On March 22, 2022, the Oversight Project hosted a panel discussion entitled “Examining Accountability and Transparency in the Biden Administration.” The event brought together expert practitioners from the Legislative branch, Executive branch, and private FOIA-requestor community to provide an update on the Biden Administration’s performance in major areas of government oversight and accountability centered on transparency. The event was moderated by the Honorable Glenn Fine, a Nonresident Fellow at the Brookings Institution and former Acting Inspector General for the Department of Defense and former Inspector General for the Department of Justice. Panelists included the Honorable Allison C. Lerner, Inspector General for the National Science Foundation and Chair of the Council of the Inspectors General on Integrity and Efficiency, DeLisa Ragsdale, Chief Investigative Counsel for the Senate Judiciary Committee Minority, Andrew M. Wright, Partner at K&L Gates and Senior Fellow at Just Security, and Adina Rosenbaum, attorney at the Public Citizen Litigation Group.
First, Mr. Fine asked what the Biden Administration has done with regard to access to information and barriers to oversight.
Chairperson Alison Lerner said the White House met several times with the Council of the Inspectors General on Integrity and Efficiency (CIGIE), offering support for legislative and day-to-day needs.
Chairperson Lerner noted that, as Vice President, President Biden engaged with Inspectors General concerns by supporting the American Reinvestment Act and meeting with the Recovery Board and Transparency Board.
Chairperson Lerner also noted that CIGIE has worked with the Biden Administration to submit recommendations to fill Inspectors General vacancies. Long-standing vacancies have been filled, such as the eight-year vacancy at the Export Import Bank of the United States and key positions like the Department of Defense (DoD) and Central Intelligence Agency. Some of the only notable remaining vacancies are State and Treasury, but Chairperson Lerner emphasized that the Biden Administration has exceeded past administrations that only filled one-third of Presidentially appointed Inspectors General positions.
Ms. DeLisa Ragsdale spoke with more than seven years of experience on the congressional side of investigations. There is generally less transparency from the congressional side, partly due to the Republican party being in the minority, making their congressional requests as effective as a lay FOIA requester. There is a bipartisan frustration that there is a presumption against production from the Executive branch that existed before the Trump Administration. Ms. Ragsdale said there has been a shift away from the weighing of Executive privacy interests and the obligation to respond to Congress that President Washington initially formulated.
Mr. Andrew Wright spoke about the Biden Administration trying to push back towards Obama and Bush Administration oversight, weighing the legitimate interests of Congress against the confidentially interests in the Executive branch. Mr. Wright is concerned that the sweater won’t go back to its original form. The Supreme Court’s decision in Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020) solidified judicial review to take note of legislative purpose when reviewing congressional requests for information. Mr. Wright proposed there should be a way for ranking members of congressional committees to have a heightened requesting power, though the process now only recognizes the committee chairs as the voice of the committee.
Mr. Glenn Fine asked Chairperson Lerner whether the recent Office of Management and Budget (OMB) December memo encouraging agency heads to work closely with their respective Inspectors General was effective.
Chairperson Lerner noted that this OMB memo was a response to a survey done by CIGIE that found nearly half of the Inspectors General did not have a statement of cooperation from their agency head. CIGIE created a template for these Inspectors Generals in the hopes that these statements from agency heads would be woven into the fabric of agencies. Creating longstanding statements of cooperation helps create ongoing relationships with agency heads, even as new heads come in with little prior experience with Inspectors Generals. The White House has been productive in keeping access to information, particularly data sets, which has been increased under the Biden Administration. Mr. Fine offered perspective as an Inspectors General that creating ingrained working relationships with agency heads, that is written into the rules, helps new agency heads understand the nature of their relationship.
Mr. Fine then asked whether the Biden Administration had been more responsive to information requests and to what degree there was a good-faith response to congressional requests for information.
Mr. Wright said that while he worked on the Biden Transition Team, he saw a strategic question of whether the administration would look back at the previous administration or turn the page. The Biden Administration largely wanted to turn the page to address the concerns in the country. The Biden Administration has walked a tightrope with an intra-party conflict for how much congressional oversight should be given, with an eye toward potentially having Republican control of Congress.
Ms. Ragsdale noted that Congress has seen little results of increased responsiveness. Joint requests have been delayed for months, as has been a common issue with every administration. Congress largely relies on Inspectors Generals in order to stay informed due to these long request delays.
Mr. Fine asked how the Biden Administration has done with the speed of Freedom of Information Act (FOIA) requests because FOIA is important in keeping the government open and transparent.
Ms. Rosenbaum said that there had not been a change between any administration with the request speed. While the law says the FOIA request should be fulfilled within twenty days, Ms. Rosenbaum still has requests from 2016 pending. Ms. Rosenbaum recommended increased resources dedicated to FOIA and encouraging affirmative disclosures, so there is not a need for FOIA requests.
Chairperson Lerner said that there is a large interest among Inspectors Generals to have subpoena authority. Inspectors Generals struggle to complete their investigations because they can only receive documents but are unable to compel witness testimony under subpoena authority. Currently, the DoD and Department of Health and Human Services Inspectors Generals have this authority.
Chairperson Lerner hoped that CIGIE could be funded by one direct source rather than having a small percentage of each agency’s budget applied to CIGIE. Further, Chairperson Lerner hoped for changes to the Federal Vacancies Reform Act to create a pool of independent candidates to fill in as Acting Inspectors Generals. Further, Chairperson Lerner recommended requiring agencies to provide Congress with thirty days’ notice before placing an IG on non-duty status to allow the position to be filled.
Mr. Fine asked whether Executive Privilege has changed due to the Trump Administration and the January Sixth Investigation.
Mr. Wright said that the Trump Administration had a unique, though not uncommon, blend of political and personal conduct. There is a rising trend in court decisions to differentiate between personal conduct, even if it takes place in the Oval Office, and Executive Privilege. The President only has one calendar and one plane to accomplish both personal and professional duties, so untangling between these roles will become more prevalent.
Ms. Ragsdale noted that reform proposals draw distinctions between former officials and current officials. Allowing for differentiation between current and former officials lowers the bar overall for Executive Privilege claims and opens the door for each administration to investigate issues from a political perspective.
Finally, Mr. Fine asked all the panelists whether there is a need for the Judicial branch to have an Inspectors General, given both Legislative and Executive branch entities have this form of oversight. Also, based on a recent Oversight Project article, whether there should be an Inspector General in the Executive Office of the President (EOP).
Ms. Ragsdale noted that there are currently bills to require the judiciary to have Inspectors Generals for oversight. However, similar bills have been proposed before and rarely move out of committee. Though, Ms. Ragsdale said placing an Inspector General in the EOP would require a different structure and form for the Inspector General since the EOP was not a congressionally created agency. Further, there would be issues of Executive Privilege in creating an Inspector General in the EOP.
Chairperson Lerner said that transparency and oversight are critical in government, and Inspectors Generals help create public trust in the government. There are over forty years of experience with Executive and congressional Inspectors Generals that show a workable framework for the Judicial branch. The Judicial branch would benefit by having an Inspectors General who can speak to the public and build trust in the Judicial branch.
Mr. Fine said that while separation of powers issues may arise in the discussion of this proposal, he believes they can and should be overcome, as there is bound to be waste and abuse in any organization as large as the judiciary.
In final advice to the Biden Administration, Chairperson Lerner stressed the importance of FOIA as a tool to increase transparency and trust in the government. Ms. Rosenbaum advised that transparency is important in its own right and essential to a functional democracy. Mr. Wright advised that Congress give itself adequate resources and infrastructure to handle oversight. Lastly, Ms. Ragsdale echoed the need to expedite oversight, and the White House should create an environment of transparency from the top-down. If more agency employees and officials started work with the initial thought of how to share as much information as possible, then there is a better showing of good faith actions.