This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.
Inspectors General (IGs) occupy unique and important roles in the world of government oversight and accountability. Their unique role under the Inspector General Act (the IG Act) and within the structure of government creates intra- and interbranch tensions. They are executive branch entities with a mandate to maintain professional distance to fulfill an audit function. A year ago, I reported on a letter to Congress complaining about access to executive agency materials signed by 47 IGs. A month ago, the Office of Legal Counsel (OLC) issued an opinion that has further raised the hackles in the IG community and on the Hill.
The OLC opinion answers the following question posed by the Deputy Attorney General: “whether the Department of Justice (the ‘Department’) may lawfully provide the Department’s Office of Inspector General (‘OIG’) with access to documents containing certain kinds of statutorily protected information” including information covered by the Federal Wiretap Act (Title III), the grand jury secrecy rules of the Federal Rules of Criminal Procedure (Rule 6(e)), and the Fair Credit Reporting Act (Section 626). Specifically, OLC opines that Section 6(a)(1) of the IG Act “does not supersede the limitations on disclosure contained in Title III, Rule 6(e), and section 626.” Section 6(a)(1) of the IG Act specifies that IGs are “authorized  to have access to all records, reports, audits, reviews, documents, papers, recommendations, or other material” available to the agency that are related to issues subject to IG review.
As a practical matter, the opinion means that senior Department leadership will continue to review material requested by the IG and withhold information they determine to be precluded from release under these statutory provisions.
Megan Graham wrote a helpful post in February detailing some of the Department IG’s complaints that led to this OLC opinion. Specifically, earlier this year, the Department IG objected to the FBI’s refusal to set a timeline for turning over documents related to an IG investigation of the Drug Enforcement Agency’s use of subpoenas to access certain bulk data collections. The FBI had resisted a firm production timeline because the Department was undertaking review for grand jury, wiretap, and credit information nondisclosure provisions. The IG had sent a letter to Congress complaining that Department management determinations as to IG access was contrary to the IG Act, appropriations provisions, and the principle of IG independence.
The OLC opinion prompted a letter to Congress from the Council of the Inspectors General on Integrity and Efficiency (CIGIE). Sixty-eight IGs signed the letter sent by CIGIE, which happens to be chaired, at present, by the Department of Justice IG, Michael Horowitz. CIGIE argues that that the OLC opinion “sharply curtails” IG authority and “represents a serious threat to the independent authority of not only the DOJ-IG but to all Inspectors General.” Interestingly, CIGIE calls on Congress to “immediately pass legislation affirming” IG authority to obtain these materials rather than directly confronting OLC’s legal reasoning. Congress has started to react. For example, Rep. Jason Chaffetz (R-Utah), Chair of the House Committee on Oversight and Government Reform, issued a statement in reaction to the OLC opinion. However, the legislative vehicle he references, H.R. 2395, does not address CIGIE’s requested changes in its present form.
Inspectors General should be able to obtain access to the information, held by their agency charges, necessary to do their jobs. However, lurking behind every intra-executive production of documents to an IG lurks the real possibility of an interbranch production of IG workpapers to Congress. While both congressional oversight and IG mandates often overlap, the intra- versus interbranch production transom could be constitutionally and functionally significant.
Congressional oversight interests often overlap with IG work product and Congress regularly highlight IG findings. In other instances, Congress has applied serious political, oversight, and budgetary pressure to IGs it deems too cozy with executive branch leadership. As I wrote last year: “Inspectors General are unique entities within the separation-of-powers structure. IG semi-independence within the executive branch, as well as closer allegiance to Congress, complicate an IG’s intrabranch relations with its charge when there is an interbranch information access dispute ongoing about the subject matter of the IG’s study.” A legislative fix for the IGs would be a good thing, but it ought to preserve executive branch institutional interests. It also ought to protect the privacy and reputational interests of the intended beneficiaries of laws designed to safeguard grand jury, wiretap, and credit information.