United States Government Accountability Office

GAO Testimony before the Subcommittee on 

Management, Investigations and 

Oversight, Committee on Homeland 

Security, House of Representatives

DEPARTMENT OF 

HOMELAND SECURITY 

Observations on GAO 

Access to Information on 

Programs and Activities 

Statement of Norman Rabkin, Managing Director 

Homeland Security and Justice Issues 

For Release on Delivery

Expected at 10:00 a.m. EDT 

Wednesday, April 25, 2007

 

GAO--07-700T 
GAO's Views

United States Government Accountability Office

Why GAO Prepared This 

Statement

Highlights

Accountability Integrity Reliability

April 25, 2007

DEPARTMENT OF HOMELAND SECURITY

Observations on GAO Access to 

Highlights of GAO-07-700T, a testimony Information on Programs and Activities

before the Subcommittee on 

Management, Investigations and 

Oversight, Committee on Homeland 

Security, House of Representatives 

In testimony before this committee

and the House Committee on 

Appropriations, Subcommittee on 

Homeland Security in February

2007, GAO stated that the

Department of Homeland Security

(DHS) has not made its

management or operational 

decisions transparent enough to

allow Congress to be sure that the 

Department is effectively, 

efficiently, and economically using 

its billions of dollars of annual

funding. GAO also noted that its 

work for Congress to assess DHS’s 

operations has, at times, been 

significantly hampered by long

delays in obtaining access to 

program documents. Following the

aforementioned testimonies, GAO 

was asked to testify about its 

access issues. 

This testimony provides

information on (1) the scope of

GAO’s work, (2) GAO protocols for

accessing agency information, 

(3) DHS processes for working 

with GAO, (4) access issues GAO 

has encountered, and (5) steps 

GAO has taken to address these

issues. 

This testimony identifies issues

that Congress and DHS may wish

to give attention so that DHS may 

provided GAO timely access to 

information needed to carry out its 

statutory responsibilities. 

To carry out its audit and evaluation authorities, GAO has a broad statutory 

right of access to agency records. Auditing standards require that analysts

and financial auditors promptly obtain sufficient, competent, and relevant 

evidence to provide a reasonable basis for any related findings and 

conclusions. Therefore, prompt access to all records and other information 

associated with these activities is needed for the effective and efficient 

performance of GAO’s work. This is also necessary in order for the Congress

to be able to conduct its constitutional responsibilities in a timely and 

effective manner. 

Since DHS began operations in 2003, GAO has provided major analyses of 

the department’s plans and programs for transportation security, 

immigration, Coast Guard, and emergency management. GAO has also 

reported on DHS’s management functions such as human capital, financial 

management, and information technology. 

GAO has processes it applies in working with departmental agencies across 

the federal government that work well. DHS’s adopted processes have 

frequently impeded GAO’s efforts to carry out its mission by delaying access 

to documents required to assess the department’s operations. This process 

involves multiple layers of review by department- and component-level 

liaisons and attorneys and results in frequent and sometimes lengthy delays

in obtaining information. 

GAO recognizes that the department has legitimate interests in protecting 

certain types of sensitive information from public disclosure. GAO shares 

that interest as well and follows strict security guidelines in handling such 

information. GAO similarly recognizes that agency officials will need to 

make judgments with respect to the manner and the processes they use in 

response to GAO’s information requests. However, to date, because of the 

processes adopted to make these judgments, GAO has often not been able to 

do its work in a timely manner. GAO has been able to eventually obtain 

information and answer audit questions, but the delays experienced at DHS 

impede GAO’s ability to conduct audit work efficiently and to provide timely 

information to congressional clients. 

DHS process for working with GAO. 

GAO requests for interviews and documents

DHS departmental liaison

Component coordinator

Program officials

DHS Assistant General Counsel

Component counsel

Source: GAO analysis of DHS Directive # 820.

www.gao.gov/cgi-bin/getrpt?GAO-07-700T.

To view the full product, including the scope 

and methodology, click on the link above. 

For more information, contact Norman J. 

Rabkin, at (202) 512-8777 or 

rabkinn@gao.gov. 
Mr. Chairman and Members of the Subcommittee: 

I am pleased to be here to discuss the subject of access by the Government 

Accountability Office to information at the Department of Homeland 

Security (DHS). My statement will provide information on the scope of our 

work, our protocols regarding how we normally get access to agency

information, DHS processes for responding to our requests, access issues 

we have encountered at DHS, and, finally, steps we have taken to address 

these issues. 

GAO’s mission is to support Congress in meeting its constitutional 

responsibilities and to help improve the performance and ensure the 

accountability of the federal government for the benefit of the American 

people. Since DHS began operations in 2003, we have provided major 

analyses of the department’s plans and programs for transportation 

security, immigration, Coast Guard, and emergency management. We have 

also reported on DHS’s management functions such as human capital, 

financial management, and information technology. 

Summary 

We have processes for obtaining information from departments and 

agencies across the federal government that work well. DHS’s adopted 

processes do not work as smoothly. DHS’s processes have impeded our 

efforts to carry out our mission by delaying access to documents that we 

require to assess the department’s operations. This process involves 

multiple layers of review by department- and component-level liaisons and 

attorneys regarding whether to provide us the requested information. 

We have occasionally worked with DHS management to establish a 

cooperative process—for example, reviewing sensitive documents at a 

particular agency location. We have agreed to these types of 

accommodations for accessing information under certain circumstances 

because we believe that doing so allows us not only to maintain a 

productive working relationship with the department but also to meet the 

needs of our congressional requesters in a timely manner. Further, such a 

relationship enables us to present the progress and challenges of the 

department in a clear and impartial manner, so that we can meet our 

shared objectives of improving our nation’s security preparedness. 

We recognize that the department has legitimate interests in protecting 

certain types of sensitive information from public disclosure. We share 

that interest as well and follow strict security guidelines in handling such 

information. We similarly recognize that agency officials will need to make 

Page 1 GAO--07-700T 
judgments with respect to the manner and the processes they use in 

response to our information requests. However, to date, because of the 

processes adopted to make these judgments, GAO has often not been able 

to do its work in a timely manner. We have been able to eventually obtain 

information and to answer audit questions, but the delays we have 

experienced at DHS have impeded our ability to conduct audit work 

efficiently and to provide timely information to congressional clients. 

GAO has broad statutory authority under title 31 of the United States Code

to audit and evaluate agency financial transactions, programs, and 

activities.1

 To carry out these audit and evaluation authorities, GAO has a 

broad statutory right of access to agency records. Using the authority 

granted under title 31, we perform a range of work to support Congress 

that, among other things, includes the following: 

GAO Performs a 

Broad Range of Work 

for Congress 

• Evaluations of federal programs, policies, operations, and 

performance: 

• For example, evaluations of transportation security programs 

related to passenger-screening operations at airports, our work 

to assess enforcement of immigration laws, and our work on the 

U.S. Coast Guard’s Deepwater acquisition to replace its aging

fleet. 

• Management and financial audits to determine whether public funds 

are being spent efficiently, effectively, and in accordance with 

applicable laws: 

• For example, DHS’s appropriations acts for fiscal years 2002 

through 2006 have mandated that we review expenditure plans 

for the U.S. Visitor and Immigrant Status Indicator Technology 

(U.S.VISIT) program. 

• Investigations to assess whether illegal or improper activities may 

have occurred: 

• For example, we investigated the Federal Emergency 

Management Agency’s (FEMA) Individuals and Households 

Program to determine the vulnerability of the program to fraud 

and abuse in the wake of Hurricanes Katrina and Rita. 

• Constructive engagements in which we work proactively with 

agencies, when appropriate, to help guide their efforts toward 

transformation and achieving positive results: 

 1

See appendix I for more information on key GAO audit and access authorities. 

Page 2 GAO--07-700T 
• For example, we have worked to establish such an arrangement 

with the Transportation Security Administration (TSA) on its 

design and implementation of the Secure Flight Program for 

passenger pre-screening for domestic flights whereby we could 

review documents on system development as they were being 

formulated and provide TSA with our preliminary observations 

for its consideration. Congress mandated TSA certify that the 

design and implementation of the program would meet 

10 specific criteria. Congress also mandated that we review 

and comment on TSA’s certification. TSA’s certification has 

not yet occurred. 

We carry out most of our work in accordance with generally accepted 

government auditing standards.2

 Our analysts and financial auditors are 

responsible for planning, conducting, and reporting their work in a timely 

manner without internal or external impairments. These standards require 

that analysts and financial auditors promptly obtain sufficient, competent,

and relevant evidence to provide a reasonable basis for any related 

findings and conclusions. Therefore, prompt access to all records and 

other information associated with these activities is needed for the 

effective and efficient performance of our work. 

Auditing Standards 

and Our Protocols 

Address Accessing 

Information 

Our work involves different collection approaches to meet the evidence

requirements of generally accepted government auditing standards. Such 

evidence falls into four categories: 

• physical (the results of direct inspection or observation); 

• documentary (information created by and for an agency, such as 

letters, memorandums, contracts, management and accounting 

records, and other documents in various formats, including electronic 

databases); 

• testimonial (the results of face-to-face, telephone, or written inquiries, 

interviews, and questionnaires); and

• analytical (developed by or for GAO through computations, data 

comparisons, and other analyses). 

 2

GAO, Government Auditing Standards, 2003 Revision, GAO-03-673G (Washington, D.C.; 

June 2003). 

Page 3 GAO--07-700T 
We have promulgated protocols describing how we will interact with the 

agencies we audit.3

 We expect that agencies will promptly comply with our 

requests for all categories of needed information. We also expect that we 

will receive full and timely access to agency officials who have 

stewardship over the requested records; to agency employees responsible 

for the programs, issues, events, operations, and other factors covered by

such records; and to contractor personnel supporting such programs, 

issues, events, and operations. In addition, we expect that we will have 

timely access to an agency’s facilities and other relevant locations while 

trying to minimize interruptions to an agency’s operations when 

conducting work related to requests for information. 

We provide an appropriate level of security to information obtained during 

the course of our work. We are statutorily required to maintain the same 

level of confidentiality of information as is required of the agency from 

which it is received, and we take very seriously our obligation to safeguard 

the wide range of sensitive information we routinely receive. For example, 

we ensure that GAO employees have appropriate security clearances to 

access information. We also have well-established security policies and 

procedures. 

Timely access to information, facilities, and other relevant locations is in 

the best interests of both GAO and the agencies. We need to efficiently use 

the time available to complete our work to minimize the impact on the 

agency being reviewed and to meet the time frames of our congressional 

clients. Therefore, we expect that an agency’s leadership and internal 

procedures will recognize the importance of and support prompt 

responses to our requests for information. When we believe that delays in

obtaining requested access significantly impede our work, we contact the 

agency’s leadership for resolution and notify our congressional clients, as 

appropriate.

 3

GAO, GAO Agency Protocols, GAO-05-35G (Washington, D.C.; Oct. 21, 2004). 

Page 4 GAO--07-700T 
Unlike those of many other executive agencies, DHS’s processes for 

working with us includes extensive coordination among program officials, 

liaisons, and attorneys at the departmental and component levels and 

centralized control for all incoming GAO requests for information and 

outgoing documents. In an April 2004 directive on GAO relations, DHS 

established a department liaison to manage its relationship with us. In 

addition, DHS has a GAO coordinator within all of its components and, 

within the DHS General Counsel Office, an Assistant General Counsel for 

General Law who provides advice on GAO relations. According to the 

directive, the department liaison (1) receives and coordinates all GAO 

notifications of new work, (2) participates in all entrance conferences, and

(3) notifies the Assistant General Counsel of new work to obtain 

participation of counsel. The directive requires the Assistant General 

Counsel to participate in all entrance meetings to ensure that the scope of 

any request is clear and finite, and that mutual obligations between DHS 

and GAO are met. The component coordinator handles all matters 

involving GAO for the component, generally participates in GAO entrance 

meetings, and seeks advice of component’s counsel, as appropriate. 

DHS Has 

Implemented 

Burdensome 

Processes for 

Working with GAO 

The following figure illustrates the coordination of information among 

DHS officials described above when we make a request for information. 

Typically when we begin an engagement, we send a letter to the 

department liaison to notify DHS that we are starting a new engagement 

and we request an entrance meeting to discuss the work. During the 

course of our review, we provide written requests for meetings and 

documents to component coordinators using a DHS-prescribed form. The 

component coordinators then forward our requests to program officials 

and consult with component counsel, who may consult with the Assistant 

General Counsel. 

Page 5 GAO--07-700T 
Figure 1. DHS Process for Working with GAO.

GAO requests for interviews

and documents

DHS departmental liaison

Component coordinator

Program officials

DHS Assistant General Counsel

Component counsel

Source: GAO analysis of DHS Directive # 820.

In a memo that transmitted the above directive to senior managers in DHS 

components, the then-Under Secretary for Management emphasized the 

importance of a positive working relationship between the two agencies. 

The memo stated that failure to meet or brief GAO staffs in a timely 

manner, as well as being viewed as nonresponsive to GAO document 

requests, could result in tense and acrimonious interactions. The Under 

Secretary also reminded senior officials that prompt and professional 

discharge of their responsibilities to GAO requests could affect both DHS’s 

funding and restrictions attached to that funding.

Page 6 GAO--07-700T 
In testimony before this committee and the House Committee on 

Appropriations, Subcommittee on Homeland Security in February 2007,

we stated that DHS has not made its management or operational decisions 

transparent enough to allow Congress to be sure that the department is 

effectively, efficiently, and economically using its billions of dollars of 

annual funding.4

 We also noted that our work for Congress to assess 

DHS’s operations has been significantly hampered by long delays in 

obtaining access to program documents and officials. We emphasized that 

for Congress, GAO, and others to independently assess the department’s 

efforts, DHS would need to become more transparent and minimize 

recurring delays in providing access to information on its programs and 

operations. 

GAO Has 

Experienced 

Difficulties Accessing 

DHS Information 

At most federal agencies and in some cases within DHS, we obtain the 

information we need directly from program officials, often on the spot or 

very soon after making the request. For example, our work on the Secure 

Border Initiative (SBI) has so far met with a very welcome degree of 

access to both DHS officials and documents. SBI is a comprehensive 

multiyear program established in November 2005 to secure U.S. borders 

and reduce illegal immigration. One element of SBI is SBInet, the program 

within the U.S. Customs and Border Protection (CBP) responsible for 

developing a comprehensive border protection system of tactical 

infrastructure, rapid response capability, and technology. The fiscal year 

2007 Department of Homeland Security Appropriations Act required that, 

before DHS could obligate $950 million of the $1.2 billion appropriated for 

SBInet, it had to prepare a plan for expending these funds, have it 

reviewed by GAO, and then submit it to Congress for approval.

5

 The plan

was to be submitted within 60 days of the act’s passage. 

CBP officials provided us office space at CBP headquarters, gave us access 

to all levels of SBInet management, and promptly provided us with all the 

documentation we requested, much of which was still in draft form and 

predecisional. DHS met the 60-day requirement when it submitted its plan 

to the Appropriations Committees on December 4, 2006. We met our 

responsibilities by being able to review the plan as it developed over the 

 4

GAO, Homeland Security: Management and Programmatic Challenges Facing the 

Department of Homeland Security, GAO-07-398T (Washington, D.C.: Feb. 6, 2007); and

GAO, Homeland Security: Management and Programmatic Challenges Facing the 

Department of Homeland Security, GAO-07-452T (Washington, D.C.: Feb. 7, 2007).

5

Pub. L. No. 109-295, 120 Stat. 1355 (2006). 

Page 7 GAO--07-700T 
60-day period, and to provide the results of our review to the House and 

Senate Appropriations Committees on December 7 and 13, 2006, 

respectively.

In contrast to the access we were afforded in the above example, the 

process used in most of our interactions with DHS is layered and timeconsuming. As discussed earlier, we are asked to submit each request for 

documents to the component coordinator rather than directly to program 

officials even if we have already met with these officials. Also as 

mentioned earlier, the component coordinator often refers our request to 

component counsel. And the Assistant General Counsel for General Law in

DHS’s General Counsel’s office may become involved. The result is that we 

often wait for months for information that in many cases could be 

provided immediately. In some cases, DHS does not furnish information 

until our review is nearly finished, greatly impeding our ability to provide a 

full and timely perspective on the program under review. 

Each access issue with DHS requires that we make numerous and 

repetitive follow-up inquiries. Sometimes, despite GAO’s right of access to 

information, DHS delays providing information as it vets concerns 

internally, such as whether the information is considered deliberative or 

predecisional. At other times, we experience delays without DHS 

expressing either a concern or a cause for the delays. On other occasions, 

DHS is unable to tell us when we might obtain requested information or 

even if we will obtain it. 

We have encountered access issues in numerous engagements, and the 

lengths of delay are both varied and significant and have affected our 

ability to do our work in a timely manner. We have experienced delays 

with DHS components that include CBP, U.S. Immigration and Customs 

Enforcement (ICE), FEMA, and TSA on different types of work such as 

information sharing, immigration, emergency preparedness in primary and 

secondary schools, and accounting systems. I have examples of two 

engagements to share with you today that illustrate the types of delays we 

experience and how they have affected the timing of our work. 

My first example is of an engagement related to detention standards for 

aliens in custody, where the team working on this engagement

experienced delays of up to 5 months in obtaining various documents. The 

objective of this work, which is still under way and is being done for the 

House Committee on Homeland Security, is to assess ICE efforts to review 

facilities that house alien detainees, determine whether the facilities have 

complied with DHS standards, and determine the extent that complaints 

Page 8 GAO--07-700T 
have been filed about conditions in the facilities. Some of the facilities are 

owned and operated by DHS; others are operated under contract with 

DHS. In order to determine the extent to which facilities are complying 

with DHS standards, we requested that ICE provide copies of the reports 

of inspections it conducted in 2006 at 23 detention facilities. We requested 

those reports in December 2006 and did not receive the final four of the 

inspection reports until just last week, after DHS departmental 

intervention. We had several meetings and discussions with DHS officials 

including program officials, liaisons, and attorneys, and we were never 

provided a satisfactory answer about the reason for this 5-month delay. We 

also experienced delays on this engagement obtaining a copy of the 

contract for detainee phone services between ICE and the phone service 

contractor. DHS took 1 month to provide the contract and redacted almost 

the entire document because a DHS attorney contended the information 

was “privileged.” We followed up with DHS officials to communicate that 

our authority provided for access to this type of information and then 

waited another 2 weeks before we were able to get an unredacted copy of

the contract.

In another engagement being done at the request of the then-Chairman of 

the House Committee on Government Reform, we are reviewing an 

emergency preparedness exercise that DHS conducted in June 2006 called 

Forward Challenge 06. The purpose of the exercise was to allow agencies

to activate their continuity of operations plans, deploy essential personnel 

to an alternate site, and perform essential functions as a means of 

assessing their mission readiness. Our objective is to determine the extent 

to which participating agencies were testing the procedures, personnel, 

and resources necessary to perform essential functions in their continuityof-operations plans during the exercise. We began our work a few months 

before the exercise and had arranged with DHS to observe the actual 

exercise. However, 2 days before its start, DHS officials told us we would 

not be permitted to observe the exercise and stated that after completion, 

they would instead brief us on the exercise and the lessons they had

learned from it. They provided that briefing in August 2006, at which time 

we requested relevant documentation to support the claims the DHS 

officials made to us. 

Subsequently, in November 2006, DHS provided us with one-third of the 

agency after-action reports we requested but redacted key information, 

including the identity of the participating agencies. DHS, however, was 

reluctant to provide us with the balance of the documents requested, 

stating that it considered these to be “deliberative materials” and 

expressing concern that sharing these with us would have a significant and 

Page 9 GAO--07-700T 
negative impact on participants’ level of openness in future exercises. 

Despite GAO’s right of access to the information, the involvement of GAO 

and DHS officials at the highest level, and a letter of support from the 

former and current chairman of the committee, we did not receive access 

to the requested documentation until March 2007. Our report for this 

engagement was to be issued in November 2006; because we did not 

receive the needed information until March 2007, we will not be able to 

issue our analysis until later this year. 

We have made good faith efforts to resolve access issues. Specifically, we 

have undertaken many steps to work with DHS to resolve delays as 

expeditiously as possible and gain access to information needed for our 

work. At our audit team level we have asked staff to set reasonable time 

frames for requesting DHS to provide information and arrange for meeting 

and when we encounter resistance, to ensure that the information we 

request is critical to satisfying the audit objectives. When delays occur, our 

approach is to involve various management levels at both GAO and DHS, 

beginning with lower-level managers and working up to the Comptroller 

General and the Secretary. At each level, our managers and legal staff 

contact their counterpart liaisons and counsel, component heads, or DHS 

senior managers, as appropriate, either by telephone, e-mail, or letter, to 

communicate our access authority and need for the information to satisfy 

audit objectives. Our communication efforts have generally resulted in 

obtaining the requested or alternative information, or making other 

accommodations. 

GAO Has Taken and 

Suggested Steps to 

Resolve Access Issues 

with DHS 

We have proposed to DHS that the department take several steps that 

would enhance the efficiency of its process. First, our staff should be able 

to deal directly with program officials after we have held our initial 

entrance conference. If these officials have concerns about providing us 

requested information, they can involve DHS liaison or coordinators. 

Second, to the extent that DHS counsel finds it necessary to screen certain 

sensitive documents, it should do so on an exception basis. Other 

documents should be provided directly to us without prior review or 

approval by counsel. We provide DHS several opportunities to learn how 

we are using the information its officials provide us—we provide routine 

updates on our work to program officials; we provide program officials, 

liaisons, and counsel a “statement of facts” that basically describes what 

we learned during the engagement; and we formally provide DHS a copy of 

our draft report that contains our evidence, conclusions, and 

recommendations for its comment. There is no reason to hold information 

back from us when it has been made available to contractors, other federal 

Page 10 GAO--07-700T 
agencies, state and local governments, or the public, or when its only 

sensitivity is that DHS considers it confidential or classified. The Secretary

of DHS and the Under Secretary for Management have stated their desire 

to work with us to resolve access issues. We are willing to work with DHS 

to resolve any access-related concerns. Nevertheless, we remain troubled 

that the design and implementation of the current DHS process is 

routinely causing unnecessary delays. 

Mr. Chairman, this completes my prepared statement. I would be happy to

respond to any questions your or other members of the subcommittee may 

have at this time. 

For further information about this statement, please contact Norman J. 

Rabkin, Managing Director, Homeland Security and Justice Issues, on 

(202) 512-8777 or rabkinn@gao.gov. 

Contact Information 

Individuals making key contributions to this testimony include Linda 

Watson, John Vocino, Jan Montgomery, Geoff Hamilton and Richard 

Ascarate. 

Page 11 GAO--07-700T 
Page 12 GAO--07-700T 

Appendix I: Key GAO Audit and Access 

Authorities 

GAO has broad statutory authority under title 31 of the United States Code

to audit and evaluate agency financial transactions, programs, and 

activities. Under 31 U.S.C. § 712, GAO has authority to investigate all 

matters related to the receipt, disbursement, and use of public money. 

Section 717 of title 31, U.S.C., authorizes GAO to evaluate the results of 

programs and activities of federal agencies, on GAO’s own initiative or 

when requested by either house of Congress or a committee of 

jurisdiction. Section 3523(a) of title 31 authorizes GAO to audit the 

financial transactions of each agency, except as specifically provided 

by law. 

To carry out these audit and evaluation authorities, GAO has a broad 

statutory right of access to agency records. Under 31 U.S.C. § 716(a), 

federal agencies are required to provide GAO with information about their 

duties, powers, activities, organization, and financial transactions. When 

an agency does not make a record available to GAO within a reasonable 

period of time, GAO may issue a written request to the agency head 

specifying the record needed and the authority for accessing the record. 

Should the agency fail to release the record to GAO, GAO has the authority 

to enforce its requests for records by filing a civil action to compel 

production of records in federal district court. 

GAO’s Audit and 

Evaluation Authority 

GAO’s Access-toRecords Authority 

A limitation in section 716, while not restricting GAO’s basic statutory 

right of access, acts to limit GAO’s ability to compel production of 

particular records through a court action. For example, GAO may not 

bring such an action to enforce its statutory right of access to a record 

where the President or the Director of the Office of Management and 

Budget certifies to the Comptroller General and Congress (1) that a record 

could be withheld under one of two specified provisions of the Freedom of

Information Act (FOIA)1

 and (2) disclosure to GAO reasonably could be

expected to impair substantially the operations of the government. 

The first prong of this certification provision requires that such record 

could be withheld under FOIA pursuant to either 5 U.S.C. § 552(b)(5), 

relating to inter-agency or intra-agency memorandums or letters that 

would not be available by law to a party other than an agency in litigation 

 1

The Freedom of Information Act, 5 U.S.C. § 552, as amended, generally requires agencies 

to disclose documents to the public, subject to certain specified exemptions. 
with the agency, or 5 U.S.C. § 552(b)(7), relating to certain records or 

information compiled for law enforcement purposes.2

The second prong of the certification provision, regarding impairment of 

government operations, presents a very high standard for the agency to

meet. The Senate report on this section 716 limitation stated:

“As the presence of this additional test [the second prong] makes 

clear, the mere fact that materials sought are subject to 5 U.S.C. 

552(b)(5) or (7) and therefore exempt from public disclosure does 

not justify withholding them from the Comptroller General. 

Currently GAO is routinely granted access to highly sensitive 

information, including internal memoranda and law enforcement 

files, and has established a fine record in protecting such 

information from improper use or disclosure. Thus, in order for the 

certification to be valid, there must be some unique or highly

special circumstances to justify a conclusion that possession by 

the Comptroller General of the information could reasonably be 

expected to substantially impair Government operations.”3

The committee report also points out that the Comptroller General’s 

statutory right of access to agency records is not diminished by the 

certification provisions of the legislation. The certification simply allows 

the President or Director of the Office of Management and Budget (OMB) 

 2

More specifically, this exemption category relates to records or information compiled for 

law enforcement purpose, 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, including a state, local, or foreign agency or authority or any private

institution which furnished information on a confidential basis, and, in the case of a record 

or information compiled by criminal law enforcement authority in the course of a criminal 

investigation or by an agency conducting a lawful national security intelligence 

investigation, information furnished by 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. 

3

S. Rep. No. 96-570, at 7-8 (1980). 

Page 13 GAO--07-700T 
to preclude the Comptroller General from seeking a judicial remedy in 

certain limited situations.4

 4 Id. at 7.

Page 14 GAO--07-700T 
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