GAO's Work at the FBI: Access to Data, Documents, and Personnel
(20-JUN-01, GAO-01-888T).
Over the past five years, GAO has issued about 50 products that
include information related to the Federal Bureau of
Investigation's (FBI) operations and activities. When GAO
initiates work with federal agencies, it formally notifies key
officials about the planned review and meets with them to discuss
objectives. In the course of its work, GAO routinely receives
large amounts of information, some of it highly sensitive, and
has an excellent record in relation to safeguarding sensitive and
classified information. This testimony discusses, (1) GAO's
statutory access authority to federal records, and (2) access
problems with the FBI. GAO found that it has broad statutory
right of access to agency records in order to conduct audits and
evaluations. If agencies do not make information available in a
reasonable time, GAO has the authority to demand access by
sending the head of the agency a letter stating GAO's authority
and its reasons for needing the information. The agency has 20
days to respond, after which the Comptroller General may file a
report with the President, the Director of the Office of
Management and Budget (OMB), the head of the agency, and
Congress. If the agency still has not granted access within
another 20 days, the Comptroller General can bring suit in
federal district court unless (1) the records relate to
activities the President has designated as foreign intelligence
or counter-intelligence activities, (2) the records are
specifically exempt from disclosure by statute, or (3) the
President, or the OMB Director certifies that the information
being requested is covered by one of the two exemptions listed in
the Freedom of Information Act and that disclosure reasonably
could be expected to impair substantially the operations of the
government. One of the greatest problems GAO has in accessing FBI
documents is delay in both receiving documents and meeting with
officials. Other problems include poor documentation, few details
from interviews with FBI officials, and complete denials of
access.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-01-888T
ACCNO: A01221
TITLE: GAO's Work at the FBI: Access to Data, Documents, and
Personnel
DATE: 06/20/2001
SUBJECT: Classified information
Interagency relations
Freedom of information
Government information
Law enforcement agencies
******************************************************************
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GAO-01-888T
Testimony Before the Committee on the Judiciary, United States Senate
United States General Accounting Office
GAO For Release on Delivery Expected at 1: 00 p. m. Wednesday, June 20, 2001
GAO?S WORK AT THE FBI
Access to Data, Documents, and Personnel
Statement of Norman J. Rabkin, Managing Director, Tax Administration and
Justice Issues
GAO- 01- 888T
Page 1 GAO- 01- 888T Access to FBI Records
I am pleased to be here today to discuss our recent experiences with the
Federal Bureau of Investigation (FBI) related to access to the data,
documents, and personnel that we have requested in doing our audit work for
the Congress. Concern about access to records and people at the FBI is not a
new topic for us. Indeed, in July 1991 we testified on access problems that
we had at the Justice Department, most of which involved the FBI. Although
Congress has not asked us to do a significant body of work at the FBI, we
believe that there are many areas where we can make a contribution to
improving the agency?s activities and its management of them.
Let me start by outlining our statutory right of access to agency records,
including those at the FBI, and follow with some examples from our recent
experience. Most of these examples are related to specific access problems.
I also want to note some positive experiences as well, because although not
the norm, we want to present a fair picture.
In summary, the Congress has given us broad authority to access the FBI?s
data, documents, and personnel in order to conduct our audits, evaluations,
and investigations. This is the same authority we rely on to perform our
work at all federal agencies. While things go smoothly on occasion, on many
other occasions our access at the FBI has been difficult, resulting in us
having to follow cumbersome procedures to meet with Bureau officials and get
basic information about their programs and activities. We have had access
issues in a number of agencies over the years. However, across law
enforcement- related agencies, FBI access issues have been the most
sustained and intractable.
Over the past 5 years, we have issued about 50 products that include
information related to the FBI?s operations and activities. In only about 10
cases, however, has the FBI been the focus of this work. For example, our
report on the National Infrastructure Protection Center (NIPC), located
within the FBI, describes its progress in developing national capabilities
for analyzing cyber threats and vulnerability data and issuing warnings,
enhancing its capabilities for responding to cyber attacks, and establishing
information- sharing relationships with government and private- sector
Background
Page 2 GAO- 01- 888T Access to FBI Records
entities. 1 More often, our work includes the FBI as one of multiple
agencies that are the subject of a given review. For example, last year we
reviewed security protection for agency officials and the FBI was but one of
30 agencies that we covered.
When we initiate work with federal agencies we formally notify key officials
about the planned review and meet with them to discuss the objectives of our
work. At that meeting we try to determine which agency officials we should
interview and what documents or data the agency has that may pertain to our
work. At the FBI (and at other agencies), a designated liaison acts as our
contact for arranging meetings and access to documents. With few exceptions,
we work through the FBI liaison rather than contacting FBI officials
directly.
In the course of our work across almost all federal agencies, we routinely
receive large amounts of information, some of it highly sensitive. We are
careful to guard the security of this information in a manner that meets or
exceeds the safety standards established by the source agencies. We have an
excellent record in relation to safeguarding sensitive and classified
information.
We have broad statutory right of access to agency records in order to
conduct audits and evaluations. Under 31 U. S. C. 716( a), federal agencies
are required to give us ?information? about the duties, powers, activities,
organization, and financial transactions of the agency.? This statute
applies to federal agencies, including those performing law enforcement
functions (such as the FBI), and does not exempt law enforcement information
from our access authority. If agencies do not make this information
available in a reasonable time, we have the authority to demand access. We
do this by sending the head of the agency a letter stating our authority and
our reasons for needing the information. The agency has 20 days to respond,
after which the Comptroller General may file a report with the President,
the Director of the Office of Management and Budget (OMB), the head of the
agency, and the Congress. If the agency still has not granted us access
within another 20 days, the Comptroller General can bring suit in federal
district court unless (a) the records relate to activities the President has
designated as foreign intelligence or counter- intelligence activities, (b)
the
1 NIPC was established in 1998 as an outgrowth of the FBI?s Computer
Investigations and Infrastructure Assessment Center and is located in the
FBI?s Counterterrorism Division. The NIPC director and most of the analysts
are FBI staff. Other staff are detailees from other federal agencies and
from international partners such as Canada. GAO?s Statutory
Access Authority
Page 3 GAO- 01- 888T Access to FBI Records
records are specifically exempt from disclosure by statute, or (c) the
President or the OMB Director certifies that the information being requested
is covered by one of two exemptions listed in the Freedom of Information Act
(FOIA), 2 and that disclosure reasonably could be expected to impair
substantially the operations of the government. (See 31 U. S. C. 716( d).)
In the past, we issued a demand letter to the FBI requiring it to provide us
with information in accordance with our statutory authority. In that
instance the FBI ultimately complied with our request. However, the use of
our statutory enforcement authorities can be adversarial and timeconsuming.
We prefer to work out arrangements that will serve us well in all our work
with the FBI and, therefore, enable us to respond promptly and completely to
congressional requests.
In that spirit, in March 2000 we met with FBI officials to discuss numerous
specific access issues and to try to work out more efficient arrangements to
complete our work. At that meeting, and in a subsequent letter from the
Assistant Director of the FBI?s Office of Public and Congressional Affairs,
the FBI pledged to do a better job in providing us access to records and
people. As you will see from the recent examples cited in this testimony,
our access problems have not been resolved.
The types of recent access problems fall into several categories and
sometimes overlap. One of our greatest problems is delay. This relates to
both receiving documents that we have requested and arranging meetings with
FBI officials. We have experienced significant delay in an engagement we are
just finishing - a review requested by Senator Fred Thompson
2 The two relevant FOIA exemptions are exemptions 5 and 7. Exemption 5
(contained in 5 U. S. C. 552( b)( 5)) exempts from public disclosure inter-
agency or intra- agency memorandums or letters which would not be available
by law to a party other than an agency in litigation with the agency.
Exemption 7 (contained in 5 U. S. C. 552( b)( 7)) exempts from public
disclosure records or information compiled for law enforcement purposes, 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?; (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. Multiple Types of
Access Problems With the FBI
Page 4 GAO- 01- 888T Access to FBI Records
when he was the chairman of the Senate Governmental Affairs Committee. The
focus of that review is the FBI?s coordination of foreign
counterintelligence investigations, where criminal violations are
implicated, with other components within the Justice Department, most
notably the Criminal Division. Although this is a very sensitive subject,
our work focused on coordination policies and procedures and the FBI?s
adherence to them, not on the decisions regarding the investigations or the
intelligence they produced. A work log maintained for this job indicates
that 112 days elapsed from when a written list of questions was delivered to
the FBI to the delivery of its response. 3 During this almost 4- month
period, we contacted the FBI at least 15 times to inquire about the status
of the response.
In another case, we experienced delays in receiving documentation for our
work requested by Rep. Christopher Shays, Chairman of the House Government
Reform Subcommittee on National Security, Veterans? Affairs, and
International Relations, and Rep. Ike Skelton, Ranking Minority Member of
the House Committee on Armed Services. The request concerned coordination
between the FBI and several other federal agencies. The issue again was very
sensitive, and the report was classified. Beginning in May 1999, we had
asked the FBI to produce documents showing administrative guidance it had
issued on these activities, the process by which these activities were
approved, the timing and duration of specific activities, and evidence of
interagency coordination. FBI officials told us they would locate and gather
the documents for us. In December 1999, after senior GAO executives
intervened, the FBI provided us a minimal and incomplete summary - not
copies of original documents. In February 2000 - 9 months after our initial
request - FBI officials told us they had no documentation or other records
on the activities.
In other examples, we experienced delays in receiving documents related to
our work on reports entitled, Gun Control: Implementation of the National
Instant Criminal Background Check System and Combating Terrorism: Federal
Agencies? Efforts to Implement National Policy and Strategy, among others.
Needless to say, these delays affected our ability to do our work
efficiently and adversely affected our ability to provide
3 Due to our experience on FBI reviews, we have urged our staff to keep
detailed records of their requests for data or meetings, the FBI?s responses
to those requests, and subsequent contacts when the agency does not respond
in a timely manner.
Page 5 GAO- 01- 888T Access to FBI Records
timely information and advice to the Congress by postponing the issuance of
our reports.
Setting up meetings with FBI officials can also be a lengthy process. While
the FBI has told us that its goal is to organize meetings within 2 weeks,
elapsed time from meeting request to actual meeting for 3 of the 4 meetings
on a current job took 35 days, 41 days and 124 days. In the last case, when
the meeting finally took place, the FBI sent substitutes for the official
who was originally expected to attend the meeting. In these cases and in
many more, the failure of the then FBI liaison and the liaison?s superiors
to return telephone calls concerning the status of our request added to our
frustration and inefficiency.
Another problem relates to the quality of documentation the FBI provides. In
our recent work related to the NIPC, requested by Senator Jon Kyl, then
Chairman, and Senator Dianne Feinstein, then Ranking Member, of the
Subcommittee on Technology, Terrorism, and Government Information, we
encountered numerous occasions in which the FBI was only able to provide us
with unsigned and undated printouts of documents we requested rather than
final signed versions. Another case related to our work that resulted in the
classified report mentioned earlier. The FBI sent us an ?unofficial?
document without letterhead, signature, date, or cover letter. This presents
problems for ensuring that the information represents the official position
of the agency and when the position became effective.
FBI officials in some cases have not been forthcoming with the types of
details that would provide a richer picture of the issues we are auditing.
In the case of our NIPC work, the FBI gave us a great deal of detailed
information, much of which reflected favorably on its program, after
receiving a draft of our report. Had this information been provided earlier
when we originally asked for it - we could have done a more efficient job in
conducting our audit work and drafting our initial report.
While infrequent, in some cases the FBI has denied us access to the
information we have requested. For the most part, the information requested
has been no more sensitive than information we routinely receive from other
agencies during our work. For example, for our work related to federal teams
that respond to chemical, biological, radiological, and nuclear terrorist
incidents (requested by Rep. Ike Skelton, the Ranking Minority Member of the
House Armed Services Committee), the FBI refused to provide us with
information on the missions, budget, and resources of its response teams.
The FBI said that providing the information to us would jeopardize the
teams? operational security, even
Page 6 GAO- 01- 888T Access to FBI Records
though the information was unclassified. Although we could have acted to
enforce our request for this information through the statutory mechanisms
described earlier, we decided to drop the FBI from the scope of our review.
We needed to provide our client a composite picture of all federal agencies
involved in this effort (we reported on 8 such agencies) and did not want to
delay our report waiting for information from one agency.
We have had some assignments involving the FBI in which access was not
problematic. For a review of federal funding of the Los Angeles, Atlanta,
and Salt Lake City Olympic Games, for example, a request for information
about the types of projects and activities the FBI was funding was answered
in a timely and cooperative manner. Similarly, information for a review of
computer security expenditures was provided with only minimal delays.
Finally, although there were some delays in scheduling meetings and gaining
access to documents, work on improving counterterrorism operations was not
significantly delayed because other tasks could be completed while waiting
for the requested information. Our staff on this assignment did not consider
access a problem.
Although our examples of reviews that encountered access problems span a
large number of assignments, in these assignments as well there are examples
of good cooperation in providing information. The team working on the NIPC
engagement, for example, found that field agents provided detailed and
useful information when they were interviewed and that access improved
during our review. We also note that for one meeting on our current foreign
counterintelligence coordination assignment, a meeting was held the day
after it was requested.
While over time we have experienced access- to- records problems at
different federal agencies, our experience at the FBI is by far our most
contentious among law enforcement agencies. The FBI?s reluctance to
consistently honor our statutory rights of access has forced us to expend
significant energy and resources. The FBI has also limited our ability to
respond to our clients - congressional committees and individual Members of
Congress - in a timely and efficient way.
We recognize that the FBI?s responsibility to investigate criminal activity
carries with it a set of imperatives that limits its discretion to
disseminate certain types of information, to protect the rights of the
accused and the integrity of the investigative process. We believe, however,
that these imperatives do not exempt the FBI from congressional oversight.
The FBI No Access Problems
in Some Recent Reviews
Conclusions
Page 7 GAO- 01- 888T Access to FBI Records
can and should provide a much wider range of information about its
activities to the Congress and to us.
A partially informed Congress cannot provide adequate oversight, balance
competing interests fairly, resolve issues effectively, or deliberate
soundly.
Mr. Chairman, this concludes my prepared statement. I would be pleased to
answer any questions you may have.
(440064)
*** End of document. ***
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