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[Senate Report 114-356]
[From the U.S. Government Publishing Office]

                                                     Calendar No. 638
114th Congress      }                          {              Report
                                 SENATE                               
  2d Session        }                          {              114-356
_______________________________________________________________________

                  GAO ACCESS AND OVERSIGHT ACT OF 2016

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 2849

 TO ENSURE THE GOVERNMENT ACCOUNTABILITY OFFICE HAS ADEQUATE ACCESS TO 
                              INFORMATION

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

               September 21, 2016.--Ordered to be printed
               
                                  ______
	       
	             U.S. GOVERNMENT PUBLISHING OFFICE 
	      
	  59-010              WASHINGTON : 2016 

               
               
               
               
               
               
               
               
               
               
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 THOMAS R. CARPER, Delaware
ROB PORTMAN, Ohio                    CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky                  JON TESTER, Montana
JAMES LANKFORD, Oklahoma             TAMMY BALDWIN, Wisconsin
MICHAEL B. ENZI, Wyoming             HEIDI HEITKAMP, North Dakota
KELLY AYOTTE, New Hampshire          CORY A. BOOKER, New Jersey
JONI ERNST, Iowa                     GARY C. PETERS, Michigan
BEN SASSE, Nebraska

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
       Patrick J. Bailey, Chief Counsel for Governmental Affairs
                Drew C. Baney, Professional Staff Member
              Gabrielle A. Batkin, Minority Staff Director
           John P. Kilvington, Minority Deputy Staff Director
               Mary Beth Schultz, Minority Chief Counsel
        Ellen W. Harrington, Minority Professional Staff Member
                     Laura W. Kilbride, Chief Clerk

                                                     Calendar No. 638
114th Congress      }                          {             Report
                                 SENATE                               
  2d Session        }                          {              114-356
======================================================================
 
                  GAO ACCESS AND OVERSIGHT ACT OF 2016

                                _______
                                

               September 21, 2016.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 2849]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 2849) to ensure the 
Government Accountability Office has adequate access to 
information, having considered the same, reports favorably 
thereon without amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................1
III. Legislative History..............................................3
 IV. Section-by-Section Analysis......................................4
  V. Evaluation of Regulatory Impact..................................4
 VI. Congressional Budget Office Cost Estimate........................4
VII. Changes in Existing Law Made by the Bill, as Reported............5

                         I. Purpose and Summary

    S. 2849, the GAO Access and Oversight Act of 2016, seeks to 
affirm the Government Accountability Office's (GAO) authority 
under current law to access Federal records by clarifying that 
GAO may access the National Directory of New Hires (NDNH). S. 
2849 also strengthens GAO's ability to bring a civil action in 
court when it is refused the information GAO needs to fulfill 
its oversight and investigation duties.

              II. Background and the Need for Legislation

    Congress relies on GAO to provide information and analysis 
through its audits, evaluations, and reports on the efficiency 
and effectiveness of the Federal Government.\1\ These reports 
help Congress and taxpayers determine if tax dollars are being 
spent efficiently and effectively or are subject to waste, 
fraud, and mismanagement. To execute the duties required of the 
agency, Congress in 1921 granted GAO statutory authority to 
access all Federal records required by the agency to complete 
its audits, evaluations, and reports.\2\ Further, to ensure GAO 
can obtain records from Federal agencies, Congress provided the 
Comptroller General the authority to bring a civil action 
against the head of an agency if he or she fails to produce the 
required documents.\3\
---------------------------------------------------------------------------
    \1\31 U.S.C. Sec. 717 (1982).
    \2\31 U.S.C. Sec. 716(a) (1980).
    \3\Id. at Sec. 716(b)(2).
---------------------------------------------------------------------------
    Due to differing interpretations of GAO's authority, S. 
2849 reaffirms Congress' intention to provide GAO with the 
authority to access Federal records required to complete the 
Comptroller General's duties and bring a civil action if 
needed.

Access to certain information

    S. 2849 addresses a recent issue GAO has had with the U.S. 
Department of Health and Human Services (HHS) regarding access 
to certain information.\4\ From the start, it was Congress' 
intent to invest GAO with robust investigative powers. Although 
the law currently provides that GAO has access to ``. . . 
information the Comptroller General requires about the duties, 
powers, activities, organization and financial transactions of 
the agency''\5\ HHS has declined to provide GAO access to the 
NDNH.\6\ The NDNH is a database that was created to ``assist 
state child support agencies locate noncustodial parents, 
putative fathers, and custodial parents to establish paternity 
and child support obligations, as well as to enforce and modify 
orders for child support, custody, and visitation'' by 
collecting information on new hires, quarterly wages, and 
unemployment insurance claims.\7\
---------------------------------------------------------------------------
    \4\Memorandum Opinion for the Acting General Counsel Department of 
Health and Human Services, Whether the Department of Health and Human 
Services May Provide the Government Accountability Office Access to 
Information in the National Directory of New Hires 1, available at 
https://www.justice.gov/sites/default/files/olc/opinions/attachments/
2016/03/18/2011-08-23-gao-access-ndnh.pdf [hereinafter HHS Memorandum].
    \5\31 U.S.C. Sec. 716(a).
    \6\HHS Memorandum, supra note 4.
    \7\Federal Parent Locator Service, A guide to the National 
Directory of New Hires 1, available at https://www.acf.hhs.gov/sites/
default/files/programs/css/a_guide_to_the_national_ 
directory_of_new_hires.pdf.
---------------------------------------------------------------------------
    Congress has authorized certain state and Federal agencies 
to access the NDNH for other purposes, including to improve the 
administration of several Federal means-tested programs 
including the Supplemental Nutrition Assistance Program (SNAP) 
benefits, unemployment compensation programs, and housing 
assistance programs.\8\ HHS maintains that since the NDNH 
authorizing statute does not explicitly list GAO as an 
authorized recipient of NDNH information, HHS is not obligated 
to permit GAO access.\9\
---------------------------------------------------------------------------
    \8\42 U.S.C. Sec. 653 (j)(7), (8), and (10).
    \9\HHS Memorandum, supra note 4.
---------------------------------------------------------------------------
    To address this conflict, S. 2849 creates a new section in 
GAO's authorizing statute that specifies that no section in the 
Social Security Act, including section 453(l) of that Act, 
shall be construed to deny or limit GAO's authority to access 
information under the bill. While the new section explicitly 
addresses access to the NDNH, it notes the singling out of 
access to the NDNH should not affect GAO's access to other 
information not explicitly mentioned.

Authority to bring civil action

    S. 2849 also addresses Walker v. Cheney, a judicial 
decision that clouded GAO's authority to compel Executive 
Branch agencies to produce required information.\10\ In 2002, 
then-Comptroller General David M. Walker sought to use the 
authority given to GAO by Congress to compel then-Vice 
President Richard Cheney to release documents relating to 
meetings of the National Energy Policy Development Group 
(NEPDG), a task force the Vice President chaired.\11\ While the 
U.S. District Court for the District of Columbia did not rule 
on GAO's statutory authority to conduct its study regarding the 
NEPDG or to obtain the records it was seeking, the court 
dismissed GAO's case stating the Comptroller General does not 
have standing to file the suit because there was no ``personal, 
concrete, and particularized injury.''\12\ Further, the court 
found that the statutory right and institutional injury claimed 
by the Comptroller General was insufficient because the 
Comptroller General acts as an agent of Congress, and as such, 
can only suffer the same injury as Congress.\13\ The court 
found Congress's injury to be ``too vague and amorphous to 
confer standing.''\14\
---------------------------------------------------------------------------
    \10\Walker v. Cheney, 230 F. Supp. 2d 51 (D.D.C. 2002).
    \11\Id. at 52.
    \12\Id. at 53.
    \13\Id. at 67.
    \14\Id.
---------------------------------------------------------------------------
    The decision in Walker v. Cheney undermines both GAO's 
authority to fulfill the oversight and investigative duties 
delegated to the agency by Congress, and Congress's 
constitutional authority to conduct and delegate oversight 
responsibilities as it sees fit. S. 2849 seeks to reaffirm and 
make explicit the Comptroller General's authority to bring a 
civil action without explicit Congressional approval to obtain 
agency records needed in the pursuit of GAO's oversight and 
investigation duties.
    It is this Committee's expectation that before pursuing 
such litigation, Comptroller Generals will--as Comptroller 
General Walker did prior to filing Walker v. Cheney--first 
exhaust other avenues that are available to obtain the 
information he or she is seeking. Should such attempts fail, 
however, this bill reaffirms the Comptroller General's ability 
to seek a judicial remedy to enforce GAO's right to information 
under the law.

                        III. Legislative History

    The GAO Access and Oversight Act of 2016, S. 2849, was 
introduced April 25, 2016, by Senator Ben Sasse (R-NE) and 
Senator Jon Tester (D-MT). The bill was referred to the 
Committee on Homeland Security and Governmental Affairs.
    The Committee considered S. 2849 at a business meeting on 
May 25, 2016. No amendments were offered. The Committee ordered 
the bill reported favorably en bloc by voice vote on May 25, 
2016. Senators present for the vote on the bill were Senators 
Johnson, Portman, Paul, Lankford, Ayotte, Ernst, Sasse, Carper, 
McCaskill, Tester, Baldwin, Heitkamp, Booker, and Peters.

        IV. Section-by-Section Analysis of the Bill, as Reported

Section 1. Short title

    This section establishes the short title of the bill as the 
``GAO Access and Oversight Act of 2016.''

Section 2. Access to certain information

    Subsection (a) clarifies GAO's authority to access Federal 
records, specifically noting that section 453(l) of the Social 
Security Act does not supersede this authority.
    Subsection (b) updates the requirement of agencies to 
notify Congress of action taken in response to recommendations 
from a GAO report, and clarifies which committees shall receive 
the written statement.
    Subsection (c) authorizes the GAO to obtain Federal records 
through the filing of a civil action in court.
    Subsection (d) makes a technical and conforming amendment.

                   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 and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                                     June 24, 2016.
Hon. Ron Johnson,
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. 2849, the GAO Access 
and Oversight Act of 2016.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

S. 2849--GAO Access and Oversight Act of 2016

    CBO estimates that enacting S. 2849 would have no 
significant effect on the federal budget. The legislation would 
amend federal law to clarify that the Government Accountability 
Office (GAO) has the authority to obtain certain records and 
information.
    Enacting the bill would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply. CBO 
estimates that enacting S. 2849 would not increase direct 
spending or on-budget deficits in any of the four consecutive 
10-year periods beginning in 2027.
    S. 2849 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 H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

       VII. Changes in Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 2849 as reported are shown as follows (existing law proposed 
to be omitted is enclosed in brackets, new matter is printed in 
italic, and existing law in which no change is proposed is 
shown in roman):

UNITED STATES CODE

           *       *       *       *       *       *       *

TITLE 31--BANKS AND BANKING

           *       *       *       *       *       *       *

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 the duties of the Comptroller General 
        (including audit, evaluation, and investigative 
        duties), including through the bringing of civil 
        actions under this section. In reviewing a civil action 
        under 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 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(l) of that Act (42 U.S.C. 653(l)), shall be 
construed to limit, amend, or supersede the authority of the 
Comptroller General to obtain any information or to inspect any 
record under section 716 of this title.
    (b) The specific reference to a statute in subsection (a) 
shall not be construed to affect access by the Government 
Accountability Office to information under statutes that are 
not so referenced.

                                  [all]
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