The High Cost of Congressional Demands for Agency Documents

On April 8, a top House lawmaker issued a familiar complaint about a federal agency. The Justice Department, said House Oversight and Government Reform Committee Chairman Jason Chaffetz, R-Utah, failed to meet a court-ordered deadline to release important documents related to Operation Fast and Furious, the botched gun-walking project initiated by the Bureau of Alcohol, Tobacco, Firearms and Explosives to track the illegal sale of firearms believed to be used by Mexican drug cartels.

“As we've long asserted, the committee requires and is entitled to these documents,” Chaffetz said, citing a January district judge’s ruling that the Obama administration cannot use executive privilege to keep the documents secret. “They are critical to the committee’s efforts to complete meaningful oversight,” Chaffetz said.

What Chaffetz only hinted at was the fact that he and his predecessor on the committee, former chairman Darrell Issa, R-Calif., have been waging the documents battle since 2011.

Chaffetz’ criticism was only the latest in a string of clashes between mostly Republican committee members and agencies—many of them involving subpoenas—that pits the lawmakers’ desire to perform aggressive oversight against agency employees’ desire to protect private deliberations and conserve limited staff resources.

In recent weeks, Chaffetz has demanded a range of documents from agencies, including records related to executive bonuses given by the FBI, Forest Service and Bureau of Land Management, as well as inventories of all works of art and artifacts held by 25 agencies. A search of news releases on the House Oversight panel’s website containing the word “subpoena” showed, over the past five years, demands for documents from the following:

• Office of Information and Regulatory Affairs (records on water regulations)
• Defense Department (Secretary Ash Carter’s emails)
• Internal Revenue Service (records related to the dispute over political bias in handling tax-exemption applications)
• Office of Personnel Management (information related to the 2015 data breach of personnel files and security clearance outsourcing)
• Secret Service (data on various security lapses and employee misconduct)
• Ex-Im Bank (information on alleged recordkeeping failures)
• National Park Service (information about sequestration strategies)
• Labor Department (documents on official use of personal email)
• Energy Department (documents related to fracking and Solyndra, the failed subsidized solar panel firm)
• Environmental Protection Agency (documents related to the handling of applications for mining at Alaska’s Bristol Bay)
• National Labor Relations Board (records related to alleged pro-union bias in handling Boeing’s threat to move a plant to South Carolina)
• State Department (records related to the Keystone Pipeline)
• Securities and Exchange Commission (documents related to an attorney invested with fraudster Bernie Madoff)
• The White House (records related to reestablishing its abolished political office).

Those are only some of the subpoenas out there. The State Department, of course, has spent years responding to document demands from the multiple committees investigating the 2012 deaths of four Americans at the hands of terrorists in Benghazi, Libya.

The House Veterans’ Affairs Committee, under Rep. Jeff Miller, R-Fla., is continuing a two-year-old probe of that agency’s misreported patient wait times, construction cost overruns and executive bonuses.

And the House Science, Space and Technology Committee, which in 2013 issued its first subpoena in 21 years, under Chairman Lamar Smith, R-Texas, has demanded documents from White House Chief Technology Officer Todd Parks and the Office of Science and Technology Policy on the rollout of healthcare.gov; from the National Oceanic and Atmospheric Administration on a climate change study some thought was rushed for political reasons; and from the EPA on officials’ use of personal email and alleged use of “secret science” to regulate.

Is It Worth It?

To certain Democrats, to observers of Congress, and to many of those people in agencies who bear the brunt of the added workload, this surge in document requests is problematic for multiple reasons.

“Under Republican leadership, we have witnessed a sharp uptick in abusive and overly broad document requests in investigations when we already know the facts,” Rep. Elijah Cummings, D-Md., ranking member on the House Oversight committee, told Government Executive. He cited the IRS, “which spent tens of millions of dollars responding to congressional inquiries even after the inspector general, the Department of Justice and Congress identified no evidence of political motivation. Ironically, the cost to taxpayers for agencies to fulfill these requests often exceed the potential for cost savings,” said Cummings, who clashed with Issa early over whether committee subpoenas should be approved by both the majority and minority parties.

“Although our current chairman has undertaken significant investigations that we support, I hope our committee will be used to help everyday Americans rather than as a weapon against political opponents.”

Jason Briefel, acting president of the Senior Executives Association, said: “Some lawmakers do just blast at will inquiries to agencies, at times overly broad or requiring a quick turnaround period, which gives them a press release and their name in the news. That produces an agency workload, and if the agency is unable to provide a timely or adequate response, the lawmaker can issue a critical statement. It’s a perfect circle,” he added. “Is there a legitimate oversight role that sometimes clashes with agencies? Absolutely.”

Political scientist Norman Ornstein, a longtime chronicler of Congress at the American Enterprise Institute, finds the document demand surge unsurprising, given the cast of characters. “Chaffetz is a very energetic and ambitious House member, very confrontational and hostile to Obama and his administration,” he said. “So you put him in a position of power, and he’s obviously going to follow in the footsteps of Issa.”

Expressing puzzlement at Chairman Smith’s belief that man-made climate change is a hoax, Ornstein attributed to Smith the same tendency as Chaffetz to use a chairmanship for personal ideological advocacy. “If you want to see government fail, and if you don’t like government, you blow it up,” said the co-author of a book critical of Republican rule in Congress titled “It’s Even Worse Than It Looks.”

Republicans “haven’t succeeded in eliminating any agencies,” Ornstein said, so perhaps the next best thing is “making the lives of the people administrating the programs miserable, to distract them.” And after “a fishing expedition for documents, if you’re really lucky, you might find something.”

From the agency point of view, meeting congressional document demands—like meeting requesters’ demands for disclosures under the Freedom of Information Act—is a time-and resource-consuming task. Often multiple people must review or redact documents to protect individual privacy or exemptions under FOIA such as that for pre-decisional documents that allow agencies to freely deliberate. Not to mention the more-political question of White House equities for which the president may invoke protections of executive privilege.

There’s also the expense. Mary Howard, director of privacy, governmental liaison, and disclosure at the IRS, told the House Oversight committee last June that a single request [under FOIA] frequently can result in the IRS needing to collect and redact thousands of documents.” In addition, the number of cases considered to be “complex”—containing issues or volumes of records too difficult to resolve within the statutory time frame—has increased as well,” she said. Congress’ multiple IRS probes alone required 250 staffers working a total of 160,000 hours working directly on complying with the investigations, at a cost of $20 million (including the cost, she said, of adding capacity to the agency’s limited information technology systems).

The Value of Oversight

Government Executive asked four House chairmen whether they were concerned about the expense and diverted agency staff hours prompted by the rise in document requests.

Chaffetz said through a committee spokesperson, “Congress has an obligation to conduct oversight of the federal government and document production is critical to that process.”  Issa, who now chairs a subcommittee on courts, intellectual property and the Internet, said via email that, “Taxpayers have a right to know what they’re getting from their government. They deserve an efficient and effective government that works for them, but only when Congress and the American people are enabled to seek and actually obtain information on their government is that made possible."

Citing Congress’s constitutional obligation to conduct oversight, Issa added, “In my time at Oversight, we saw time and time again when administrators would repeatedly slow-walk and delay releasing any information that might embarrass the administration, impeding Congress’ ability to serve as a check on the executive branch as the Constitution requires. As the size and scope of government continues to grow bigger than ever before, it makes sense that Congress and the American people would seek more information on its activities.” 

 Issa acknowledged that fulfilling these requests requires time and effort from agency staff. “That’s exactly why the House and Senate have recently passed FOIA reform bills that will help streamline this process, reduce duplication of efforts and make it easier for administrators to get Congress and the American people the information they deserve," he said.

Veterans’ Affairs chairman Miller also cited his panel’s constitutional duty “to provide robust oversight of VA, and we will never apologize for doing so. In fact, if it wasn’t for our efforts in this regard, thousands of veterans would likely still be stuck on secret waiting lists, and VA villains like Sharon Helman—who recently pled guilty to felony charges—would still be on the VA payroll. The notion that it’s too much to ask VA, an agency with well over 340,000 employees, to respond to the roughly 220 outstanding requests for information from our committee,” Miller said, “is simply absurd and signifies that the arrogance and lack of transparency that led to the VA scandal still permeates certain corners of the department.”

He went further. Agency efforts at “vetting and redacting are not necessary at all because there are very few restrictions on the type of information agencies can provide congressional committees of jurisdiction,” Miller added, stressing that all his committee’s subpoenas to the VA were bipartisan and issued after long agency delays. “The fact that some are trotting out these red-herring excuses simply underscores how much more change is needed to reform VA.”

A spokesman for Lamar Smith referred to a February op-ed published in USA Today with the byline of Smith and five other House committee chairman. “Mr. Obama, don’t let secrecy be your legacy,” read the headline. “At nearly every turn, this administration has blocked public disclosure and ignored almost every law intended to ensure open and accountable government,” the lawmakers wrote, citing Hillary Clinton’s State Department emails and former EPA chief Lisa Jackson’s fictional email address, along with the familiar litany of controversies at the IRS, VA and Homeland Security Department.

The lawmakers pointed to an Associated Press characterization of Obama administration delays in answering FOIA documents, inspectors general complaining of agencies blocking their requests, and the Center for Effective Government’s awarding the administration a “D” for public access to information.

“It is the job of Congress and our agency watchdogs to ensure the federal government is efficient, effective and accountable to the American people,” the House members wrote. “But time and time again, this administration has dismissed Americans’ right to know.”