Calendar No. 646
111th Congress
SENATE
Report
2d Session 111-350
======================================================================
GOVERNMENT ACCOUNTABILITY OFFICE IMPROVEMENT ACT OF 2010
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 2991
TO AMEND TITLE 31, UNITED STATES CODE, TO ENHANCE THE OVERSIGHT
AUTHORITIES OF THE COMPTROLLER GENERAL, AND FOR OTHER PURPOSES
November 18, 2010.--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 GEORGE V. VOINOVICH, Ohio
CLAIRE McCASKILL, Missouri JOHN ENSIGN, Nevada
JON TESTER, Montana LINDSEY GRAHAM, South Carolina
ROLAND W. BURRIS, Illinois
CHRISTOPHER A. COONS, Delaware
Michael L. Alexander, Staff Director
Kevin J. Landy, Chief Counsel
Jonathan M. Kraden, Counsel
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Lisa M. Nieman, Minority Counsel
Trina Driessnack Tyrer, Chief Clerk
C O N T E N T S
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................5
IV. Section-by-Section Analysis......................................5
V. Regulatory Impact and Evaluation.................................6
VI. Congressional Budget Office Cost Estimate........................7
VII. Changes in Existing Law Made by the Bill, as Reported............7
Calendar No. 646
111th Congress
SENATE
Report
2d Session 111-350
======================================================================
GOVERNMENT ACCOUNTABILITY OFFICE IMPROVEMENT ACT OF 2010
_______
November 18, 2010.--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. 2991]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 2991) 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 an
amendment in the nature of a substitute, and recommends that
the bill, as amended, do pass.
I. Purpose and Summary
S. 2991, the Government Accountability Office Improvement
Act of 2010, responds to several efforts in recent years to
curtail the authority of the Government Accountability Office
(GAO), a legislative branch agency that serves as Congress'
investigative arm. The bill both confirms and enhances GAO's
investigative powers by making 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. 2991 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
Congress relies on GAO in carrying out the investigative
and oversight functions vested in the legislative branch. The
GAO helps inform the Congress, executive agencies, and the
public about areas and programs within the federal government
that are performing well, and those that need to be improved or
are vulnerable to waste, fraud, abuse, and mismanagement. GAO's
audits provide reliable assessments as to whether the taxpayers
are receiving full value from important government programs.
To carry out this role, GAO has had a long-standing
statutory right of access to information and records in the
possession of federal agencies. Although many access disputes
are long-standing, several recent efforts by the executive
branch to withhold information from GAO highlight how Congress'
ability to legislate effectively, conduct meaningful oversight,
and audit the use of appropriated funds can be impeded when GAO
is denied information. S. 2991 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.
S. 2991 also responds to a judicial decision that
questioned 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 litigation arising from GAO's
efforts to obtain information about the operations of former
Vice President Cheney's energy task force, the U.S. District
Court for the District of Columbia held that the Comptroller
General lacked standing to enforce GAO's right to
information.\3\ S. 2991 makes clear that, contrary to the
Court's decision, the Comptroller General has standing to
pursue such cases. Specifically, S. 2991 makes clear that the
Comptroller General is authorized to obtain agency records
necessary to discharge his audit, evaluation, and investigative
duties on behalf of Congress. 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.
Thus, the bill definitively reaffirms the Comptroller General's
authority to bring civil actions, as necessary, to obtain
agency records required to discharge his duties.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
The decision in Walker v. Cheney is inconsistent with the
Comptroller General's role and responsibility set forth in
GAO's statute and congressional intent. 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. For these reasons, S.
2991 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.
S. 2991 also reaffirms that GAO not only has the statutory
right 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. 2991
specifies that GAO has a right to make and retain copies of
records.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
S. 2991 further strengthens GAO's authorities by expanding
the Comptroller General's authority to administer oaths.
Presently, the Comptroller General is authorized to 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. In such situations, the ability to
administer oaths can be an important tool for the Comptroller
General to accomplish GAO's work for the Congress.
---------------------------------------------------------------------------
\6\31 U.S.C. Sec. 711(4).
---------------------------------------------------------------------------
S. 2991 also addresses longstanding problems GAO has faced
with certain federal agencies that have resisted GAO scrutiny.
The bill makes clear 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). Despite arguments
to the contrary, GAO has rightful access to information from
these agencies, including in certain contested circumstances.
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.
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 under the Hart-Scott-Rodino Act and related case
law they can provide such information only to a Committee or
Subcommittee Chair. The Hart-Scott-Rodino Act exempts from
public disclosure, under the Freedom of Information Act (FOIA),
the pre-merger materials required to be filed with the FTC and
the Department of Justice. FOIA does not apply to GAO, however,
so GAO has access to these pre-merger filings under GAO's basic
access authority. The new section 721(c) makes clear that GAO
has the authority to obtain this information from the FTC and
the DOJ.
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.
Finally, the Committee notes that S. 2991 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 were 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
On February 4, 2010, Senators McCaskill and Collins
introduced S. 2991, which was read twice and referred to the
Senate Committee on Homeland Security and Governmental Affairs.
The Committee considered the bill on July 28, 2010. The
Committee adopted, by voice vote, a substitute amendment
offered by Senators McCaskill and Collins and then ordered the
bill favorably reported, also by voice vote. Members present
for the votes on the substitute amendment and on the bill were
Senators Lieberman, Levin, Akaka, Carper, Pryor, Landrieu,
McCaskill, Tester, Kaufman, Collins, and McCain.
The substitute amendment makes four significant changes to
the original bill. First, the substitute clarifies GAO's
existing authority to access information by specifically
stating that three particular statutes under which agencies
have routinely denied GAO access do not limit GAO's authority
to obtain records and information. These statutes are: (1) the
Social Security Act; (2) the Federal Food, Drug and Cosmetic
Act; and (3) the Hart-Scott-Rodino Antitrust Improvements Act
of 1976. Second, the substitute amendment adds a requirement
that GAO prescribe policies and procedures for the protection
from public disclosure of proprietary or trade secret
information. Third, the substitute amendment strikes the
language in the bill as introduced allowing for interviews of
agency employees. Lastly, the substitute substantially narrowed
a provision in the bill as introduced regarding GAO's authority
to administer oaths to witnesses. Under the new provision, GAO
may administer oaths only if the Comptroller General gives
prior and express approval and only if the testimony is in the
course of specific types of investigations. The new language is
modeled on the authority available to executive departments
under 5 U.S.C. Sec. 303, which allows lawfully assigned
investigators to administer an oath to a witness who is
testifying or being deposed in the course of an investigation
into fraud or employee misconduct or irregularity.\7\
---------------------------------------------------------------------------
\7\5 U.S.C. Sec. 303.
---------------------------------------------------------------------------
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 2010.''
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 improperly withhold records from
GAO.
Section 2(b) also amends 31 U.S.C. Sec. 716(a) to make
clear that the Comptroller General has not only the right 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 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.
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.
Section 721(b) confirms GAO's existing authority to review
trade secret information held by the Food and Drug
Administration.
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.
In recognition of the sensitivity of the information that
agencies may provide to GAO, new section 721(d) 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: Agency reports
This section amends 31 U.S.C. Sec. 720(b) to allow an
agency more flexibility in reporting to Congress on its
response to a GAO recommendation. 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. Regulatory Impact and Evaluation
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
Congressional Budget Office states that the bill contains no
intergovernmental or private sector mandates as defined in the
Unfunded Mandate 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
August 5, 2010.
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. 2991, the Government
Accountability Office Improvement Act of 2010.
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. 2991--Government Accountability Office Improvement Act of 2010
S. 2991 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.
CBO estimates that implementing the legislation would have
no significant impact on the federal budget. Enacting the bill
would not affect direct spending or revenues; therefore, pay-
as-you-go procedures do not apply.
S. 2991 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.
On June 9, 2009, CBO transmitted a cost estimate for H.R.
2646, the Government Accountability Office Improvement Act of
2009, as ordered reported by the House Committee on Oversight
and Government Reform on June 4, 2009. The two pieces of
legislation and CBO's cost estimates are similar.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was approved by Theresa Gullo, Deputy
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. 2991, 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.
* * * * * * *
SECTION 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
* * * * * * *
SECTION 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.
* * * * * * *
SECTION 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.
* * * * * * *
SECTION 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.
