U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

1 

59–010 

" ! SENATE 

114TH CONGRESS

2d Session 

REPORT

2016

114–356 

Calendar No. 638 

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 

SEPTEMBER 21, 2016.—Ordered to be printed 


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(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MICHAEL B. ENZI, Wyoming 

KELLY AYOTTE, New Hampshire 

JONI ERNST, Iowa 

BEN SASSE, Nebraska 

THOMAS R. CARPER, Delaware 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

TAMMY BALDWIN, Wisconsin 

HEIDI HEITKAMP, North Dakota 

CORY A. BOOKER, New Jersey 

GARY C. PETERS, Michigan 

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 


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Calendar No. 638 

114TH CONGRESS SENATE REPORT " ! 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 


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1 31 U.S.C. § 717 (1982). 

2 31 U.S.C. § 716(a) (1980). 

3 Id. at § 716(b)(2). 4Memorandum 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-gaoaccess-ndnh.pdf [hereinafter HHS Memorandum]. 5 31 U.S.C. § 716(a). 

6 HHS Memorandum, supra note 4. 7Federal 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/alguideltolthelnationall directoryloflnewlhires.pdf. 8 42 U.S.C. § 653 (j)(7), (8), and (10). 

9 HHS Memorandum, supra note 4. 

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

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

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

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 


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10Walker 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. 

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

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. 


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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 onbudget deficits in any of the four consecutive 10-year periods beginning in 2027. 


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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. 

ø(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) * * * 


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(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— 

ø(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. 

Æ 


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