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
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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
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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
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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.
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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
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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
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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)