The government's watchdogs aren't getting the access they need. Congress must fix this.

I shared a link yesterday about the latest round in an ongoing battle between the Department of Justice and its Inspector General regarding the IG's access to certain documents.  According to the article, the Department of Justice cited various legal theories that it claimed gave it a right to block access. The IG appropriately let Congress know that the Department's approach was hindering his ability to conduct the types of audits and investigations that he must do in order to fulfill his mandate, and after Congress threatened to cut off funding, the Department found a work around so that, for now, the IG can do his job. 

This is not enough.   At best, it is only a temporary fix that will likely expire with the end of the fiscal year.  Moreover, the problem goes well beyond DOJ. There is nothing new about executive departments using trumped up legal claims to block IG access, particularly when it comes to matters that are politically sensitive.  When I was the Special Inspector General for the Troubled Asset Relief Program, it felt like almost every day either the Treasury Department or some other agency we were auditing would trot out some spurious legal theory as to why, although they really really wanted to cooperate, they just couldn't.* We became very good at knocking down these claims, usually with a mix of legal arguments (which was not difficult given that the act that created Inspectors General promises access to "all records") and not-too-subtle threats to go to Congress.

It worked for us because we were a high profile agency that had the attention of both Congress and the press.  When we eventually did have to go to Congress -- after the Treasury Department initially refused to give us access to information regarding its approval of spending more than $100 million in taxpayer money on bonus payments to a TARP recipient's executives** -- the reaction was loud, strong and effective.  But for the overwhelming majority of IGs, there is neither the Congressional will nor the press attention to make that type of splash. Indeed, the calculation that administration officials often appear to make when deciding to deny an IG access to sensitive materials is balancing the risk of a nuclear reaction from Congress or the press versus the benefit of being able to keep some pretty embarrassing information hidden. 

That is why Congress has to act.  It needs to enact legislation that makes clear that IGs should have the same access to material as anyone within that agency or department, and give them the necessary tools (such as subpoena authority) to achieve that access.  If Congress does not act,  the past will repeat itself over and over again, with transparency and good government unnecessarily suffering.

*One argument that is made is that certain information is privileged or too sensitive to be made public.  This is nonsense.  IGs are under the same confidentiality restrictions as anyone else, and carefully avoid disclosing such information in their public reports.  

**If interested, I wrote about this incident in detail in my book Bailout.

This post reflects only my views, and not necessarily those of my firm.