Michael E. Horowitz is inspector general of the Justice Department and chair of the Council of the Inspectors General on Integrity and Efficiency.
One of the most significant post-Watergate reforms was the passage in 1978 of the Inspector General Act (IG Act), which has put in place 72 federal inspectors general to serve as agency watchdogs responsible for ensuring the integrity and efficiency of our government’s operations.
An inspector general’s ability to accomplish that ever-challenging mission depends on the bedrock principles enshrined in the IG Act: independence and access to all an agency’s records without interference. I emphasize “all” because unrestricted access to agency records ensures that our essential functions cannot be thwarted. Over the past 35 years, that access has empowered IGs to root out government corruption and save U.S. taxpayers billions of dollars.
For decades, there was no controversy over what the words “all records” meant. But that changed in 2010 when FBI attorneys suggested, soon after several critical reports by my office as inspector general at the Justice Department, that “all records” might not include some records the FBI was seeking to withhold. This was the first time anyone in the department had asserted that the broad powers of the IG Act did not apply fully to our oversight.
Not surprisingly, once the FBI started raising legal challenges, several other federal agencies challenged their IGs’ independent oversight authority. For example, when the Peace Corps inspector general sought to review the agency’s response to sexual assaults against corps volunteers — oversight that was mandated by Congress — the agency put in place policies that prevented IG access to key records.
Making matters worse, recently an arm of the Justice Department issued a 68-page opinion that supported the FBI’s position and concluded that IGs do not have the right to independently access certain records involving grand jury testimony, wiretap information and some credit reports, no matter how critical they might be to our oversight. Indeed, these kinds of records have been central to some of our most significant reviews of FBI and Justice Department programs, and for more than 21 years the department had provided them to us without once accusing us of not properly safeguarding them. As a result of this decision, it is now up to agency officials to decide whether to grant, or refuse, an IG permission to review these types of records. This leads to the absurd situation where the words “all records” in the IG Act no longer mean “all records.”
Without independent access to agency records, our ability as IGs to conduct the kind of sensitive reviews that have resulted in widespread improvements in the effectiveness of government programs will be significantly compromised. For example, since 2010, many of my office’s most important reviews, including those affecting public safety, national security, civil liberties and even whistleblower retaliation, have been impeded or delayed.
Allowing officials whose agencies are under review to decide what documents an inspector general can have turns the IG Act on its head and is fundamentally inconsistent with the independence that is necessary for effective and credible oversight.
This safeguard was vital when Congress passed the IG Act in 1978, and it remains vital today. Actions that limit or delay an inspector general’s access can have profoundly negative consequences for our work: They make us less effective, encourage other agencies to raise similar objections and erode the morale of our dedicated professionals. As chair of the Council of Inspectors General, I know that inspectors general everywhere are deeply concerned about this attack on our independence.
Thankfully, a substantial bipartisan group in Congress shares our view that the IG Act must not be interpreted in a way that would render it toothless. Pending legislation in the Senate, S. 579, and the House, H.R. 2395, would restore IG independence and empower IGs to conduct the kind of rigorous, independent and thorough oversight that taxpayers expect. I urge Congress to pass legislation quickly that clarifies that “all records” means “all records” and reject any interpretation that would allow government agencies to shield their misdeeds from inspector general oversight and, more importantly, from the American people.