[Senate Report 112-159]
[From the U.S. Government Publishing Office]
112th Congress Report
SENATE
2d Session 112-159
_______________________________________________________________________
Calendar No. 363
GOVERNMENT ACCOUNTABILITY OFFICE IMPROVEMENT ACT OF 2011
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 237
TO AMEND TITLE 31, UNITED STATES CODE, TO ENHANCE THE OVERSIGHT
AUTHORITIES OF THE COMPTROLLER GENERAL, AND FOR OTHER PURPOSES
April 24 (legislative day, April 23), 2012.--Ordered to be printed
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri ROB PORTMAN, Ohio
JON TESTER, Montana RAND PAUL, Kentucky
MARK BEGICH, Alaska JERRY MORAN, Kansas
Michael L. Alexander, Staff Director
Beth M. Grossman, Deputy Staff Director and Chief Counsel
Jonathan M. Kraden, Counsel
Nickolas A. Rossi, Minority Staff Director
Mark B. LeDuc, Minority General Counsel
Clyde E. Hicks, Minority Professional Staff Member
Trina Driessnack Tyrer, Chief Clerk
Calendar No. 363
112th Congress Report
SENATE
2d Session 112-159
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GOVERNMENT ACCOUNTABILITY OFFICE IMPROVEMENT ACT OF 2011
_______
April 24 (legislative day, April 23, 2012).--Ordered to be printed
_______
Mr. Lieberman, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 237]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 237) to amend title
31, United States Code, to enhance the oversight authorities of
the Comptroller General, and for other purposes, having
considered the same, reports favorably thereon with amendments
and recommends that the bill do pass.
CONTENTS
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................5
IV. Section-by-Section Analysis......................................6
V. Evaluation of Regulatory Impact..................................7
VI. Congressional Budget Office Cost Estimate........................7
VII. Changes in Existing Law Made by the Bill, as Reported............8
I. Purpose and Summary
S. 237, the Government Accountability Office Improvement
Act of 2011, responds to efforts by the executive branch to
restrict the ability of the Government Accountability Office
(GAO) to aid Congress in performing its oversight functions.
GAO is a legislative branch agency that helps Congress by,
among other things, investigating Federal agencies'
implementation of Federal programs. The bill both confirms and
enhances GAO's investigative powers by putting a statutory stop
to several steps taken by the executive branch to curtail GAO's
authority. Specifically, it makes clear that the Comptroller
General (the head of GAO) has standing to pursue litigation to
compel access to Federal agency information; GAO has the right
to make and retain copies of agency records; GAO can administer
oaths to witnesses when conducting certain types of
investigations; and GAO has the authority to access specific
categories of records that have been denied to GAO by the
Department of Health and Human Services, the Food and Drug
Administration, the Federal Trade Commission, and the
Department of Justice. S. 237 also confirms GAO's
responsibility to protect sensitive information and requires
GAO to prescribe the policies necessary to protect proprietary
or trade secret information from public disclosure.
II. Background and Need for the Legislation
In order to carry out its constitutional responsibilities,
the Congress must have information about the need for future
Federal legislation, as well as how current Federal programs
are working. Congress often relies on GAO to help seek, process
and analyze that information. GAO evaluates Federal programs
and activities, and it informs Congress, executive agencies,
and the public whether the government and those involved in
implementing Federal programs are doing their jobs well, or are
instead running Federal programs in a manner that makes them
vulnerable to waste, fraud, abuse, and mismanagement. GAO's
audits, evaluations and reports provide reliable assessments as
to whether the taxpayers are receiving full value from
important government programs.
To carry out this role, Congress long ago gave GAO a
statutory right of access to information and records in the
possession of Federal agencies. Although GAO has faced sporadic
executive branch resistance throughout its history, several
efforts by the executive branch have more significantly
jeopardized GAO's ability to give Congress the information it
needs to legislate effectively, conduct meaningful oversight,
and audit the use of appropriated funds. Since existing law is
sufficient authorization for GAO to obtain executive branch
information, this denial of information is unjustified. S. 237
is intended to increase the effectiveness of GAO by ensuring
that GAO is not unreasonably restricted in its efforts to
secure necessary information in the course of performing its
auditing and investigative functions for the Congress.
STANDING TO BRING CIVIL ACTION TO COMPEL PRODUCTION OF MATERIAL
To begin with, S. 237 responds to a judicial decision that
threw into doubt GAO's authority to compel production of
material from the executive branch.\1\ In 1980, Congress passed
legislation authorizing the Comptroller General to ``bring a
civil action in the district court of the United States for the
District of Columbia to require the head of the agency to
produce a record[.]''\2\ In February, 2002, GAO sought to use
that authority after then-Vice President Cheney's energy task
force refused to give GAO records it requested. The U.S.
District Court for the District of Columbia dismissed GAO's
suit.\3\
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\1\Walker v. Cheney, 230 F. Supp. 2d 51 (D.D.C. 2002).
\2\Pub. L. No. 96-226, codified at 31 U.S.C. Sec. 716(b)(2).
\3\Walker v. Cheney, 230 F. Supp. 2d 51 (D.D.C. 2002).
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In dismissing GAO's lawsuit, the Court did not rule on the
merits of GAO's basic statutory authority to conduct this
particular audit or to obtain access to the records in
question. Rather, the Court held that the Comptroller General
did not have standing to file the lawsuit, finding that the
Comptroller General did not suffer an ``injury in fact.'' The
Court found that the Comptroller General suffered no
institutional injury because the Comptroller General, acting as
an agent of Congress, could suffer only the same injury as
Congress and that Congress' injury was too ``vague and
amorphous'' to confer standing.
The decision in Walker v. Cheney is inconsistent with the
Comptroller General's role and responsibility as set forth in
GAO's statute and the Congress' intent when enacting it. The
decision undermines GAO's ability to successfully carry out the
investigative responsibilities delegated to it by Congress as
well as Congress' constitutional prerogatives to determine how
best to carry out its oversight responsibilities. Both GAO and
Congress face cognizable injury when the Comptroller General is
denied access to agency records sought to fulfill his statutory
mission to inform Congress. This ``informational'' injury is
sufficient to satisfy the constitutional requirement of a
justiciable ``case or controversy'' to enable the Comptroller
General to pursue a civil action to enforce GAO's statutory
right to access agency records to fulfill its reporting
responsibilities to Congress. S. 237 reaffirms and makes
explicit the authorization that Congress gave to the
Comptroller General to redress the injury-in-fact sustained
when agencies improperly withhold material from GAO, by
initiating a lawsuit, without the need for additional approval.
It is this Committee's expectation that before pursuing
such litigation the Comptroller General will, as he did prior
to filing Walker v. Cheney, first exhaust other avenues that
are available to obtain the necessary information. Should such
attempts fail, however, it is the intention of Congress to
allow the Comptroller General to seek a judicial remedy to
enforce GAO's right to information under the law.
STATUTORY RIGHT TO MAKE AND RETAIN COPIES OF AGENCY RECORDS
S. 237 also reaffirms that GAO has the statutory right not
only to inspect agency records,\4\ but also to make and retain
copies of agency records. A number of court precedents have
established that the statutory right to inspect a record
implies the right to inspect them in an effective manner, which
would include the copying of documents.\5\ In order for GAO to
effectively carry out its statutory responsibilities, it is
necessary for GAO to make and retain copies of such records. At
times, however, GAO has found its audit, evaluation, and
investigative efforts frustrated and delayed by agencies that
insist that GAO review records only on site, without making
copies, even in situations that do not involve sensitive
information or any other practical justifications for denying
GAO the ability to copy necessary records. Accordingly, S. 237
specifies that GAO has a right to make and retain copies of
records.
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\4\31 U.S.C. Sec. 716(a).
\5\See Westside Ford, Inc. v. United States, 206 F.2d 627, 634 (9th
Cir. 1953); Riley v. McGarry, 248 F. Supp. 545 (D. Mass. 1966).
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EXPANDING GAO'S AUTHORITY TO ADMINISTER OATHS
S. 237 further strengthens GAO's investigative powers by
expanding the Comptroller General's authority to administer
oaths. Presently, the Comptroller General may administer oaths
only ``when auditing and settling accounts.''\6\ When GAO was
established in 1921 as the General Accounting Office, its
principal focus was auditing accounts, but that is no longer
the case. Congress has since called upon the Comptroller
General to perform many other audit, investigative, and
evaluative roles. These roles periodically entail situations
involving potential fraud or attempts to defraud the United
States or irregularities or misconduct of an employee or agent
of the United States. The government has a critical interest in
obtaining truthful and complete testimony from those with whom
GAO speaks in the course of such investigations. Authorizing
GAO to administer oaths in such cases will ensure that those
talking to GAO fully understand the importance of truthful
testimony as well as the potential consequences to themselves
if they do not truthfully testify. When investigating such
matters, the ability to administer oaths can be an important
tool for the Comptroller General to accomplish GAO's work for
the Congress.
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\6\31 U.S.C. Sec. 711(4).
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GAO ACCESS TO SPECIFIC AGENCY RECORDS
Finally, S. 237 addresses longstanding problems GAO has
faced with certain Federal agencies that have resisted GAO
scrutiny. Four Federal agencies in particular have asserted
that the failure of their authorizing statutes specifically to
identify GAO as an approved recipient of documents acts as an
implicit exception to the broad authorization GAO's governing
statute gives it to obtain agency material. The bill makes
clear that GAO's governing statute trumps the agency-specific
ones, affirming GAO's existing right to access information at
the Department of Health and Human Services (HHS), the Food and
Drug Administration (FDA), the Federal Trade Commission (FTC),
and the Department of Justice (DOJ).
For example, HHS has construed the Social Security Act as
precluding GAO access to the National Directory of New Hires, a
database of employment information critical to investigations
of fraud in certain Social Security Act programs, because GAO
is not expressly listed as an authorized recipient of the data.
The new 31 U.S.C. Sec. 721(a) would prohibit HHS from denying
or limiting GAO's access to any material merely because
governing statutes do not expressly identify GAO as a recipient
of information or provide for its access to information,
thereby confirming GAO's existing statutory right of access in
these types of cases.
Similarly, the FDA has construed a provision of the Federal
Food, Drug, and Cosmetic Act to authorize it to disclose trade
secrets information to GAO only for studies requested by a
chair of a committee or subcommittee of jurisdiction, and only
when the requests specifically refer to GAO's need for trade
secrets information. FDA does not separate trade secrets
information from other information on regulated entities that
is needed for audits and investigations and, thus, according to
GAO, FDA's view has adversely affected GAO's access to a wide
range of information beyond trade secrets. Gaining access to
needed information has involved time-consuming procedural
steps, including the redaction of trade secrets information,
and substantial delays in GAO's work. The new section 721(b)
would remove any doubt as to GAO's authority to obtain trade
secrets information from the FDA, regardless of who initiated
the project for which GAO seeks the information.
The FTC and the DOJ have denied GAO information based on
their reading of the Hart-Scott-Rodino Act, which requires
companies to file information with the FTC and DOJ before
mergers and other transactions can be consummated. The FTC and
DOJ have routinely denied GAO access to pre-merger information
and argue that the Hart-Scott-Rodino Act and related case law
permit them to provide such information only to a Congressional
Committee or Subcommittee Chair. The Committee believes that
GAO already should have access to these pre-merger filings
under GAO's basic access authority, but the bill, by adding new
section 31 U.S.C. Sec. 721(c), makes GAO's authority to obtain
this information from the FTC and the DOJ indisputably clear.
The Committee recognizes GAO's exemplary record of
protecting the most sensitive information it routinely obtains
from agencies across government--ranging from highly classified
national security documents to taxpayer return information--and
the Committee is confident that GAO will rigorously maintain
the confidentiality of information obtained under these new
sections.
APPLICATION OF GAO AUTHORITIES TO JUDICIAL BRANCH
S. 237 responds primarily to long-standing problems GAO has
faced in its efforts to obtain information and material from
executive branch agencies. During the Committee's consideration
of the bill, the Judicial Conference of the United States
expressed concerns about how these authorities would apply to
it. It shared its view that the judicial branch has a unique
role, structure, operations, and mission different from that of
the executive branch. It believes that questions remain
regarding the appropriate process and procedures under which
GAO accesses and obtains certain information from the judicial
branch. Those questions are outside the immediate scope of this
bill. The Committee expects GAO, in consultation with the
Administrative Office of the U.S. Courts (AOUSC) and other
appropriate entities, to develop GAO protocols outlining the
procedures it will follow in future reviews relating to the
judicial branch. GAO and the AOUSC should inform this and other
relevant Committees when they have completed this effort and
whether they believe additional legislative action is
warranted.
III. Legislative History
Senators McCaskill and Collins introduced S. 237 on,
January 31, 2011. The bill was read twice and referred to the
Senate Committee on Homeland Security and Governmental Affairs.
Chairman Lieberman cosponsored the bill. As introduced, S. 237
was identical to S. 2991, as favorably reported by the
Committee in the 111th Congress.
The Committee considered S. 237 on October 19, 2011. The
Committee first adopted by voice vote an amendment to the bill
offered by Senator Coburn and then by voice vote ordered the
bill favorably reported as amended. Members present for both
votes were Senators Lieberman, Akaka, Carper, Pryor, McCaskill,
Begich, Collins, Brown, Johnson and Moran.
The amendment offered by Senator Coburn added a new section
to the bill requiring GAO to notify Congress if an agency does
not comply with a GAO request for information within 30 days
after receipt of the request.
IV. Section-by-Section Summary of the Bill
Section 1: Short title
The short title of the bill is the ``Government
Accountability Office Improvement Act of 2011.''
Section 2: Authority to obtain records
Section 2(a) amends 31 U.S.C. Sec. 716(a) to explicitly
reaffirm that Congress has authorized GAO to pursue civil
actions if Federal agencies withhold records from GAO.
Section 2(b) also amends 31 U.S.C. Sec. 716(a) to make
clear that the Comptroller General has the right not only to
inspect agency records, but also to make and retain copies of
such records.
Section 3: Administering oaths
Section 3 amends 31 U.S.C. Sec. 711 to modernize the
Comptroller General's authority, subject to appropriate
safeguards, to administer oaths to witnesses in specific types
of GAO investigations. Section 3 amends GAO's existing
authority to allow the Comptroller General to administer oaths
to witnesses when investigating fraud, attempts to defraud the
United States, or irregularities or misconduct by a Federal
employee or agent.
Section 4: Access to certain information
Section 4(a) adds a new statutory section, 31 U.S.C.
Sec. 721, which makes clear that the Social Security Act, the
Federal Food, Drug, and Cosmetic Act, and the Hart-Scott-Rodino
Act do not limit GAO's right of access to information.
New Section 721(a) confirms GAO's existing authority to
review information at the Department of Health and Human
Services, including the National Directory of New Hires.
New Section 721(b) confirms GAO's existing authority to
review trade secret information held by the Food and Drug
Administration.
New Section 721(c) confirms that GAO has the authority to
access pre-merger filing information with the Federal Trade
Commission and the Department of Justice.
New Section 721(d), in recognition of the sensitivity of
the information that agencies may provide to GAO, requires GAO
to prescribe policies and procedures necessary to protect
proprietary or trade secrets information from public
disclosure. It also states that it does not modify 18 U.S.C.
Sec. 1905, which prohibits the disclosure of trade secrets and
other sensitive information, or affect the applicability of 31
U.S.C. Sec. 716(e), which requires GAO to safeguard the
confidentiality of information and also protects against
unauthorized disclosure.
New Section 721(e) makes clear that the references to
specific statutory provisions in this section are not intended
to affect GAO's access to information under existing statutes
that are not specifically identified in the new section 721.
The Committee expects that agencies will treat situations
covered by the new section 721 and analogous situations not
expressly addressed in a similar manner, thus giving full
effect to GAO's existing right of access and facilitating
rather than impeding congressional oversight.
Section 5: Notice to Congress if agencies do not provide requested
information
This section adds a new statutory section, 31 U.S.C.
Sec. 722, which requires GAO to notify Congress if an agency
fails to respond within 30 days to a GAO request for
information. The new section requires that any notice of an
agency's failure to respond to a request for information should
be provided to any Committee(s) or Member(s) of Congress who
made a request to GAO that is relevant to the information
requested from the agency. The Committee anticipates that this
new notice requirement will provide an incentive for agencies
to provide requested information to GAO in a timely manner.
Section 6: Agency reports
This section amends 31 U.S.C. Sec. 720(b) to give agencies
more flexibility in reporting to Congress on their responses to
GAO recommendations. Currently, agencies must report two months
after issuance of a GAO report on ``action taken.'' This
provision allows the agency to report on actions ``planned'' or
taken in response to a GAO recommendation. In addition, the
section expands the list of recipients of an agency report to
include GAO and the congressional committees of jurisdiction
over the agency program or activity that is the subject of the
recommendation.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill. The Committee
agrees with the Congressional Budget Office that the bill
contains no intergovernmental or private sector mandates as
defined in the Unfunded Mandates Reform Act and would not
affect the budgets of state, local, or tribal governments. The
enactment of this legislation will not have significant
regulatory impact.
VI. Congressional Budget Office Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 27, 2011.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 237, the Government
Accountability Office Improvement Act of 2011.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 237--Government Accountability Office Improvement Act of 2011
S. 237 would provide additional authorities to the
Government Accountability Office (GAO), including the ability
to obtain certain records and information, and to administer
oaths. The legislation also would require GAO to establish
procedures to protect certain proprietary information that it
collects when carrying out its responsibilities and report on
agencies that do not provide information requested by GAO.
CBO expects that complying with the bill's provisions would
increase the administrative costs of the GAO. We estimate,
however, that implementing S. 237 would cost less than $500,000
annually, assuming the availability of appropriated funds.
Enacting the bill would not affect direct spending or revenues;
therefore, pay-as-you-go procedures do not apply.
S. 237 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was approved by Peter H. Fontaine,
Assistant Director for Budget Analysis.
VII. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the following changes in existing
law made by S. 237, as reported, are shown as follows (existing
law proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman).
TITLE 31--MONEY AND FINANCE
Subtitle I--General
CHAPTER 7--GOVERNMENT ACCOUNTABILITY OFFICE
Subchapter I--Definitions and General Organization
* * * * * * *
Section
701. Definitions
* * * * * * *
721. Access to certain information.
* * * * * * *
SEC. 711. GENERAL AUTHORITY.
The Comptroller General may--
(1) * * *
* * * * * * *
[(4) administer oaths to witnesses when auditing and
settling accounts.]
(4) administer oaths to witnesses when auditing and
settling accounts and, with the prior express approval
of the Comptroller General, when investigating fraud or
attempts to defraud the United States, or irregularity
or misconduct of an employee or agent of the United
States.
* * * * * * *
TITLE 31--MONEY AND FINANCE
Subtitle I--General
CHAPTER 7--GOVERNMENT ACCOUNTABILITY OFFICE
Subchapter II--General Duties and Powers
* * * * * * *
SEC. 716. AVAILABILITY OF INFORMATION AND INSPECTION OF RECORDS.
(a)(1) The Comptroller General is authorized to obtain such
agency records as the Comptroller General requires to discharge
his duties (including audit, evaluation, and investigative
duties), including through the bringing of civil actions under
this section. In reviewing a civil action in this section, the
court shall recognize the continuing force and effect of the
authorization in the preceding sentence until such time as the
authorization is repealed pursuant to law.
[(a)](2) Each agency shall give the Comptroller General
information the Comptroller General requires about the duties,
powers, activities, organization, and financial transactions of
the agency. The Comptroller General may [inspect an agency
record] inspect, and make and retain copies of, an agency
record to get the information. This subsection does not apply
to expenditures made under section 3524 or 3526(e) of this
title.
* * * * * * *
SEC. 720. AGENCY REPORTS.
(a) * * *
(b) When the Comptroller General makes a report that
includes a recommendation to the head of an agency, the head of
the agency shall submit a written statement on action taken or
planned on the recommendation by the head of the agency. The
statement shall be submitted to--
[(1) the Committee on Governmental Affairs of the
Senate and the Committee on Government Operations of
the House of Representatives before the 61st day after
the date of the report; and]
(1) the Committee on Homeland Security and
Governmental Affairs of the Senate, the Committee on
Oversight and Government Reform of the House of
Representatives, the congressional committees with
jurisdiction over the agency program or activity that
is the subject of the recommendation, and the
Government Accountability Office before the 61st day
after the date of the report; and
(2) the Committees on Appropriations of both Houses
of Congress in the first request for appropriations
submitted more than 60 days after the date of the
report.
* * * * * * *
SEC. 721. ACCESS TO CERTAIN INFORMATION.
(a) No provision of the Social Security Act, including
section 453(1) of that Act (42 U.S.C. 653(1)), shall be
construed to limit, amend or supersede the authority of the
Comptroller General to obtain any information or to inspect or
copy any record under section 716 of this title.
(b) No provision of the Federal, Food, Drug and Cosmetic
Act, including section 301(j) of that Act (21 U.S.C. 331(j)),
shall be construed to limit, amend, or supersede the authority
of the Comptroller General to obtain any information or to
inspect or copy any record under section 716 of this title.
(c) No provision of the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 (Public Law 94-435) and the amendments
made by that Act shall be construed to limit, amend, or
supersede the authority of the Comptroller General to obtain
any information or to inspect or copy any record under section
716 of this title, including with respect to any information
disclosed to the Assistant Attorney General of the Antitrust
Division of the Department of Justice or the Federal Trade
Commission for purposes of pre-merger review under section 7A
of the Clayton Act (15 U.S.C. 18a).
(d)(1) The Comptroller General shall prescribe such
policies and procedures as are necessary to protect from public
disclosure proprietary or trade secret information obtained
consistent with this section.
(2) Nothing in this section shall be construed--
(A) to alter or amend the prohibitions against the
disclosure of trade secret or other sensitive
information prohibited by section 1905 of title 18 and
other applicable laws; or
(B) to affect the applicability of section 716(e) of
this title, including the protections against
unauthorized disclosure contained in that section, to
information obtained consistent with this section.
(e) Specific references to statutes in this section shall
not be construed to affect access by the Government
Accountability Office to information under statutes that are
not so referenced.
SEC. 722. NOTICE TO CONGRESS IF AGENCIES DO NOT PROVIDE REQUESTED
INFORMATION.
If in the discharge of the official duties of the
Comptroller General (including any audit, evaluation, or
investigative duties) relating to any request from a committee
of Congress or a Member of Congress, the Comptroller General
requests information from an agency and the agency does not
provide that information within 30 days after the date of
receiving the request, the Comptroller General shall submit
notice that the agency has not provided the information to the
Comptroller General to--
(1) any committee of Congress that made the related
request to the Comptroller General; or
(2) any Member of Congress who made the related
request to the Comptroller General.