Department of Homeland Security
Observations on GAO Access to Information on Programs and Activities Gao ID: GAO-07-700T April 25, 2007In testimony before this committee and the House Committee on Appropriations, Subcommittee on Homeland Security in February 2007, GAO stated that the Department of Homeland Security (DHS) has not made its management or operational decisions transparent enough to allow Congress to be sure that the Department is effectively, efficiently, and economically using its billions of dollars of annual funding. GAO also noted that its work for Congress to assess DHS's operations has, at times, been significantly hampered by long delays in obtaining access to program documents. Following the aforementioned testimonies, GAO was asked to testify about its access issues. This testimony provides information on (1) the scope of GAO's work, (2) GAO protocols for accessing agency information, (3) DHS processes for working with GAO, (4) access issues GAO has encountered, and (5) steps GAO has taken to address these issues.
To carry out its audit and evaluation authorities, GAO has a broad statutory right of access to agency records. Auditing standards require that analysts and financial auditors promptly obtain sufficient, competent, and relevant evidence to provide a reasonable basis for any related findings and conclusions. Therefore, prompt access to all records and other information associated with these activities is needed for the effective and efficient performance of GAO's work. This is also necessary in order for the Congress to be able to conduct its constitutional responsibilities in a timely and effective manner. Since DHS began operations in 2003, GAO has provided major analyses of the department's plans and programs for transportation security, immigration, Coast Guard, and emergency management. GAO has also reported on DHS's management functions such as human capital, financial management, and information technology. GAO has processes it applies in working with departmental agencies across the federal government that work well. DHS's adopted processes have frequently impeded GAO's efforts to carry out its mission by delaying access to documents required to assess the department's operations. This process involves multiple layers of review by department- and component-level liaisons and attorneys and results in frequent and sometimes lengthy delays in obtaining information. GAO recognizes that the department has legitimate interests in protecting certain types of sensitive information from public disclosure. GAO shares that interest as well and follows strict security guidelines in handling such information. GAO similarly recognizes that agency officials will need to make judgments with respect to the manner and the processes they use in response to GAO's information requests. However, to date, because of the processes adopted to make these judgments, GAO has often not been able to do its work in a timely manner. GAO has been able to eventually obtain information and answer audit questions, but the delays experienced at DHS impede GAO's ability to conduct audit work efficiently and to provide timely information to congressional clients.
GAO-07-700T, Department of Homeland Security: Observations on GAO Access to Information on Programs and Activities
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Testimony before the Subcommittee on Management, Investigations and
Oversight, Committee on Homeland Security, House of Representatives:
United States Government Accountability Office:
GAO:
For Release on Delivery Expected at 10:00 a.m. EDT:
Wednesday, April 25, 2007:
Department Of Homeland Security:
Observations on GAO Access to Information on Programs and Activities:
Statement of Norman Rabkin, Managing Director:
Homeland Security and Justice Issues:
GAO--07-700T:
GAO Highlights:
Highlights of GAO-07-700T, a testimony before the Subcommittee on
Management, Investigations and Oversight, Committee on Homeland
Security, House of Representatives
Why GAO Did This Study:
In testimony before this committee and the House Committee on
Appropriations, Subcommittee on Homeland Security in February 2007, GAO
stated that the Department of Homeland Security (DHS) has not made its
management or operational decisions transparent enough to allow
Congress to be sure that the Department is effectively, efficiently,
and economically using its billions of dollars of annual funding. GAO
also noted that its work for Congress to assess DHS‘s operations has,
at times, been significantly hampered by long delays in obtaining
access to program documents. Following the aforementioned testimonies,
GAO was asked to testify about its access issues.
This testimony provides information on (1) the scope of GAO‘s work, (2)
GAO protocols for accessing agency information, (3) DHS processes for
working with GAO, (4) access issues GAO has encountered, and (5) steps
GAO has taken to address these issues.
This testimony identifies issues that Congress and DHS may wish to give
attention so that DHS may provided GAO timely access to information
needed to carry out its statutory responsibilities.
What GAO Found:
To carry out its audit and evaluation authorities, GAO has a broad
statutory right of access to agency records. Auditing standards require
that analysts and financial auditors promptly obtain sufficient,
competent, and relevant evidence to provide a reasonable basis for any
related findings and conclusions. Therefore, prompt access to all
records and other information associated with these activities is
needed for the effective and efficient performance of GAO‘s work. This
is also necessary in order for the Congress to be able to conduct its
constitutional responsibilities in a timely and effective manner.
Since DHS began operations in 2003, GAO has provided major analyses of
the department‘s plans and programs for transportation security,
immigration, Coast Guard, and emergency management. GAO has also
reported on DHS‘s management functions such as human capital, financial
management, and information technology.
GAO has processes it applies in working with departmental agencies
across the federal government that work well. DHS‘s adopted processes
have frequently impeded GAO‘s efforts to carry out its mission by
delaying access to documents required to assess the department‘s
operations. This process involves multiple layers of review by
department- and component-level liaisons and attorneys and results in
frequent and sometimes lengthy delays in obtaining information.
GAO recognizes that the department has legitimate interests in
protecting certain types of sensitive information from public
disclosure. GAO shares that interest as well and follows strict
security guidelines in handling such information. GAO similarly
recognizes that agency officials will need to make judgments with
respect to the manner and the processes they use in response to GAO‘s
information requests. However, to date, because of the processes
adopted to make these judgments, GAO has often not been able to do its
work in a timely manner. GAO has been able to eventually obtain
information and answer audit questions, but the delays experienced at
DHS impede GAO‘s ability to conduct audit work efficiently and to
provide timely information to congressional clients.
Figure: DHS process for working with GAO:
[See PDF for Image]
Source: GAO analysis of DHS Directive #820.
[End of figure]
[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-07-700T].
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Norman J. Rabkin, at
(202) 512-8777 or rabkinn@gao.gov.
[End of section]
Mr. Chairman and Members of the Subcommittee:
I am pleased to be here to discuss the subject of access by the
Government Accountability Office to information at the Department of
Homeland Security (DHS). My statement will provide information on the
scope of our work, our protocols regarding how we normally get access
to agency information, DHS processes for responding to our requests,
access issues we have encountered at DHS, and, finally, steps we have
taken to address these issues.
Summary:
GAO's mission is to support Congress in meeting its constitutional
responsibilities and to help improve the performance and ensure the
accountability of the federal government for the benefit of the
American people. Since DHS began operations in 2003, we have provided
major analyses of the department's plans and programs for
transportation security, immigration, Coast Guard, and emergency
management. We have also reported on DHS's management functions such as
human capital, financial management, and information technology.
We have processes for obtaining information from departments and
agencies across the federal government that work well. DHS's adopted
processes do not work as smoothly. DHS's processes have impeded our
efforts to carry out our mission by delaying access to documents that
we require to assess the department's operations. This process involves
multiple layers of review by department-and component-level liaisons
and attorneys regarding whether to provide us the requested
information.
We have occasionally worked with DHS management to establish a
cooperative process--for example, reviewing sensitive documents at a
particular agency location. We have agreed to these types of
accommodations for accessing information under certain circumstances
because we believe that doing so allows us not only to maintain a
productive working relationship with the department but also to meet
the needs of our congressional requesters in a timely manner. Further,
such a relationship enables us to present the progress and challenges
of the department in a clear and impartial manner, so that we can meet
our shared objectives of improving our nation's security preparedness.
We recognize that the department has legitimate interests in protecting
certain types of sensitive information from public disclosure. We share
that interest as well and follow strict security guidelines in handling
such information. We similarly recognize that agency officials will
need to make judgments with respect to the manner and the processes
they use in response to our information requests. However, to date,
because of the processes adopted to make these judgments, GAO has often
not been able to do its work in a timely manner. We have been able to
eventually obtain information and to answer audit questions, but the
delays we have experienced at DHS have impeded our ability to conduct
audit work efficiently and to provide timely information to
congressional clients.
GAO Performs a Broad Range of Work for Congress:
GAO has broad statutory authority under title 31 of the United States
Code to audit and evaluate agency financial transactions, programs, and
activities.[Footnote 1] To carry out these audit and evaluation
authorities, GAO has a broad statutory right of access to agency
records. Using the authority granted under title 31, we perform a range
of work to support Congress that, among other things, includes the
following:
* Evaluations of federal programs, policies, operations, and
performance:
- For example, evaluations of transportation security programs related
to passenger-screening operations at airports, our work to assess
enforcement of immigration laws, and our work on the U.S. Coast Guard's
Deepwater acquisition to replace its aging fleet.
* Management and financial audits to determine whether public funds are
being spent efficiently, effectively, and in accordance with applicable
laws:
- For example, DHS's appropriations acts for fiscal years 2002 through
2006 have mandated that we review expenditure plans for the U.S.
Visitor and Immigrant Status Indicator Technology (U.S.VISIT) program.
* Investigations to assess whether illegal or improper activities may
have occurred:
- For example, we investigated the Federal Emergency Management
Agency's (FEMA) Individuals and Households Program to determine the
vulnerability of the program to fraud and abuse in the wake of
Hurricanes Katrina and Rita.
* Constructive engagements in which we work proactively with agencies,
when appropriate, to help guide their efforts toward transformation and
achieving positive results:
- For example, we have worked to establish such an arrangement with the
Transportation Security Administration (TSA) on its design and
implementation of the Secure Flight Program for passenger pre-screening
for domestic flights whereby we could review documents on system
development as they were being formulated and provide TSA with our
preliminary observations for its consideration. Congress mandated TSA
certify that the design and implementation of the program would meet 10
specific criteria. Congress also mandated that we review and comment on
TSA's certification. TSA's certification has not yet occurred.
Auditing Standards and Our Protocols Address Accessing Information:
We carry out most of our work in accordance with generally accepted
government auditing standards.[Footnote 2] Our analysts and financial
auditors are responsible for planning, conducting, and reporting their
work in a timely manner without internal or external impairments. These
standards require that analysts and financial auditors promptly obtain
sufficient, competent, and relevant evidence to provide a reasonable
basis for any related findings and conclusions. Therefore, prompt
access to all records and other information associated with these
activities is needed for the effective and efficient performance of our
work.
Our work involves different collection approaches to meet the evidence
requirements of generally accepted government auditing standards. Such
evidence falls into four categories:
* physical (the results of direct inspection or observation);
* documentary (information created by and for an agency, such as
letters, memorandums, contracts, management and accounting records, and
other documents in various formats, including electronic databases);
* testimonial (the results of face-to-face, telephone, or written
inquiries, interviews, and questionnaires); and:
* analytical (developed by or for GAO through computations, data
comparisons, and other analyses).
We have promulgated protocols describing how we will interact with the
agencies we audit.[Footnote 3] We expect that agencies will promptly
comply with our requests for all categories of needed information. We
also expect that we will receive full and timely access to agency
officials who have stewardship over the requested records; to agency
employees responsible for the programs, issues, events, operations, and
other factors covered by such records; and to contractor personnel
supporting such programs, issues, events, and operations. In addition,
we expect that we will have timely access to an agency's facilities and
other relevant locations while trying to minimize interruptions to an
agency's operations when conducting work related to requests for
information.
We provide an appropriate level of security to information obtained
during the course of our work. We are statutorily required to maintain
the same level of confidentiality of information as is required of the
agency from which it is received, and we take very seriously our
obligation to safeguard the wide range of sensitive information we
routinely receive. For example, we ensure that GAO employees have
appropriate security clearances to access information. We also have
well-established security policies and procedures.
Timely access to information, facilities, and other relevant locations
is in the best interests of both GAO and the agencies. We need to
efficiently use the time available to complete our work to minimize the
impact on the agency being reviewed and to meet the time frames of our
congressional clients. Therefore, we expect that an agency's leadership
and internal procedures will recognize the importance of and support
prompt responses to our requests for information. When we believe that
delays in obtaining requested access significantly impede our work, we
contact the agency's leadership for resolution and notify our
congressional clients, as appropriate.
DHS Has Implemented Burdensome Processes for Working with GAO:
Unlike those of many other executive agencies, DHS's processes for
working with us includes extensive coordination among program
officials, liaisons, and attorneys at the departmental and component
levels and centralized control for all incoming GAO requests for
information and outgoing documents. In an April 2004 directive on GAO
relations, DHS established a department liaison to manage its
relationship with us. In addition, DHS has a GAO coordinator within all
of its components and, within the DHS General Counsel Office, an
Assistant General Counsel for General Law who provides advice on GAO
relations. According to the directive, the department liaison (1)
receives and coordinates all GAO notifications of new work, (2)
participates in all entrance conferences, and (3) notifies the
Assistant General Counsel of new work to obtain participation of
counsel. The directive requires the Assistant General Counsel to
participate in all entrance meetings to ensure that the scope of any
request is clear and finite, and that mutual obligations between DHS
and GAO are met. The component coordinator handles all matters
involving GAO for the component, generally participates in GAO entrance
meetings, and seeks advice of component's counsel, as appropriate.
The following figure illustrates the coordination of information among
DHS officials described above when we make a request for information.
Typically when we begin an engagement, we send a letter to the
department liaison to notify DHS that we are starting a new engagement
and we request an entrance meeting to discuss the work. During the
course of our review, we provide written requests for meetings and
documents to component coordinators using a DHS-prescribed form. The
component coordinators then forward our requests to program officials
and consult with component counsel, who may consult with the Assistant
General Counsel.
Figure 1. DHS Process for Working with GAO.
[See PDF for image]
Source: GAO analysis of DHS Directive #820.
[End of figure]
In a memo that transmitted the above directive to senior managers in
DHS components, the then-Under Secretary for Management emphasized the
importance of a positive working relationship between the two agencies.
The memo stated that failure to meet or brief GAO staffs in a timely
manner, as well as being viewed as nonresponsive to GAO document
requests, could result in tense and acrimonious interactions. The Under
Secretary also reminded senior officials that prompt and professional
discharge of their responsibilities to GAO requests could affect both
DHS's funding and restrictions attached to that funding.
GAO Has Experienced Difficulties Accessing DHS Information:
In testimony before this committee and the House Committee on
Appropriations, Subcommittee on Homeland Security in February 2007, we
stated that DHS has not made its management or operational decisions
transparent enough to allow Congress to be sure that the department is
effectively, efficiently, and economically using its billions of
dollars of annual funding.[Footnote 4] We also noted that our work for
Congress to assess DHS's operations has been significantly hampered by
long delays in obtaining access to program documents and officials. We
emphasized that for Congress, GAO, and others to independently assess
the department's efforts, DHS would need to become more transparent and
minimize recurring delays in providing access to information on its
programs and operations.
At most federal agencies and in some cases within DHS, we obtain the
information we need directly from program officials, often on the spot
or very soon after making the request. For example, our work on the
Secure Border Initiative (SBI) has so far met with a very welcome
degree of access to both DHS officials and documents. SBI is a
comprehensive multiyear program established in November 2005 to secure
U.S. borders and reduce illegal immigration. One element of SBI is
SBInet, the program within the U.S. Customs and Border Protection (CBP)
responsible for developing a comprehensive border protection system of
tactical infrastructure, rapid response capability, and technology. The
fiscal year 2007 Department of Homeland Security Appropriations Act
required that, before DHS could obligate $950 million of the $1.2
billion appropriated for SBInet, it had to prepare a plan for expending
these funds, have it reviewed by GAO, and then submit it to Congress
for approval.[Footnote 5] The plan was to be submitted within 60 days
of the act's passage.
CBP officials provided us office space at CBP headquarters, gave us
access to all levels of SBInet management, and promptly provided us
with all the documentation we requested, much of which was still in
draft form and predecisional. DHS met the 60-day requirement when it
submitted its plan to the Appropriations Committees on December 4,
2006. We met our responsibilities by being able to review the plan as
it developed over the 60-day period, and to provide the results of our
review to the House and Senate Appropriations Committees on December 7
and 13, 2006, respectively.
In contrast to the access we were afforded in the above example, the
process used in most of our interactions with DHS is layered and time-
consuming. As discussed earlier, we are asked to submit each request
for documents to the component coordinator rather than directly to
program officials even if we have already met with these officials.
Also as mentioned earlier, the component coordinator often refers our
request to component counsel. And the Assistant General Counsel for
General Law in DHS's General Counsel's office may become involved. The
result is that we often wait for months for information that in many
cases could be provided immediately. In some cases, DHS does not
furnish information until our review is nearly finished, greatly
impeding our ability to provide a full and timely perspective on the
program under review.
Each access issue with DHS requires that we make numerous and
repetitive follow-up inquiries. Sometimes, despite GAO's right of
access to information, DHS delays providing information as it vets
concerns internally, such as whether the information is considered
deliberative or predecisional. At other times, we experience delays
without DHS expressing either a concern or a cause for the delays. On
other occasions, DHS is unable to tell us when we might obtain
requested information or even if we will obtain it.
We have encountered access issues in numerous engagements, and the
lengths of delay are both varied and significant and have affected our
ability to do our work in a timely manner. We have experienced delays
with DHS components that include CBP, U.S. Immigration and Customs
Enforcement (ICE), FEMA, and TSA on different types of work such as
information sharing, immigration, emergency preparedness in primary and
secondary schools, and accounting systems. I have examples of two
engagements to share with you today that illustrate the types of delays
we experience and how they have affected the timing of our work.
My first example is of an engagement related to detention standards for
aliens in custody, where the team working on this engagement
experienced delays of up to 5 months in obtaining various documents.
The objective of this work, which is still under way and is being done
for the House Committee on Homeland Security, is to assess ICE efforts
to review facilities that house alien detainees, determine whether the
facilities have complied with DHS standards, and determine the extent
that complaints have been filed about conditions in the facilities.
Some of the facilities are owned and operated by DHS; others are
operated under contract with DHS. In order to determine the extent to
which facilities are complying with DHS standards, we requested that
ICE provide copies of the reports of inspections it conducted in 2006
at 23 detention facilities. We requested those reports in December 2006
and did not receive the final four of the inspection reports until just
last week, after DHS departmental intervention. We had several meetings
and discussions with DHS officials including program officials,
liaisons, and attorneys, and we were never provided a satisfactory
answer about the reason for this 5-month delay. We also experienced
delays on this engagement obtaining a copy of the contract for detainee
phone services between ICE and the phone service contractor. DHS took 1
month to provide the contract and redacted almost the entire document
because a DHS attorney contended the information was "privileged." We
followed up with DHS officials to communicate that our authority
provided for access to this type of information and then waited another
2 weeks before we were able to get an unredacted copy of the contract.
In another engagement being done at the request of the then-Chairman of
the House Committee on Government Reform, we are reviewing an emergency
preparedness exercise that DHS conducted in June 2006 called Forward
Challenge 06. The purpose of the exercise was to allow agencies to
activate their continuity of operations plans, deploy essential
personnel to an alternate site, and perform essential functions as a
means of assessing their mission readiness. Our objective is to
determine the extent to which participating agencies were testing the
procedures, personnel, and resources necessary to perform essential
functions in their continuity-of-operations plans during the exercise.
We began our work a few months before the exercise and had arranged
with DHS to observe the actual exercise. However, 2 days before its
start, DHS officials told us we would not be permitted to observe the
exercise and stated that after completion, they would instead brief us
on the exercise and the lessons they had learned from it. They provided
that briefing in August 2006, at which time we requested relevant
documentation to support the claims the DHS officials made to us.
Subsequently, in November 2006, DHS provided us with one-third of the
agency after-action reports we requested but redacted key information,
including the identity of the participating agencies. DHS, however, was
reluctant to provide us with the balance of the documents requested,
stating that it considered these to be "deliberative materials" and
expressing concern that sharing these with us would have a significant
and negative impact on participants' level of openness in future
exercises. Despite GAO's right of access to the information, the
involvement of GAO and DHS officials at the highest level, and a letter
of support from the former and current chairman of the committee, we
did not receive access to the requested documentation until March 2007.
Our report for this engagement was to be issued in November 2006;
because we did not receive the needed information until March 2007, we
will not be able to issue our analysis until later this year.
GAO Has Taken and Suggested Steps to Resolve Access Issues with DHS:
We have made good faith efforts to resolve access issues. Specifically,
we have undertaken many steps to work with DHS to resolve delays as
expeditiously as possible and gain access to information needed for our
work. At our audit team level we have asked staff to set reasonable
time frames for requesting DHS to provide information and arrange for
meeting and when we encounter resistance, to ensure that the
information we request is critical to satisfying the audit objectives.
When delays occur, our approach is to involve various management levels
at both GAO and DHS, beginning with lower-level managers and working up
to the Comptroller General and the Secretary. At each level, our
managers and legal staff contact their counterpart liaisons and
counsel, component heads, or DHS senior managers, as appropriate,
either by telephone, e-mail, or letter, to communicate our access
authority and need for the information to satisfy audit objectives. Our
communication efforts have generally resulted in obtaining the
requested or alternative information, or making other accommodations.
We have proposed to DHS that the department take several steps that
would enhance the efficiency of its process. First, our staff should be
able to deal directly with program officials after we have held our
initial entrance conference. If these officials have concerns about
providing us requested information, they can involve DHS liaison or
coordinators. Second, to the extent that DHS counsel finds it necessary
to screen certain sensitive documents, it should do so on an exception
basis. Other documents should be provided directly to us without prior
review or approval by counsel. We provide DHS several opportunities to
learn how we are using the information its officials provide us--we
provide routine updates on our work to program officials; we provide
program officials, liaisons, and counsel a "statement of facts" that
basically describes what we learned during the engagement; and we
formally provide DHS a copy of our draft report that contains our
evidence, conclusions, and recommendations for its comment. There is no
reason to hold information back from us when it has been made available
to contractors, other federal agencies, state and local governments, or
the public, or when its only sensitivity is that DHS considers it
confidential or classified. The Secretary of DHS and the Under
Secretary for Management have stated their desire to work with us to
resolve access issues. We are willing to work with DHS to resolve any
access-related concerns. Nevertheless, we remain troubled that the
design and implementation of the current DHS process is routinely
causing unnecessary delays.
Mr. Chairman, this completes my prepared statement. I would be happy to
respond to any questions your or other members of the subcommittee may
have at this time.
Contact Information:
For further information about this statement, please contact Norman J.
Rabkin, Managing Director, Homeland Security and Justice Issues, on
(202) 512-8777 or rabkinn@gao.gov.
Individuals making key contributions to this testimony include Linda
Watson, John Vocino, Jan Montgomery, Geoff Hamilton and Richard
Ascarate.
[End of section]
Appendix I: Key GAO Audit and Access Authorities:
GAO's Audit and Evaluation Authority:
GAO has broad statutory authority under title 31 of the United States
Code to audit and evaluate agency financial transactions, programs, and
activities. Under 31 U.S.C. § 712, GAO has authority to investigate all
matters related to the receipt, disbursement, and use of public money.
Section 717 of title 31, U.S.C., authorizes GAO to evaluate the results
of programs and activities of federal agencies, on GAO's own initiative
or when requested by either house of Congress or a committee of
jurisdiction. Section 3523(a) of title 31 authorizes GAO to audit the
financial transactions of each agency, except as specifically provided
by law.
GAO's Access-to-Records Authority:
To carry out these audit and evaluation authorities, GAO has a broad
statutory right of access to agency records. Under 31 U.S.C. § 716(a),
federal agencies are required to provide GAO with information about
their duties, powers, activities, organization, and financial
transactions. When an agency does not make a record available to GAO
within a reasonable period of time, GAO may issue a written request to
the agency head specifying the record needed and the authority for
accessing the record. Should the agency fail to release the record to
GAO, GAO has the authority to enforce its requests for records by
filing a civil action to compel production of records in federal
district court.
A limitation in section 716, while not restricting GAO's basic
statutory right of access, acts to limit GAO's ability to compel
production of particular records through a court action. For example,
GAO may not bring such an action to enforce its statutory right of
access to a record where the President or the Director of the Office of
Management and Budget certifies to the Comptroller General and Congress
(1) that a record could be withheld under one of two specified
provisions of the Freedom of Information Act (FOIA)[Footnote 6] and (2)
disclosure to GAO reasonably could be expected to impair substantially
the operations of the government.
The first prong of this certification provision requires that such
record could be withheld under FOIA pursuant to either 5 U.S.C. §
552(b)(5), relating to inter-agency or intra-agency memorandums or
letters that would not be available by law to a party other than an
agency in litigation with the agency, or 5 U.S.C. § 552(b)(7), relating
to certain records or information compiled for law enforcement
purposes.[Footnote 7]
The second prong of the certification provision, regarding impairment
of government operations, presents a very high standard for the agency
to meet. The Senate report on this section 716 limitation stated:
"As the presence of this additional test [the second prong] makes
clear, the mere fact that materials sought are subject to 5 U.S.C.
552(b)(5) or (7) and therefore exempt from public disclosure does not
justify withholding them from the Comptroller General. Currently GAO is
routinely granted access to highly sensitive information, including
internal memoranda and law enforcement files, and has established a
fine record in protecting such information from improper use or
disclosure. Thus, in order for the certification to be valid, there
must be some unique or highly special circumstances to justify a
conclusion that possession by the Comptroller General of the
information could reasonably be expected to substantially impair
Government operations."[Footnote 8]
The committee report also points out that the Comptroller General's
statutory right of access to agency records is not diminished by the
certification provisions of the legislation. The certification simply
allows the President or Director of the Office of Management and Budget
(OMB) to preclude the Comptroller General from seeking a judicial
remedy in certain limited situations.[Footnote 9]
FOOTNOTES
[1] See appendix I for more information on key GAO audit and access
authorities.
[2] GAO, Government Auditing Standards, 2003 Revision, GAO-03-673G
(Washington, D.C; June 2003).
[3] GAO, GAO Agency Protocols, GAO-05-35G (Washington, D.C; Oct. 21,
2004).
[4] GAO, Homeland Security: Management and Programmatic Challenges
Facing the Department of Homeland Security, GAO-07-398T (Washington,
D.C.: Feb. 6, 2007); and GAO, Homeland Security: Management and
Programmatic Challenges Facing the Department of Homeland Security, GAO-
07-452T (Washington, D.C.: Feb. 7, 2007).
[5] Pub. L. No. 109-295, 120 Stat. 1355 (2006).
[6] The Freedom of Information Act, 5 U.S.C. § 552, as amended,
generally requires agencies to disclose documents to the public,
subject to certain specified exemptions.
[7] More specifically, this exemption category relates to records or
information compiled for law enforcement purpose, but only to the
extent that the production of such law enforcement records or
information (A) could reasonably be expected to interfere with
enforcement proceedings; (B) would deprive a person of a right to a
fair trial or an impartial adjudication; (C) could reasonably be
expected to constitute an unwarranted invasion of personal privacy; (D)
could reasonably be expected to disclose the identity of a confidential
source, including a state, local, or foreign agency or authority or any
private institution which furnished information on a confidential
basis, and, in the case of a record or information compiled by criminal
law enforcement authority in the course of a criminal investigation or
by an agency conducting a lawful national security intelligence
investigation, information furnished by a confidential source; (E)
would disclose techniques and procedures for law enforcement
investigations or prosecutions or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or (F) could
reasonably be expected to endanger the life or physical safety of any
individual.
[8] S. Rep. No. 96-570, at 7-8 (1980).
[9] Id. at 7.
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