Fight for access pits FBI, DOJ against federal watchdogs

    In August, 47 federal watchdogs signed a letter to Congress saying department and agency officials were blocking access to information they needed to do their jobs. It’s now almost a year later and not much has changed.

    The Peace Corps Inspector General still can’t access data on sexual assaults against Peace Corps members abroad, and officials at the Environmental Protection Agency are claiming attorney-client privilege to block the IG there from records.

    Drug Enforcement Administration officials are now cooperating with the Department of Justice Office of Inspector General, but FBI employees still say DOJ’s IG investigators have no legal right to certain records like electronic surveillance and wiretap material.

    Adding to the tension, the Department of Justice has asked the U.S. Attorney General’s Office of Legal Counsel whether the FBI or the DOJ IG is right, in a fight pitting FBI and DOJ officials as a whole against DOJ IG investigators.

    “This process ignores an unbroken history of more than 20 years of cooperation and compliance by the department and FBI with the records production requirements of the Inspector General Act,” DOJ Inspector Michael Horowitz said in a written update to Congress last month.

    “At no time before 2010 did the FBI, any department component, or department leadership raise any concerns over the legality of providing records to the OIG, including grand jury, wiretap, or FCRA material; prior to this time, the OIG routinely received such material from the department,” Horowitz added.

    In the last few years, Horowitz told Congress in May, his investigators have run into roadblocks accessing information related to the Boston Marathon Bombing, and Fast and Furious Operation, among other incidences.

    Last year, he and other IGs wrote Congress and held hearings. In the current calendar year alone since then, Horowitz has written Congress four times documenting different instances of FBI officials denying his office records — even though the DOJ’s most recent appropriations act specifies that “no funds” from the DOJ could go towards blocking the inspector general’s access.

    The 1978 Inspectors General Act already required departments and agencies to provide timely access to documents sought by IGs.

    But none of that has changed the FBI’s behavior, and leaders in the DOJ are trying to nix that budget protection for the DOJ IG in next year’s budget, Horowitz said in his report.

    But, it could get even easier for the FBI to deny the DOJ IG access.

    The DOJ has asked the U.S. Attorney General to have the final say on whether the FBI can deny records related to Section 215 of the Patriot Act, things like wiretapping and surveillance records.

    If that decision comes down in favor of the FBI over the DOJ IG, that would be a blow to the entire IG community.

    “Access to information is the lifeblood of what we do for effective oversight, and any impediment for getting information would be a serious impediment to effective oversight,” Department of Homeland Security Inspector General John Roth, one of the 47 to sign the letter, told the DCNF.

    “We survive, we live on information. We’re only as good as the information we get form the components we get oversight on,” he said.

    The three IGs mentioned in the letter as experiencing the most access issues — DOJ IG Michael Horowitz, EPA IG Arthur Elkins, and Peace Corps IG Kathy Buller — declined interviews for this story.

    Roth said he hasn’t experienced the same access issues as some of his fellow IGs, but the buck stops with the agency head.

    “We don’t have sort of the institutional access blocking that say Justice has or some of the other agencies have, and my sense of it is it really starts with the top,” Roth told the DCNF. “If an agency head decides that the IG has value, that independent oversight is actually a good thing and not a bad thing, then you get access. If the agency head doesn’t see that, then you don’t.”

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