```

[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]

 
  POWER OF LEGISLATIVE INQUIRY_IMPROVING VA BY IMPROVING TRANSPARENCY

=======================================================================

                                HEARING

                               before the

                     COMMITTEE ON VETERANS' AFFAIRS
                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                         MONDAY, MARCH 16, 2015

                               __________

                            Serial No. 114-9

                               __________

       Printed for the use of the Committee on Veterans' Affairs
       
       
       
  [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]     
       

         Available via the World Wide Web: http://www.fdsys.gov
         
    
    
                                       _________ 
                                 
                             U.S. GOVERNMENT PUBLISHING OFFICE
  98-572 PDF                          WASHINGTON : 2016       
_________________________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Publishing Office,
      Internet:bookstore.gpo.gov. Phone:toll free (866)512-1800;DC area (202)512-1800
     Fax:(202) 512-2104 Mail:Stop IDCC,Washington,DC 20402-001   
         
         
         
         
                     COMMITTEE ON VETERANS' AFFAIRS

                     JEFF MILLER, Florida, Chairman

DOUG LAMBORN, Colorado               CORRINE BROWN, Florida, Ranking 
GUS M. BILIRAKIS, Florida, Vice-         Minority Member
    Chairman                         MARK TAKANO, California
DAVID P. ROE, Tennessee              JULIA BROWNLEY, California
DAN BENISHEK, Michigan               DINA TITUS, Nevada
TIM HUELSKAMP, Kansas                RAUL RUIZ, California
MIKE COFFMAN, Colorado               ANN M. KUSTER, New Hampshire
BRAD R. WENSTRUP, Ohio               BETO O'ROURKE, Texas
JACKIE WALORSKI, Indiana             KATHLEEN RICE, New York
RALPH ABRAHAM, Louisiana             TIMOTHY J. WALZ, Minnesota
LEE ZELDIN, New York                 JERRY McNERNEY, California
RYAN COSTELLO, Pennsylvania
AMATA COLEMAN RADEWAGEN, American 
    Samoa
MIKE BOST, Illinois
                       Jon Towers, Staff Director
                Don Phillips, Democratic Staff Director

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public 
hearing records of the Committee on Veterans' Affairs are also 
published in electronic form. The printed hearing record remains the 
official version. Because electronic submissions are used to prepare 
both printed and electronic versions of the hearing record, the process 
of converting between various electronic formats may introduce 
unintentional errors or omissions. Such occurrences are inherent in the 
current publication process and should diminish as the process is 
further refined.

                                   (II)

                            C O N T E N T S

                              ----------                              

                         Monday, March 16, 2015

                                                                   Page

Power of Legislative Inquiry--Improving VA by Improving 
  Transparency...................................................     1

                           OPENING STATEMENTS

Hon. Jeff Miller, Chairman.......................................     1
    Prepared Statement...........................................    54
Hon. Corrine Brown, Ranking Member...............................     3
    Prepared Statement...........................................    55

                               WITNESSES

Hon. Leigh A. Bradley, General Counsel, U.S. Department of 
  Veterans Affairs...............................................     5
Ms. Maureen T. Regan, counselor to the Inspector General, U.S. 
  Department of Veterans Affairs.................................     7
    Prepared Statement...........................................    56
Mr. Charles Tiefer, Professor of Law University of Baltimore 
  School of Law..................................................     9
    Prepared Statement...........................................    59
Mr. Michael D. Bopp, Partner, Gibson, Dunn ` Crutcher LLP........    11
    Prepared Statement...........................................    65

  POWER OF LEGISLATIVE INQUIRY--IMPROVING VA BY IMPROVING TRANSPARENCY

                              ----------                              

                         Monday, March 16, 2015

             U.S. House of Representatives,
                    Committee on Veterans' Affairs,
                                                   Washington, D.C.
    The committee met, pursuant to notice, at 7:30 p.m., in 
Room 334, Cannon House Office Building, Hon. Jeff Miller 
[chairman of the committee] presiding.
    Present: Representatives Miller, Lamborn, Bilirakis, Roe, 
Benishek, Huelskamp, Coffman, Wenstrup, Walorski, Abraham, 
Zeldin, Costello, Radewagen, Bost, Brown, Takano, Brownley, 
Titus, Ruiz, Kuster, O'Rourke, Rice, McNerney, and Walz.

           OPENING STATEMENT OF CHAIRMAN JEFF MILLER

    The Chairman. This hearing will come to order. I want to 
thank everybody for coming to tonight's hearing entitled The 
Power of Legislative Inquiry--Improving the VA by Improving 
Transparency. This hearing tonight is going to examine some of 
the legal objections that have been raised by the Department of 
Veterans Affairs, including its Office of Inspector General in 
responding to this committee's requests for documents and 
information.
    Members, I want to emphasize tonight that an essential goal 
of this committee is to use its constitutional oversight 
authority to discover and to address problems so that VA can 
serve veterans more effectively and efficiently. And while I am 
willing to work with Secretary McDonald to implement needed 
reforms, I am unwilling to allow the Secretary or anyone else 
at the Department to dictate how the committee conducts its 
oversight or performs its investigations, nor am I willing to 
permit the Department to place any limits on the information 
that we receive.
    Simply put, the committee's constitutional obligation to 
conduct oversight requires that it receive complete and 
unfettered access to all documents requested. This committee 
requires transparency from the VA. Such transparency was absent 
last year when this committee helped to uncover the national 
wait-time scandal. Scheduling data manipulation was exposed 
despite repeated and false denials by VA officials that there 
was anything wrong. When VA tried to impede the committee's 
investigation, we were forced to issue subpoenas to get 
answers. Now, ultimately, leadership at the VA was forced out 
through accountability, for the national scandal itself remains 
complete. Unfortunately, it is uncertain whether VA truly 
understands the lessons in transparency it should have learned.
    Currently, an excess of 100 requests for information remain 
outstanding, 63 of which are months and months past due. Based 
on its general counsel's advice, VA has insisted on chairman's 
letters for many requests and has taken to second guessing 
whether there exists a legitimate purpose for each of the 
requests. Equally problematic, VA and OIG assert that they can 
withhold sensitive information based on the unfounded fear that 
such information might be publicly released by this committee.
    Members of the Supreme Court have consistently found 
Congress' oversight powers to be broad in scope due to its 
constitutionally enumerated powers. Regardless, VA, and more 
troubling, its Office of Inspector General, continue to assert 
a number of what I believe are meritless rationales to delay, 
to limit, and even deny information to this committee. For 
example, VA recently invoked the Trade Secrets Act to avoid 
disclosing a risk assessment evaluating the cost of options for 
completing the Denver Hospital construction project which is 
already hundreds of millions of dollars over budget. Given that 
Congress has to appropriate and authorize the funds for the 
hospital, the reluctance to share this needed information is 
perplexing at best.
    In addition VA recently raised undefined privacy concerns 
to refuse producing all records of a veteran who tragically 
committed murder/suicide. That request was made months ago. 
Also due to an unnecessary and unjustified Privacy Act review 
by VA general counsel, VA has failed to produce several boxes 
of EEO documents from Philadelphia, an area that Mr. Costello 
has been very involved in. We requested months ago this 
information, and even though a member of my staff was told by a 
VA representative that the files would be available in a few 
days, they were never produced.
    And at a briefing with committee staff last Monday, VA 
representatives suggested that VA and the committee work 
together to balance equities and minimize disruption to the 
Department. They suggested that the committee entertain 
briefings in lieu of document requests, and to the extent 
documents remained necessary, that the committee accept in-
camera reviews. With full notice of this hearing, they even 
tried a late gambit to get ahead of the circumstances by 
offering to allow my staff to see long-sought veteran medical 
files and the Philadelphia EEO files, meaning VA would actually 
retain the physical custody of relevant documents, and the 
committee would only get a time-limited, VA-supervised viewing.
    My flat answer to this arrangement is no. The committee is 
not a junior partner with VA in any respects, and certainly not 
when it comes to concerns that our obligation is required in 
its conduction of oversight.
    We request documents for a number of reasons within our 
oversight role, and although we endeavor to share what we can 
with VA regarding the purpose of an inquiry, there are 
legitimate reasons for stopping short of full disclosure. Among 
other things, VA's efforts to co-opt committee investigations 
could place in jeopardy our ability to cultivate whistleblowers 
within the Department. Further, the independence of an 
investigation could be compromised or frustrated by deliberate 
delay if the full purpose of an inquiry is revealed to the 
entity that is the subject of the investigation.
    Let there be no mistake or misunderstanding. When this 
committee requests documents, I would expect production to be 
timely, complete, and accurate. I don't expect a litany of 
questions about the purpose of a request, a negotiation about 
how or when it will be answered, or a tutorial from VA 
officials about how the committee should conduct its business. 
Perhaps most disappointing is that even VA's inspector general 
has adopted a similar restrictive posture with this committee. 
The Office of Inspector General failed to include the committee 
in the distribution of an early report on wait times at 
Phoenix, and more recently, a report on serious medication 
management issues at Tomah, Wisconsin.
    Notwithstanding the Inspector General Act mandate to keep 
Congress currently and fully informed, the IG has a stilted 
position that other than a semi-annual report specifically 
mentioned in the IG Act and others mandated by a separate 
statute, that reporting to Congress is fully within its 
discretion. This position was articulated most recently in 
refusing to provide the committee with all underlying 
documentation for an IG report finding serious improprieties of 
a former senior procurement official.
    Among reasons for the denial were the FOIA, Freedom of 
Information Act, the Privacy Act, and the Trade Secrets Act. 
This case deserves special attention and is illustrative of the 
too-cozy relationship, I believe, between VA inspector 
general's office and the VA. Given the gravity of the findings 
in that the official had taken a position with the Treasury 
Department, we referred the report to the Treasury IG. The VA 
OIG refused to cooperate with the Treasury IG's office that was 
an investigation citing unfounded Privacy Act concerns. The 
Treasury IG conducted its own independent investigation, and 
issued a letter to the committee this past Wednesday that calls 
into question the integrity of VA OIG's actions in this 
particular matter.
    At this time, I would like to ask unanimous consent to 
include the letter in the hearing record. Without objection, so 
ordered.
    In addressing continuing scandals at VA, Deputy Secretary 
Sloan Gibson recently said, ``I don't expect anybody to give 
that trust back. I expect we are going to have to earn it back. 
One of the ways we will work to earn that trust back is through 
transparency and openness.'' If VA truly wants to be 
transparent and open, one of the first things it needs to do is 
to stop impeding this committee's oversight investigations. And 
with that, I yield to the ranking member for an opening 
statement.

    [The prepared statement of Chairman Jeff Miller appears in 
the Appendix]

               OPENING STATEMENT OF CORRINE BROWN

    Ms. Brown. Thank you, Mr. Chairman, and I will be brief in 
my remarks given the time. I know that I speak for many of our 
members when I question the urgency and the need to hold this 
hearing in the evening and not in the course of regular order 
of this committee. I know we have a hearing scheduled on April 
the 30th on female veterans issues, but I wonder if a hearing 
on homeless veterans or military sexual traumas, which many 
members asked for as far back as May 2013, would not be more of 
benefit this evening.
    I believe that the topic of this hearing on the oversight 
powers of this committee and the limitation of that power 
including recognition that there are sometimes legal interests 
that the executive branch have that we should try to 
accommodate; it is an important one. This goes to the very 
heart of the Doctrine of Separation of Powers. I believe that 
this discussion rooted in Congress' broad but not unlimited 
oversight powers is a discussion that from the time many of our 
committee should engage in. Our job as a committee is an 
important one, and we need to have access to information that 
enables us to fulfill our valid legislative purpose. It is well 
settled that Congress does not have the general power of 
investigation.
    I look forward to hearing from the VA how the new process 
that they have undertaken will lead to more complete and more 
timely response to legal committee requests. For too long, 
members on both sides have expressed frustration at not getting 
answers to the questions we have. I hope that this new process 
will fix this problem and not just be the same old process 
dressed up as something new. I have long believed that this 
committee works best when we work together, when we work 
together to uncover problems and work together to ensure that 
we find solutions to this problem. This working together 
includes informing all committee members of actions taken in 
the name of this committee, including oversight requests from 
the VA, the inspector general, and other agencies.
    I am troubled that I have not been informed of many of 
these requests, and I hope that you will ensure me, Mr. 
Chairman, that my staff and I will be informed in the future. I 
look forward to the hearing and the oversight discussions. I 
believe their contribution will be helpful to all of us in 
order to enlighten us on this complex area of law that we look 
at ways to improve the manner and process by which we as a 
committee conduct our oversight responsibilities in the future. 
I thank you, and I yield back the balance of my time.

    [The prepared Statement of Ranking Member Corrine Brown 
appears in the Appendix]

    The Chairman. Thank you very much to the ranking member. I 
would ask as this committee usually does if members would waive 
their opening statements. They can be entered into the record 
at the appropriate point. I was looking at the calendar. I 
would also note that next Monday night is clear, and if the 
ranking member would like to get with me, I would be happy to 
discuss another evening meeting reference MST or homelessness. 
I would be glad to try to work that into our schedule. I think 
those are very important issues.
    Ms. Brown. Would you yield, Mr. Chairman?
    The Chairman. Yes.
    Ms. Brown. You and I have discussed working to make sure 
that we coordinate our schedules, and you just had another 
trip, and I indicated to you that I would like to make sure 
that when we schedule trips, or when we schedule hearings, that 
we work together to make sure it accommodates all of the 
members. I don't want you to meet without us. We are a team, 
and as the Army said, it is one team, one fight, and it is best 
if we are all working together.
    The Chairman. Thank you very much. And reclaiming my time, 
members, we were going to have this meeting next Monday night, 
but in deference to the ranking member's schedule, I did, in 
fact, move it to tonight.
    So I would like to welcome the panelists to the table 
tonight. We are going to hear from the Honorable Leigh Bradley, 
general counsel for the Department of Veterans Affairs; Ms. 
Maureen Regan, Counselor for the Inspector General of the 
Department of Veterans Affairs; Professor Charles Tiefer, 
Professor of Law at the University of Baltimore School of Law; 
and Mr. Michael Bopp, Partner at Gibson Dunn & Crutcher, LLP.
    Given the quick turnaround time for this hearing, the VA 
requested and was allowed not to provide a written statement. 
For the other witnesses who did provide a written statement, 
your complete written statement will be entered into the 
hearing record.
    And, Ms. Bradley, if you do have an opening statement, you 
are recognized for 5 minutes.

               STATEMENT OF HON. LEIGH A. BRADLEY

    Ms. Bradley. Thank you, Mr. Chairman. Good evening. Thank 
you for the opportunity to speak to the committee directly 
following what I believe was a very productive briefing with 
members of your staff and the staff of the Senate Veterans' 
Affairs Committee just last week about how the Department of 
Veterans Affairs can better respond to congressional requests 
for information, including those made in the exercise of your 
legislative oversight authority.
    At the outset, I would like to underscore my personal 
understanding of, and commitment to the important work that is 
before the Department. Secretary Bob McDonald has pledged to 
transform the Department to rebuild trust with veterans and 
other stakeholders. My commitment to be part of the Secretary's 
team during this seminal transformation is both personal and 
rooted in a deep belief that the mission of the Department, to 
care for those who have served and for their families and their 
survivors, goes to the core of our Nation's character. I am 
honored to be part of this mission, and enthusiastically 
committed to the work ahead.
    An integral part of rebuilding trust is meeting our 
obligation to provide information to Congress. Secretary 
McDonald recently emphasized this important duty to the 
Department's leaders and has stressed to all employees the need 
to assist VA's Office of Congressional and Legislative Affairs 
in ensuring that oversight requests are responded to both 
accurately and in a timely manner.
    I would like to reemphasize today what we said to your 
staffers during last week's briefing. The Department is 
wholeheartedly committed to working with Congress in 
collaboration and good faith to ensure that Congress' oversight 
goals are met.
    Among the top priorities the Secretary laid out for me this 
past December, when I became general counsel, was to improve 
the Department's capacity to understand and respond to the 
committee's oversight needs. This effort is directly linked 
with the Secretary's commitment to improve our department's 
openness and transparency which will, we believe, help restore 
public trust. We have made significant progress toward our 
goal. We have aligned resources to enhance the team charged 
with responding to congressional oversight requests, and a 
little bit over 2 weeks ago, we appointed an experienced leader 
to serve as legislative counsel to oversee the team. We are now 
developing procedures that will promote a more systematic and 
clear approach to responding to oversight requests. And as I 
said a few moments ago, we had a very productive discussion 
with your staff last week about how we are improving our 
response process.
    The courts have recognized that the Constitution 
contemplates that the legislative and executive branches, as 
co-equal branches of the government, will work together to 
understand and accommodate one another's interests. One of my 
most important responsibilities as VA's general counsel is to 
ensure the Department's good faith engagement in the oversight 
accommodation process. Among VA's key interests in this process 
are the privacy rights and dignity of all veterans and VA 
employees.
    For example, to carry out the Department's core mission, 
our sacred trust, of providing care to veterans and their 
beneficiaries, VA collects and maintains a variety of personal, 
and often intimate data, on individual veterans and their 
family members. Veterans' health records include more than 
medical diagnoses and lab test results, but also extremely 
sensitive information like sexual history, family finances, and 
personal information about the veteran's children, spouse or 
other loved ones that veterans may share with VA clinicians.
    Similarly VA employee records may include sensitive 
information such as bank account and routing numbers, the 
Social Security numbers of dependent children who may be 
covered by the employee's health insurance plan, and the 
designated recipient of death benefits.
    Some of this data goes to the core of an individual's 
privacy and dignity and may also go to the heart of the 
patient-provider relationship. We simply cannot rebuild 
veterans' trust in VA if we are not sensitive to that fact. We 
understand and respect that the committee may need access to VA 
records to properly oversee the Department, and that may 
include this type of data. We are committed to accommodating 
your requests for records as fully and as quickly as we can. 
When we do provide veterans' or employees' records to the 
committee, however, we must do so sensitively and carefully 
consistent with our core values, legal obligations and our 
commitment to veterans.
    The Office of General Counsel is guided by Secretary 
McDonald's mandate for increased transparency and openness with 
Congress and by the Department's core values. I cannot 
overstate how deeply we are committed to providing you with 
responsive and timely information. We believe we can fulfill 
that obligation through open dialogue to facilitate the most 
responsive information possible to meet your oversight needs.
    Getting this right is deeply personal to me. I am a veteran 
myself, as well as a career civil servant. Both my husband and 
my father are veterans, as well as both my grandfathers. My 
daughter is currently serving on active duty and will one day 
become a veteran. I believe that all of us who chose to serve 
this Nation, in uniform or otherwise, expect the Department to 
work with Congress to ensure that your oversight goals are met. 
At the same time, I believe they also expect both VA and 
Congress to work together to ensure that their privacy and 
dignity are preserved through the protection of their personal 
information. From this place of shared interests, we look 
forward to working with you to accommodate both of these 
critical goals.
    For myself and the Office of General Counsel, I give you my 
commitment to perform our duties faithfully and respectfully, 
to fulfill the Department's sacred trust to veterans, and to 
engage in an efficient and transparent accommodation process 
with the committee. That is what Secretary McDonald has 
directed, and I fully support him in that important commitment. 
Thank you.

    [The prepared statement of Ms. Bradley appears in the 
Appendix]

    The Chairman. Thank you very much. Ms. Regan. You are 
recognized for 5 minutes.

                 STATEMENT OF MAUREEN T. REGAN

    Ms. Regan. Thank you. Chairman Miller, Ranking Member 
Brown, and members of the committee, I would like to take this 
opportunity to address the issues that have been raised with 
respect to the report we issued on December 8, 2014, regarding 
the contracts awarded by VA's Technical Acquisition Center to 
Tridec Technologies for the Virtual Office of Acquisition. On 
Thursday evening, March 12, we received a media inquiry 
regarding a letter sent by Inspector General Eric Thorson at 
the Department of the Treasury to the chairman and ranking 
member questioning the integrity of our report. It is very 
disconcerting to us that this letter was released to the media 
without any discussion with us. In fact, as I sit here tonight, 
neither the committee nor Mr. Thorson has provided us with a 
copy of the letter.
    Mr. Thorson's conduct raises serious question about the 
legality of his actions as a Presidentially-appointed inspector 
general who, at the request of the chairman of this committee, 
conducted an investigation of the VA Office of Inspector 
General and reported his findings directly to the Chairman of 
the Committee.
    In accordance with the provisions of Section 11 of the 
Inspector General Act, we have referred the matter to the 
Integrity Committee of the Council of Inspectors General for 
Integrity and Efficiency, otherwise known as CIGIE. We 
requested that the Integrity Committee conduct a full 
investigation, including the conduct of all individuals 
involved. The Integrity Committee is chaired by the Assistant 
Director of the Criminal Division Of The Federal Bureau Of 
Investigation.
    It is also disconcerting to read the Chairman's recent 
attacks in the media on the integrity of VA OIG leadership and 
cast doubt on the reliability of our work. If the committee has 
concerns about this or any of our reports, the committee can 
discuss these concerns with us, and we encourage that, or 
report their concerns to CIGIE's Integrity Committee.
    As the author of the VA IG report on the contracts awarded 
to Tridec, I can assure you that the findings and conclusions 
are fully supported by the evidence. I personally reviewed the 
investigative records and contract documents and cited them in 
detail in the report. In response to a January 7, 2015 request 
from Chairman Miller, we provided the supporting documents to 
the Committee. We understand those documents were given to the 
Treasury IG. Because the March 11 letter was released to the 
media, I would like to address some of the most egregious 
factual errors in the March 11 letter.
    The Treasury's IG's conclusions appear to be based in part 
on unchallenged statements made by two subjects of the report 
and four unidentified persons without any verification of their 
statements. The Treasury IG states in his letter that his staff 
did not have access to the evidence needed to verify the 
statements. Nonetheless, he reached unsupported conclusions. 
One specific example is that the Treasury IG relied on Ms. 
Cooper's statement that she was unaware she was the subject of 
an investigation when she spoke to the VA OIG Special Agents, 
even claiming that she was told she was not the subject.
    Her statements are not true. OIG investigators are required 
to advise employees of the Government who are the subjects of 
an investigation of certain rights afforded them under Garrity 
v. New Jersey. It is often commonly referred to as the Garrity 
warning. Ms. Cooper was not only advised of her rights under 
Garrity when she was interviewed by the VA OIG special agents, 
she signed a document certifying that she was so advised. We 
were not asked for that document. Treasury IG states that when 
his staff reviewed the VA OIG report, they found the 
conclusions unsupported and sought supporting documentation. 
The letter further states that their efforts and those of the 
Department of Treasury to obtain evidence from us were denied. 
The records at issue are maintained in a Privacy Act system of 
records. As such, we did not have authority to release the 
records without either Ms. Cooper's authorization, which we 
asked them to get, or a valid request under Exemption (b)7 of 
the Privacy Act which is for a specific civil or law 
enforcement activity. We received neither from anyone in the 
Department of the Treasury or the Treasury OIG. As such, we 
would be violating the Privacy Act to give those records to the 
Department of Treasury, and we are not going to violate the 
Privacy Act.
    The March 11 letter also alleges that the Tridec 
investigation was conducted at the request of a Mr. Jan Frye, 
the VA Deputy Assistant Secretary for Acquisition and 
Logistics, and asserts that he holds some level of control over 
me and the VA OIG because he funds certain positions. This 
statement is also not true. As noted in our report, the review 
was conducted in response to multiple anonymous allegations 
relating to the contract that was awarded. These allegations 
were received through the VA OIG hotline.
    Also of importance is that the criminal investigation was 
conducted because one of our auditors who was conducting an 
audit of the TAC, the Technical Acquisition Center, identified 
this contract, had concerns about how it was awarded, and 
actually referred it to the OIG's Office of Investigations.
    The reimbursible agreement has been in place since fiscal 
year 1993, and it is between the VA OIG and VA's Office of 
Acquisition. The memorandum of understanding has never been 
signed by Mr. Frye. The most recent one, it was just recently 
amended, was signed by Mr. Glenn Haggstrom. This agreement has 
never been a secret, and has been included in our budget 
submissions and congressional appropriation bills. The work 
conducted by the employees who provide the services under this 
agreement has been requested by various VA entities within VA, 
and at times, we have the authority to conduct a review on our 
own initiative. Mr. Frye has absolutely no influence over our 
workload.
    According to the most recent semiannual report to Congress, 
the Treasury OIG has 17 positions funded on a reimbursible 
basis by the Department of Treasury, so this is not unusual. 
Any concerns the Committee has with allegations that Mr. Frye 
had undue influence with this investigation is inconsistent 
with the fact that one day after the nonpublic Tridec report 
was provided to the Committee, Mr. Eric Hannel, the Staff 
Director for the Subcommittee for Oversight and Investigations, 
cut and pasted the summary of a confidential report into an 
email and sent it to Mr. Frye. He even noted in there that this 
report had not been made public. Mr. Frye had no reason to see 
that section of the report.
    There are numerous other inaccuracies in the Treasury 
letter, including evidentiary, contracting, and other 
standards. However, due to time constraints, I cannot address 
them all in this statement. We have requested expedited action 
by CIGIE's Integrity Committee so the truth can be seen by all, 
and the baseless attacks on our reputation and integrity can be 
laid to rest. Thank you. I will answer any questions.

    [The prepared statement of Ms. Regan appears in the 
Appendix]

    The Chairman. I have several questions to ask, but we will 
go ahead and allow the other two members of the panel. Sir, 
Professor, you are recognized for 5 minutes.

                  STATEMENT OF CHARLES TIEFER

    Mr. Tiefer. Thank you, Chairman Miller and Ranking Minority 
Member Brown, and all members. I appreciate the committee's 
invitation for this important and controversial subject. I was 
in the House General Counsel's Office. I was general counsel of 
the House of Representatives. I was in that office for 15 
years. I came to many hearings just like this in which there 
was a struggle going on between executive departments and 
Congress, and I have written about it since becoming a 
professor and coming back here to testify at two congressional 
hearings dealing with executive privilege claims, one by 
President Bush, and one by President Obama. That is how 
important this subject is. It is almost historic any time a 
committee gets together to listen to it.
    The VA IG and the general counsel have raised various 
objections to the committee obtaining documents for oversight. 
They seem open and generous, at least to some extent, and 
willing to work out compromises and solutions, but to the ear 
of a House general counsel, to accept the privileges that are 
being evoked, the arguments that are being invoked would mean 
at least delay, if not barring the door.
    Let me take the first of two or three issues. The inspector 
general in the written statement has said that their obligation 
to the committee is satisfied by public reports. I quote from 
the testimony: ``The only specific means identified or mandated 
in Section 5''--that is Section 5 of the Charter of the 
Inspector General Act in the Inspector General Act of 1978--
``the only specific means for meeting this requirement are the 
semiannual reports to Congress and the 7-day letter described 
in Section 5(d).'' After that it is all, I guess, 
discretionary. But the Inspector General Act says that the 
Congress is to be kept, ``fully and currently informed by means 
of the reports required by Section 5, the reports, and 
otherwise.''
    Now, the statute says reports and otherwise. Wouldn't need 
that if it just said reports. I have quoted the legislative 
history of the statute which bears this out, that Congress knew 
what it was doing in 1978 when it passed this provision and so 
forth. A second argument is the Privacy Act. We have the 
argument that the Privacy Act is a basis for withholding from 
Congress.
    Now the OIG testimony said, and I quote, ``OMB guidelines 
specifically state that this exception''--I will come back to 
what the exception is--``does not authorize the disclosure of 
information protected under the Privacy Act to an individual 
Member of Congress acting on his or her behalf or on behalf of 
a constituent.'' Now, this provision says what Congress 
provides in Section 552(a)(b)(9) of the Privacy Act, that it 
was not authority to withhold from ``either House of Congress 
or to the extent of a matter within its jurisdiction, any 
committee or subcommittee thereof.''
    What am I contrasting here? There is an OMB guideline which 
says you don't disclose Privacy Act stuff for constituent 
casework by individual Members of Congress, and they don't. But 
the statute itself says that is not authority to withhold from 
a committee or a subcommittee. Well, that is you. Is there 
anybody in this whole building who doesn't know the difference 
between a committee or a subcommittee on the one hand, and an 
individual caseworker on the other hand? Because if there is no 
difference, I think you should leave this great-looking room 
here. There are certain little cupboards where caseworkers are, 
and you should all cram yourselves in there because that is 
your status apparently.
    All right. My third and final point is the question of 
medical records. And, of course, they are nonpublic, and of 
course they are private. You don't want people to walk in off 
the street and start riffling through the medical files, but an 
investigative body, including the House committee can get them. 
The relevant regulations under the closely related HIPAA 
statute says a covered entity may discover protected health 
information. ``A covered entity may disclose protected health 
information to a health oversight agency for oversight,'' and 
the VA has posted publicly in its notice of privacy practices--
I have put the Web site link in my testimony--``VHA may 
disclose your health information''--they are telling this to 
the veterans, to the beneficiaries--``to law enforcement, 
health care, oversight, e.g., giving information to the Office 
of Inspector General or congressional committees.'' Thank you. 
My time is expired.

    [The prepared statement of Mr. Tiefer appears in the 
Appendix]

    The Chairman. Thank you, Professor. Mr. Bopp.

                  STATEMENT OF MICHAEL D. BOPP

    Mr. Bopp. Chairman Miller, Ranking Member Brown, and other 
members of the House Committee on Veterans' Affairs, thank you 
for inviting me to testify before you this evening. My name is 
Michael Bopp. I am a partner at the law firm Gibson, Dunn & 
Crutcher. I also head our firm's congressional investigation 
group. I also hope to distinguish myself this evening as being 
the only witness to actually finish my testimony in under 5 
minutes.
    I spent more than a decade conducting investigations on 
Capitol Hill in House and Senate committees and on four special 
committees convened to investigate a particular issue or 
problem, and I have helped to orchestrate more than 100 
hearings. I have taken countless depositions and interviews, 
and I have managed massive document discovery efforts both 
pursuant to letter and subpoena. I have been at Gibson Dunn for 
more than 6 years, and have represented individuals, companies, 
and other organizations in dozens of congressional 
investigations. I have been on both sides of the dais, both 
seeking documents and being asked to provide them. The power of 
Congress to investigate, though not explicit in the 
Constitution, is woven into its fabric. As George Mason noted, 
Members of Congress are not only legislators, but they possess 
inquisitorial powers. The U.S. Supreme Court has also concluded 
that Congress has the authority and obligation to investigate.
    In one seminal case, McGrain v. Daugherty, the Supreme 
Court held: We are of opinion that the power of inquiry, with 
process to enforce it, is an essential and appropriate 
auxiliary to the legislative function. Now why is this the 
case? What is the reason for this investigative authority? 
Because Congress needs up-to-date, granular information to 
legislate effectively. After the terrorist attacks of September 
11, 2001, Congress did not rush immediately to pass legislation 
reforming the intelligence community based on available 
information. Instead, Congress created the 9/11 Commission, 
waited for its report, and embarked on its own investigation of 
our intelligence community. The legislation that ensued 
affected a seismic change in how intelligence is collected, 
analyzed, and shared by government agencies. It was the result 
of cooperation and information-sharing by the intelligence 
community with Congress.
    In 2005, when Hurricane Katrina hit the Gulf Coast, both 
the House and Senate initiated investigations into what went 
wrong with Federal, State, and local preparations for and 
responses to the hurricane. As part of the Senate 
investigation, we interviewed more than 325 mostly government 
witnesses, held 22 public hearings, and reviewed more than 
800,000 pages of documents. There was a lot to look at. What 
followed was legislation that overhauled the way FEMA addresses 
natural and other disasters. The legislative action would not 
have occurred absent a thorough investigation by both the House 
and Senate.
    Now it is important to note that Congress need not 
investigate with the sole purpose of drafting or amending 
legislation. During the Katrina inquiry, were we investigating 
specific ways to amend Federal response protocols? No. We were 
investigating what happened, what went wrong. So, too, the 
Supreme Court in McGrain held that it is entirely appropriate 
for Congress to investigate matters on which legislation could 
be had. The executive branch, no matter which party is in 
control, might not always like Congress' investigative 
authority or the way it chooses to exercise that authority, but 
it should respect it because congressional investigations help 
Congress perform its constitutional functions more effectively.
    Congressional oversight of executive agencies helps ensure 
that the government is functioning the way it should in the 
best interests of the American people. The executive branch 
should respect Congress' powers to investigate and legislate 
just as Congress must respect the executive branch's 
responsibility to ensure that the laws are implemented and 
enforced, even when they are enforced against Members of 
Congress.
    Vigorous oversight and investigative activities will always 
cause some degree of friction between Congress and the 
executive branch. In fact, that is how the system was designed, 
but they should not cause agencies to look for questionable 
ways to withhold information from congressional committees. In 
the private sector context, the types of obfuscation alleged 
here would not be tolerated. In the case of investigations of 
the executive branch, such activities are not unique to a 
particular agency or Office of Inspector General, and they are 
also not unique to a particular political party, but they are 
all too common.
    I applaud the committee for standing up for the 
prerogatives of Congress through this hearing, and I welcome 
any questions you may have.

    [The prepared statement of Mr. Bopp appears in the 
Appendix]

    The Chairman. Thank you very much. Ms. Regan, I too have 
sent a letter to CIGIE to try to get to the bottom of the 
conflict that exists between the two offices of inspector 
general. In your very eloquent opening statement, you talked 
about many things, but one thing you did not discuss, or if you 
did, I apologize, I didn't hear it, how many times did the 
inspector general's office from the Department of Treasury 
contact VA OIG to discuss or gather information regarding 
Tridec and the Iris Cooper report that you signed off on?
    Ms. Regan. Signed off on what?
    The Chairman. The report, whether you signed off on it or 
not.
    Ms. Regan. They didn't contact us at all before the report 
was issued. The report was issued----
    The Chairman. Okay. I am talking about after the report was 
issued.
    Ms. Regan. After the report was issued, we learned around 
the 17th or 18th of December, Mr. Richard Delmar left a voice 
mail demanding the file. We didn't know why. In a conversation 
with Mr. Delmar, he told me he had been asked by the Committee 
to conduct an investigation, and he needed the entire file. I 
told him, there is several email exchanges, one in which Mr. 
Thorson actually, when I explained the Privacy Act----
    The Chairman. Actually all I am asking for is a number, 
numerous.
    Ms. Regan. Actually, I don't know the number. I think it is 
laid out in the 5-page response that we gave to the Department 
of Treasury that I provided to Mr. Towers and Mr. Tucker.
    The Chairman. I believe it is at least eight.
    Ms. Regan. I don't remember the number of pages, but we 
laid all of that out in there, and every single time----
    The Chairman. Thank you very much. I appreciate that and 
CIGIE will get to the bottom of it, I am sure.
    Ms. Bradley, December of 2014, we were told that the VA 
would be providing a copy of a risk assessment regarding the 
Denver Construction Project. Later in January the VA responded 
that it would not provide the committee with the promised copy 
of their assessment, but instead, would allow committee staff 
to review the document in the presence of VA staff. VA has made 
the same decision regarding MSPB and Equal Employment 
Opportunity files from the Philadelphia RO. However, in both 
cases there was no justification for the unilateral decision 
that was made by VA.
    I would like you to explain to me and the committee what 
grounds do you think VA has for demanding an in-camera review 
of the assessment.
    Ms. Bradley. I really appreciate the question, Mr. 
Chairman. I think both of those examples you point to 
underscore the need for greater communication between VA and 
the committee, a greater development of trust so that when you 
ask for documents or information that we retain, that we can be 
responsive to your needs, but we can also be mindful of 
executive branch prerogatives, meaning executive branch 
interests which we must protect. With respect to the risk 
assessment----
    The Chairman. If I can reclaim my time, who appropriates 
and who authorizes the expenditure of funds for things like the 
Denver Hospital?
    Ms. Bradley. Congress.
    The Chairman. Correct. How can we do the oversight 
necessary if you do not provide us the entire document that 
exists out there and the assessment that you are doing, VA is 
doing, in order to try to bring this behemoth disaster under 
control. I mean, we are talking about a project that has gone 
from $600 million that will probably more than double before it 
is over.
    Ms. Bradley. The way that you phrase this is misleading to 
the American people. You suggest that we haven't provided this 
information to the committee. We did in December----
    The Chairman. Excuse me.
    Ms. Bradley. Could I finish? Could I answer?
    The Chairman. No. No, you can't because I have 1 minute 
left on the clock, and I am not going to let you filibuster for 
me to get the answers that I need. Why did VA not provide the 
risk assessment, not in-camera, the risk assessment.
    Ms. Bradley. The risk assessment contains sensitive pricing 
information. As you note, we had to compete for the follow-on 
contract. We wanted you to have that information immediately 
and offered it to you immediately. The reason we that didn't 
want to provide you a document is the risk of redisclosure, 
whether it is inadvertent or intentional. It was too important 
to making sure that we could have fair playing field----
    The Chairman. Excuse me. Mr. Bopp, is that an adequate 
explanation? Is Congress bound by the same privacy requirements 
that the general public is?
    Mr. Bopp. No, it is not, Mr. Chairman.
    The Chairman. And so what Ms. Bradley is trying to explain, 
and I can understand the need to try to protect sensitive 
information, but if Congress asks for that information, is 
there any explanation as to why it should not be given?
    Mr. Bopp. In my view, it is Congress' prerogative to ask 
for and receive the information in the form it needs. That is, 
if in-camera inspection is not adequate to the committee's 
needs, the committee should have access to the information.
    The Chairman. Thank you. Ms. Brown.
    Ms. Brown. Thank you, Mr. Chairman. Mr. Chairman, I first 
would like to say I have not seen a copy of the letter that you 
sent CIGIE. Can you provide us a copy of it?
    The Chairman. I will be happy to.
    Ms. Brown. Mrs. Bradley, I would like for you to finish. 
Because I understand when we request sensitive information or 
information that the committee needs, what I want to know is 
when we get that information, let's say a lot of this is 
legal--in other words, we may be suing somebody or someone 
might be suing us--what happens if the committee releases that. 
I think that is what you were discussing?
    Ms. Bradley. Well, precisely. I also want to make the point 
that we didn't say that the committee couldn't have the risk 
assessment. In fact, if the committee finds that an in-camera 
inspection of the risk assessment is insufficient to meet your 
needs, if we have a more open dialogue, you would simply tell 
us that, and we would reassess and provide it to you. We are 
trying to minimize the redisclosure of highly sensitive 
information.
    In this case, it is procurement sensitive information that 
could give an offerer on a follow-on contract an advantage over 
other contractors, and so for the reason of trying to protect 
the taxpayers so that we get the best value on the follow-on 
contract, we thought that the best approach was to provide it 
in-camera. But again, accommodation is about talking about your 
interests. Over the months, and I have only been the general 
counsel for just shy of 3 months, and Secretary McDonald talked 
to me about this, we have been engaging in conversations 
through letters. We really haven't been talking. You haven't 
been sharing with us your needs. So if we come up with a 
proposal for providing you information, a healthy dialogue----
    Ms. Brown. Ms. Bradley, I don't have much time either. 
Don't we have a new process in place?
    Ms. Bradley. We do.
    Ms. Brown. Tell us quickly, what is that?
    Ms. Bradley. We have a streamlined process. We have an 
exceptional person who is leading that process. So now we have 
someone who is going to be a focal point with you and to our 
agency to very quickly assess what information you need and the 
format that you need that information. So instead of asking for 
boxes and boxes of personnel records that you may or may not 
need, we will talk to you to make sure that we are providing 
what you do, in fact, need to perform your oversight function.
    Ms. Brown. Thank you. Ms. Regan, did you want to respond to 
the request that was asked you earlier more complete?
    Ms. Regan. Yes, I would. Thank you. I received a phone call 
around December 17 from the Treasury IG demanding a copy of all 
the investigative files. When I questioned their need for it, 
they told me they were asked to investigate by the Chairman of 
this Committee, and actually they told us that, I think on a 
letter from Mr. Thorson at one time said on December 12, that 
Mr. Rees had sent over a copy of that report. At that time, it 
was not a public report. We had many, many discussions with 
them about what they needed, why they needed, that it was a 
Privacy Act document, and that we had to meet certain 
requirements of the Privacy Act so as not to violate it.
    Ms. Brown. My question is, is this the usual process that 
one inspector general's office investigates another?
    Ms. Regan. It is unheard of. And I would like to say that 
as we went through this discussion on January 5, I had a call 
again with Mr. Delmar, and when I told him I didn't have 
authority to give him the records in the manner he was asking, 
he said to me, and I quote, ``Well, I am going to have to 
report you to House Veterans Affairs Committee for not being 
cooperative with us.'' Two days later we get a letter from the 
Chairman asking for the records, and we did provide the records 
requested for the stated oversight purpose for that. We had 
them come over. We talked about what they needed. We told them 
they could get an authorization from Ms. Cooper. We told them 
about a (b)7 letter. Turns out they didn't even know what one 
was. They didn't have a civil or criminal law enforcement 
purpose. We can't violate the Privacy Act.
    We went for about a month and a half trying to work with 
them to find a valid legitimate reason under the Privacy Act to 
give them the records, and there wasn't one.
    Ms. Brown. Thank you very much. Is there in-camera review, 
Mr. Bopp, in-camera review, is there appropriate accommodations 
at times?
    Mr. Bopp. At times, sure, I think if that meets the needs 
of the committee, absolutely. But I think the point is the 
committee has the authority to decide whether it needs more 
than just in-camera review.
    Ms. Brown. Thank you.
    The Chairman. Ms. Bradley, real quick, did I hear you 
correctly say that VA would determine what the committee may or 
may not need?
    Ms. Bradley. Absolutely not. If I said that, I did not mean 
to say that.
    The Chairman. Would you like to retract that?
    Ms. Bradley. It is clearly----
    The Chairman. Could you turn the microphone on, please?
    Ms. Bradley. I didn't say that, or if I said it, I 
certainly didn't mean to say that. We must talk to you so that 
you can tell us what you need. What I said before is that we 
have been sharing information through letters where the needs 
are not as clear to us as we would like them to be in order for 
us to be responsive and expeditious.
    The Chairman. If I would tell that you we were offered the 
risk assessment document the day after our telephone conference 
call with VA in December, it took several weeks of dialogue for 
VA to finally acquiesce to allow an in-camera review. Let me 
just make it very clear. In-camera review of any document is 
not acceptable. So you don't even have to go through that. 
Okay? We want the documents. Mr. Lamborn.
    Mr. Lamborn. Thank you, Mr. Chairman, for your leadership 
in having this meeting. Ms. Bradley, you inferred that you need 
to protect the privacy of veterans and their dependents, for 
instance, not giving out their Social Security numbers. Has 
this committee ever asked for Social Security numbers?
    Ms. Bradley. No, and I am not suggesting that you do. But 
when you ask, especially if you have broad requests for 
information, a lot of times the information that you request 
has all of that sensitive information in it. So what we may 
want to do is have a conversation with you to tell you that we 
would like to redact the Social Security numbers, but we want 
to be open and transparent about it so----
    Mr. Lamborn. If this congressional committee has to give 
you a specific reason behind any particular request for 
information, doesn't that allow you to judge whether or not you 
agree with that intention? If so, that makes you a more than 
equal partner in what should be a co-equal relationship.
    Ms. Bradley. No. We are not in a position to judge. We 
don't have authority to judge. We just need to know what you 
need. In other words, if we are trying to divine from the 
heavens above what you need out of 200 personnel files, and 
then later after you look at the personnel files and you say to 
us, you know what, what we were looking for----
    Mr. Lamborn. Let me go on. I have a limited time here. Ms. 
Regan, in your testimony you site in 1989 DoJ Office of Legal 
Counsel opinion stating that, ``The process of accommodation 
requires that each branch explain to the other why it believes 
its needs are legitimate.'' What you do not say in this 
testimony is that this opinion relates to the accommodation 
process involved when a constitutional privilege has been 
asserted. Tell me, please, what constitutionally-based 
executive privilege the OIG has asserted to the committee?
    Ms. Regan. We have not had a request where we have asserted 
that privilege at all. I am just talking in general about 
providing documents. And up until recently we have never been 
asked for anything that was deliberative process.
    Mr. Lamborn. Okay. So you are not asserting, and no one is 
asserting any kind of constitutionally-protected executive 
branch privilege.
    Ms. Regan. I don't have a request at this time in which we 
would assert that privilege. The only request that seems to be 
an issue is the request for the entire investigative file on 
Tridec.
    Mr. Lamborn. Okay. So on the record, there are no 
privileges being asserted?
    Ms. Regan. We already provided those documents that were 
requested, and the documents that related or supported the 
report as the letter said, and we did not assert that 
privilege.
    Mr. Lamborn. And, Ms. Bradley, back to you, it should be 
sufficient for you to realize that if we are serious enough 
about a request to put it into writing, and to formally present 
it to you, we want a truthful and transparent response, and 
this should control, no matter what you think our intentions 
are or are not. Would you agree with that statement?
    Ms. Bradley. I certainly do. And, again, I don't want to 
convey an impression that we at VA are trying to judge your 
intentions. We are simply trying to respond, to be responsive 
to your oversight needs.
    Mr. Lamborn. Okay. Well, that is not how it is coming 
across, and I don't think we would be here otherwise, so I 
really think that we need more transparency on the part of the 
VA. Thank you, Mr. Chairman. I will yield the balance of my 
time to you if you want to use it.
    The Chairman. Thank you very much. Ms. Bradley, I would ask 
you, the MSPB and EEO files, why it has taken 3 months for the 
VA to tell the committee that you will not comply with the 
request when the EEO program manager actually told us that we 
could get the information. In fact, I think I was told that I 
would have to have a chairman's letter. I provided that 
chairman's letter. We are not writing letters because we like 
to. Most of the chairman's letters are written because that is 
what has been demanded of this committee from the agency, so my 
question is, why is it taking so long to get the information 
that should have been available, was told to us it could have 
been available, in 1 to 2 business days?
    Ms. Bradley. Mr. Chairman, I am really glad that you asked 
about this one as well. I have only been on the job for 
whatever, 2 months and 3 weeks.
    The Chairman. Can we stipulate that you have just started?
    Ms. Bradley. That would be great. I have looked into this 
matter, and we haven't said no; and, in fact, we are working on 
that particular request, and we said to your committee on this 
past Thursday, that we wanted to come up and have a 
conversation because we got boxes and boxes. We wanted to make 
sure that this is what you want and need before we convey all 
this information to you.
    The Chairman. Thank you. And I very much----
    Ms. Bradley. You refused that request.
    The Chairman. I apologize. I am not trying to shut you 
down, and I appreciate that commitment, and I look forward to 
working with you in that. But could you share with us when the 
Philadelphia RO provided the EEO files to the Office of General 
Counsel.
    Ms. Bradley. I don't know but I certainly can and I will.
    The Chairman. Will you find out for me?
    Ms. Bradley. I can and I will.
    The Chairman. Thank you very much. Mr. Takano, you are 
recognized.
    Mr. Takano. Thank you, Mr. Chairman. There is just an awful 
lot of documents in question that we haven't been made privy to 
on the minority side. And so I am just trying to figure out 
what the dispute is about, and from I what I can tell, there 
have been questions that have been put to you, the VA, by the 
inspector general of the Treasury, and there have been 
questions put to you by the majority of this committee. Is that 
correct? I mean, is that what the dispute is about here?
    Ms. Regan. Are you talking about the dispute with the 
Tridec report?
    Mr. Takano. Yes.
    Ms. Regan. I am not sure what the dispute is. We did 
provide the Committee with documents. The question I got asked 
is why we didn't provide the documents to the Treasury IG, and 
as I said, those records are protected under the Privacy Act, 
and we did not have authority to give them to the Treasury IG, 
so we did not.
    Mr. Takano. Mr. Bopp or Mr. Tiefer, you have commented on 
what the VA is required to do with respect to congressional 
committees.
    But do you have any comment as to the VA OIG 
responsibilities to respond to another IG office?
    Mr. Tiefer. No.
    Mr. Takano. You have no comment?
    Mr. Tiefer. I have no idea.
    Mr. Takano. So do you have nothing to say about whether or 
not they are required to respond to queries of another IG 
office and they can determine whether or not they should 
disclose certain information or not?
    Mr. Bopp. I would make one observation, and it is this. My 
reading of the Privacy Act is that--for the exceptions within 
the Privacy Act, which include exceptions for providing 
information to Congress or congressional committees and also 
includes an exception to providing information to another 
agency or an instrumentality. I don't read the Privacy Act as 
requiring an affirmative request for the IG to be able to share 
that information.
    Mr. Takano. Well, let me ask you this: Does the fact that 
an inspector general, in this case, of the Treasury, who has 
been asked, presumably, by the chairman of the committee--does 
that give any more authority to the IG's office under the 
inspector general--of the Treasury--of a different department?
    Mr. Bopp. It is a very good question. I think I would 
answer it this way. I think the chairman of the committee, 
having asked for the information--well, the information 
obviously can be. And I understand what is shared with the 
committee. As far as whether the chairman can somehow vest more 
authority into the IG--into----
    Mr. Takano. It isn't more straightforward just for the 
chairman to go through regular order and get authorization from 
the committee because we do have a process here by which 
subpoenas are issued for information? Or in the absence of 
cooperation, wouldn't that be a much more straightforward 
process than going through the IG of another department whose 
ability to be able to ask that question is somewhat in 
question?
    Mr. Bopp. My understanding is that the information was 
provided to the committee, but I defer to Ms. Regan and the 
committee staff.
    Mr. Takano. Ms. Regan.
    Ms. Regan. The information requested that is--the documents 
that supported the findings and conclusions in the report were 
provided to the Committee.
    And my understanding is that they were then given to the 
Department of Treasury, who has absolutely no authority to 
conduct an investigation into another IG's office.
    Mr. Takano. Do you have any--I mean, you say it is unheard 
of that one IG's office would investigate another IG's office.
    I mean, do you have--I mean, I am trying to understand why 
this happened.
    Ms. Regan. First of all, this committee has no oversight 
authority over the Treasury IG. So even for the Treasury IG to 
conduct an investigation of the individuals, it would be a 
Privacy Act record. And the only time you can provide those 
documents to the Committee is for your oversight committees or 
subcommittees.
    So that Treasury IG has no authority to come in and 
investigate our work. There is no authority whatsoever. The IG 
Act says that your scope of your authority is over the programs 
and operations of the agency for which you are the IG.
    So ours is the VA. Treasury is Treasury. There is no 
authority under the IG Act. Their appropriated funds are to 
conduct the oversight of the Treasury Department.
    Mr. Takano. Since you have not asserted any form of 
executive privilege--I mean, that is what I have heard you say, 
no executive privilege--there is no reason for extraordinary 
measures trying to be had here by going to a different IG.
    Ms. Regan. There is a significant difference in dealing 
with information to go to another agency. There is actual case 
law holding that you can't even use a routine use to give 
Privacy Act information to another agency.
    The only exception under the Privacy Act is with the 
authorization of the individual, a waiver. So, for example, if 
there is an OPM background investigation, there is a waiver 
that says agencies can give them the information.
    The other exception is (b)(7), which is for law enforcement 
purposes, and that requires a specific articulated law 
enforcement activity and a specific portion of the record that 
is being sought.
    We could not get either from the Treasury IG. They had no 
civil or criminal law enforcement activity. The Privacy Act 
prevents us from giving those records without violating the 
Privacy Act.
    Mr. Takano. Thank you very much.
    The Chairman. Mr. Takano, if I can express to you just a 
little bit and the other Committee members so you understand.
    This didn't just bubble out of nowhere. When the VA OIG did 
the report, it was a damning report on a former VA employee who 
had left VA and gone to work doing almost the exact same job at 
the Department of Treasury.
    So this whole conversation started because it appeared that 
this person had left VA and, because there is no communication 
between the agencies, that Treasury had no idea that Iris 
Cooper and the Tridec report had occurred.
    Ms. Regan, I mean, is that kind of in a nutshell?
    And then----
    Ms. Regan. There was nothing public at the time she moved 
over to the Department----
    The Chairman. Correct.
    Ms. Regan [continuing]. Of Treasury.
    The Chairman. Correct.
    So when we found where she had gone to, we called to make 
sure that they were aware of what was going on. They thought 
that they had hired an employee that could have an issue from 
being hired. That is how the two IGs--normally, we would never 
communicate with another IG.
    Again, when--and you know from being on this committee time 
and time again employees are allowed to resign, they are 
allowed to transfer, to leave, and it never goes in their file. 
And so they are shuffled on to another agency. And so that is 
how this all started.
    And so Treasury IG then began their own questioning, trying 
to find out what was going on. They were being blocked from 
getting any information at that point. And so that is where--I 
mean, yes, this is about the two Offices of Inspector General. 
And, by the way, the report is public. The exact report that 
was given to the Treasury OIG is the same report that is online 
now.
    Ms. Regan. It was not public at the time it was given to 
them.
    The Chairman. It is now.
    Ms. Regan. We had FOIA request, and we published it within 
7 days.
    The Chairman. Correct.
    So it is a public report. There was nothing changed in that 
report. There was no privacy information that was given that 
shouldn't have been given.
    But that is how this whole document situation began. 
Otherwise, we would be dealing specifically with Ms. Regan and 
not--not the other OIG.
    Mr. Bilirakis.
    Mr. Bilirakis. Thank you, Mr. Chairman. Appreciate it.
    All right. Questions for Ms. Bradley.
    Previous Supreme Court findings and Federal court cases 
that were mentioned in the testimony of Professor Tiefer and 
Mr. Bopp provide case studies that support the powers vested to 
Congress on inquiries without justification needed nor a 
product or legislation produced.
    My question is: Why should congressional committees with an 
oversight role related to agencies have to disclose the purpose 
of their inquiry?
    Ms. Bradley. Let me quote from a seminal case on this 
issue. This gives you the legal framework for our thinking.
    ``The framers expected that, where conflicts and scope of 
authority arose between the coordinate branches, a spirit of 
dynamic compromise would promote resolution of the dispute in a 
manner most likely to result in efficient and effective 
functioning of our governmental system.
    ``The coordinate branches do not exist in an exclusively 
adversarial relationship to one another when a conflict arises. 
Rather, each branch should take cognizance of an implicit 
constitutional mandate to seek optimal accommodation through a 
realistic evaluation of the needs of the others.''
    So while we will see your needs for information for 
oversight purposes, we want to talk more frequently and openly 
with you all so that you understand our needs to protect 
certain information.
    Mr. Bilirakis. Mr. Tiefer or Mr. Bopp, would you like to 
respond to that?
    Mr. Tiefer. That kind of language is used when there is a 
much stronger executive branch claim than the ones here, the 
kind of claims that were made by President Bush or President 
Obama when they gave executive privilege claims from the 
presidency itself.
    Just because one can say, ``Oh, I think the Privacy Act 
should be put in the way of the committee,'' even though it 
says in the statute it can't be, that is not enough to start 
this dynamic approach of the planets and the Congresses and the 
separation of powers and all that sort of stuff. You save that 
for a place where you have got a real argument to defend the 
material from oversight.
    Mr. Bilirakis. Mr. Bopp, do you have anything to add?
    Mr. Bopp. I would say that what Ms. Bradley quoted from is 
aspirational when it--as it refers to this committee and--but 
the reality is that the Constitution vests authority such that 
it is up to this committee to decide what it needs and when it 
needs it and it is not up to the agency to be able to 
determine--or to determine that, ``Well, there is not enough 
dialogue going on with the committee; therefore, we are not 
going to produce these documents.''
    Mr. Bilirakis. Thank you.
    The next question is for Ms. Regan.
    One of the main functions of the Inspector General's Office 
authorizing the IG Act of 1978 was to provide a means for 
keeping the head of the establishment and the Congress fully 
and currently informed about problems and deficiencies related 
to the administration.
    In your testimony, ma'am, you suggested that the IG's 
interpretation of this law only requires the IG to submit semi-
annual reports to Congress. Can you confirm that this is the 
position of the IG specifically in relation to the IG Act and 
what is required by law to Congress? Yes or no. Can you confirm 
that?
    Ms. Regan. The IG Act only requires--the only specific 
requirement is a semi-annual report.
    Mr. Bilirakis. Thank you.
    Ms. Regan. But that is not what do.
    Mr. Bilirakis. Thank you.
    Ms. Regan. As noted in my testimony.
    Mr. Bilirakis. Thank you.
    Mr. Bopp, in regards to the interpretation of the IG Act, 
do you agree that the intent of this act and requirement of the 
OIG is limited to semi-annual reports when keeping Congress 
fully and currently informed?
    Mr. Bopp. I do not. I don't believe that semi-annual 
reports alone in most circumstances constitute keeping Congress 
currently and fully informed.
    Mr. Bilirakis. Mr. Tiefer?
    Mr. Tiefer. Same.
    Mr. Bilirakis. Thank you.
    The IG Act has been enacted for the last 37 years. The 
question is for Ms. Regan and Ms. Bradley.
    The IG Act has been enacted for the last 37 years. Why is 
it now that the VA and the OIG are contesting the investigative 
powers and authority of Congress in this act?
    During a time when the VA must continue to rebuild the 
trust of the veterans they serve and, of course, Congress and 
the American public, how would providing less information to 
Congress and the public help in this endeavor?
    So we will start first with Ms. Regan, please.
    Ms. Regan. All of our reports--as I said in my written 
testimony, all of our reports are reviewed prior to being 
issued, and those reports, if they can be a public report 
without redactions under the Privacy Act, are actually put up 
in unredacted form on our Web site within 3 days after being 
issued.
    Those reports that have to be redacted, we have to wait for 
a FOIA request, a Freedom of Information Act request, but they 
are all ready to go. So once we get a FOIS request they are put 
up on the Web site.
    So we do keep the public informed because all of those 
reports are put up on our Web site without delay. That is one 
thing we have conscientiously done.
    So we know what reports are going to go up. We even try to 
write our reports in such a way to take out names, identifiers, 
medical records, and everything else so that we can put it up 
on the Web site unredacted.
    We do that a lot with the healthcare inspections. 
Otherwise, they would almost all be confidential and we 
wouldn't be able to release them. So we make a concerted 
effort, and that is one of the ways we keep Congress informed.
    In fact, before a report goes up on the Web site that we 
expect will have some public interest or Congress is interested 
in, even an individual Member, we make the effort to come up 
and brief them. I think we have had 400 briefings up here, and 
those are just the formal ones.
    There are the informal ones where a staff member or 
somebody--a Member of the Congress calls us and just wants us 
to answer some questions about something, and we do that, too. 
We have never withheld information on the----
    Mr. Bilirakis. Thank you.
    Ms. Regan [continuing]. Reports that we have done.
    Mr. Bilirakis. Thank you.
    I would like to give Ms. Bradley an opportunity to respond 
about these things.
    Ms. Bradley. Thank you.
    Transparency is so important to establishing or reaffirming 
a trust with the American people and with our veterans. And, to 
that end, Secretary McDonald has made a lot more information 
available to the public, including information that is posted 
on the Web site about access.
    I understand that we have to do a better job responding to 
the oversight requests that you send us. I will note that the 
committee started a list, I believe, in January of 2013 that 
you monitor so that there is more transparency about how we are 
responding to your requests.
    Of the list of items that you have requested from VA, my 
understanding is that currently we have provided you with 94 
percent of all of your requests. That doesn't mean there isn't 
a lot of work to do, but that is why I am here tonight, to talk 
about the new team and the new process.
    We can do better, and that is our goal, openness and 
transparency with this committee and with the American people.
    Mr. Bilirakis. All right. Thank you.
    My time is expired. I yield back, Mr. Chairman.
    The Chairman. Thank you very much.
    And the chair disputes the 94 percent of all requests.
    Ms. Brownley.
    Ms. Brownley. Excuse me. Thank you, Mr. Chairman.
    I wanted to ask Mr. Bopp or Mr. Tiefer--either one of you 
could respond.
    I think at least, Mr. Bopp, you have made it, I think, 
pretty clear to the committee that the Constitution indeed 
invests the authority in committees to ask for information that 
they need to legislate. So I wanted to just drill down a little 
bit further.
    So what does it mean when the committee asks for 
information? Is that a collective committee decision? Is that 
the chairman of the committee making a decision? What 
constitutes a request from the committee?
    Mr. Tiefer. It depends on the rules of the House and the 
committee rules. Under some legal situations, the entire 
committee is supposed to authorize, but that is----
    Ms. Brownley. So that can be determined by the rules of the 
committee.
    Mr. Tiefer. Under other circumstances, the chairman by 
himself.
    Ms. Brownley. Okay. So the committee requests information. 
Under optimal circumstances, we receive the information.
    Once we receive that information, does that information 
become public information? Is there a responsibility of 
committee members once they have in their possession this 
information?
    Mr. Bopp. It does not become public information when it is 
received by the committee. There are House rules about what 
happens to that information. And the information that is shared 
with the committee then becomes the information of the 
committee. And so, as Professor Tiefer noted, it is then up to 
committee rules to determine what can be done with that 
information.
    Ms. Brownley. Thank you.
    And just, again, to continue to sort of drill down and 
explore with regards to any possible limitations to Congress in 
terms of its broader oversight authority, can either one of you 
provide any examples of what you would consider to be a request 
made by a committee within its jurisdiction that could be 
properly ignored by an agency?
    Mr. Tiefer. Well, there certainly are several statutes 
which I named in my written testimony. One of them concerns 
taxpayer information where the statute itself says, in general, 
committees can't get it.
    And if one of the few committees that can get it, which is 
the Ways and Means Committee, wants it, they have to walk 
through the following path of explicit authorizations and so 
forth.
    And there is--the intelligence committee is similarly 
surrounded by procedures and restrictions and limitations. That 
is not true, in general, where the information is sought. It is 
true of some.
    Ms. Brownley. Yes, sir.
    Mr. Bopp. You phrased your question very adeptly. You said 
within the committee's jurisdiction. And if the request is 
within the committee's jurisdiction, then I believe that that 
request is valid----
    Mrs. Brownley. Right.
    Mr. Bopp [continuing]. And should be complied with.
    Ms. Brownley. Are there any--I am not a lawyer. It is 
probably pretty obvious. But are there any time restrictions 
also with regards to request of information and the timeliness 
of receiving that information?
    Mr. Bopp. Not built into the rules. I mean, that is the 
key. Right? In my view, in today's--today's discovery 
involves--often involves, you know, requests for electronic 
discovery, electronic emails, sometimes text messages. Those 
documents can take time to produce. And there is no timeframe 
listed in the committee's rules.
    But what ought to happen in a situation like that is there 
ought to be a dialogue between the committee and the agency 
being asked for the information. The agency being asked for the 
information should explain how long it will take, what the 
process is for getting those documents, so there is no--there 
is an understanding.
    Sometimes it does take weeks to collect documents and to 
produce them. But if the documents are actually collected and 
they are being held and not produced to the committee because--
for whatever reason that is not valid within the law, then 
there is a problem.
    Ms. Brownley. Thank you very much.
    And I yield back.
    The Chairman. Thank you.
    Dr. Roe.
    Dr. Roe. Thank you.
    The Chairman. Dr. Roe, also, I apologize. Welcome back. We 
have missed you. And our thoughts and prayers have been with 
you the last several weeks. I just want you to know that your 
seat was vacant, but we all knew why you weren't here.
    Dr. Roe. Thank you. I want to thank the committee for their 
support and all the Members that have reached out in a personal 
way during my family tragedy that was very heart-rending for 
me.
    I just want to say a couple of things. I have been here 6 
years and change. And the way we--and we are a pain, I realize, 
sometimes. We can be a real pain, and you know where. And that 
is our job, though.
    We can't do our job without adequate information. And when 
it is not--when the VA is not transparent--and that is why I 
think we are having this hearing tonight, is that we don't feel 
like--and I certainly don't--feel like that information has 
been generously handed to us.
    And I will give you an example, Ms. Bradley. When you said 
that, basically--and the impression that the chairman gave was 
exactly, ``We will decide what you think is important''--``We 
will decide what is pertinent information.'' That is what I 
heard you say.
    And I think, if the VA had been forthcoming, we wouldn't be 
$500 or almost $600 million over budget at a VA hospital in 
Aurora, Colorado. And when I think about that, I think about, 
as a physician, how much health care we could provide veterans 
for $5 or $600 million. It is a lot, let me tell you. That is a 
lot of money. And it isn't done yet.
    So I think us knowing what those contracts are, we could 
help you do your job better. And in the time that I have served 
on this committee, I haven't seen any private information 
released yet. And you are making an assertion that what 
happened here that I have never seen happen.
    And as Mr. Lamborn said, we have never asked for somebody's 
Social Security. Redact that. If it is personal information, we 
can have records release signed. Every doctor up here on both 
sides of the aisle know that, to release personal information, 
you have got to have a records release. We can get that if we 
need it.
    We need you to be forthcoming because what we think--we 
have built a wall between the VA and this committee, and it is 
a steep wall. And every time we find out you are not giving us 
information, we then think, ``Well, what are they holding back 
from us that we can do our job?''
    So I think you begin to see why it is so important for you 
not to decide. But if we pore over more records than need be, 
let us pore over them. That is our problem, not your problem. 
And I haven't seen that fear you have of information being 
given out, personal information.
    I would like to have you list one case that that has 
happened. I don't know of one. Do you?
    Ms. Bradley. I am aware of several cases. Yes.
    Dr. Roe. What are they?
    Ms. Bradley. Secretary McDonald shared a case with me.
    Dr. Roe. What are they?
    Ms. Bradley. But let me say something first.
    Dr. Roe. No. I asked you a question.
    What I----
    Ms. Bradley. I think----
    Dr. Roe. I have never heard----
    Ms. Bradley. I don't want to share it in this hearing. But 
suffice it to say----
    Dr. Roe. Well, give me a broad--use a Jane Doe.
    Ms. Bradley. It was shared with the Secretary in the 
chairman's presence.
    Dr. Roe. Don't give anybody's name or anything.
    Ms. Bradley. That is exactly right.
    Dr. Roe. Use somebody else's name.
    Ms. Bradley. But that is the point. There is such a lack of 
trust between----
    Dr. Roe. I want you to tell me----
    Ms. Bradley [continuing]. This committee----
    Dr. Roe. I want to know what those cases are where private 
information from this committee were divulged. That is what you 
have just said.
    Ms. Bradley. I will be happy to share that with you, but I 
don't intend to share it in this public forum.
    Dr. Roe. Okay. That will be fine.
    Ms. Bradley. I am not going to redisclose the information. 
But I am aware of two cases.
    But that isn't the point. The point is we must trust each 
other and we must work closer together. That is precisely why 
you are developing----
    Dr. Roe. Let me interrupt you.
    Ms. Bradley [continuing]. The process----
    Dr. Roe. That is the point. Because what you just said was, 
``We can't supply that information because we are afraid you 
will say something you shouldn't.''
    Ms. Bradley. I never said that.
    Dr. Roe. Well, that is what you just said.
    Ms. Bradley. I didn't say it, and I don't mean to imply it.
    Dr. Roe. Okay. Good. I appreciate that you don't.
    And the IG--we have to have an independent IG to be able to 
do our job. There is no question about it. Without your input, 
Ms. Regan, we can't do what we need to do because we can't get 
the information that we need to make these decisions.
    And so we have to have a straight shot from you, and we 
have to be able to believe what you are saying. And I have. 
Look, I think you all have done a good job through the time I 
have been on here. And so I think we have to have that 
transparency. I think it is gone, and I think that is why we 
are holding this hearing tonight.
    Ms. Regan. But I will echo the words of Ms. Bradley's that 
there is--it is a two-way street and there has to be trust. 
And, to be honest, the trust isn't there right now.
    And I can give examples where information we gave to this 
Committee that we thought was for Committee purposes--there was 
never a discussion with us about the information, but the next 
day it ends up in the press.
    Dr. Roe. Let me interrupt you.
    I don't think you--I don't think you need to decide if it 
is--what we do with that information. That is our job to do. 
Not your job to decide what we are going to do with the 
information----
    Ms. Regan.
    Dr. Roe. I think----
    Ms. Regan. When the information is never used for a 
Committee purpose, just to give to the press, based on our 
conversations with the Department of Justice, we do have the 
right to ask questions and to engage in this justification 
process.
    And conspicuously missing from here is the Department of 
Justice, who provides the legal advice and guidance to the 
executive branch.
    Dr. Roe. I think right now you have just defined the 
problem that I have seen develop over the last 6 years here, is 
that how--it is not how we can help you do your job. It is sort 
of how we don't trust the Congress to do its job. We are 
elected to do that. We have a constitutional requirement to do 
what we are doing here tonight.
    With that, I yield back.
    The Chairman. Thank you very much.
    I would, Ms. Regan, want you to explain to me why a member 
of my staff would receive this email from somebody who was 
asking for information regarding the Tridec/Cooper information.
    And it said, ``Here is the reason for the redactions: 
(b)(5), predecisional; (b)(6), privacy concerns outweigh the 
public's right to know; (b)(7)(C), privacy concerns outweigh 
the public's right to know with respect to law enforcement 
records.''
    Is that a proper reason for withholding information from 
Congress?
    Ms. Regan. First of all, we had a letter. Under (b)(9) of 
the Privacy Act, it states that there must be a letter in 
writing, and it says may give the records to the Congress. It 
doesn't say must give the records to the Congress.
    And, frankly, there wasn't trust because 2 days before that 
letter----
    The Chairman. This has nothing to do with----
    Ms. Regan [continuing]. That we gave--what we gave----
    The Chairman. Ma'am. Ma'am. I apologize.
    But this has nothing to do--I don't care if you trust me or 
not. It is not important. What is important is the 
Constitution, the separation of powers, the executive branch 
and the legislative branch.
    And for the witnesses to sit there today representing one 
agency and to imply that you get to make the decision as to 
what information we get to see reminds me an awful lot about 
something we have been watching in the press recently.
    It is not your choice. If we ask for it, we shouldn't have 
this long, flowery conversation about should we get it or not. 
We should get it and not under a camera review. And I 
apologize.
    But your response is that, then, this was an appropriate 
response to a request.
    Ms. Regan. Yes, it was.
    The Chairman. Then, why did they change it and go to a 
deliberative process and trade secret argument?
    Ms. Regan. I didn't make those arguments with respect to 
those records.
    The Chairman. That is what happened with this dialogue. The 
person----
    Ms. Regan. We came up to a have meeting. I think it was on 
January 29. And we went through a list of issues and concerns 
that we had about information. We did not talk specifically 
about that request.
    The Chairman. This came from your Office of Legislative 
Affairs. In case you didn't know, You know, that is who we get 
our information from.
    Ms. Regan. IG information comes directly from the Inspector 
General's Office. We do not go through the Department because 
we are independent.
    The Chairman. No. You--I apologize. This individual, I 
think, is in your Office of Legislative Affairs, but maybe not.
    Do you have an Office of Legislative Affairs?
    Ms. Regan. We have a legislative liaison. Yes.
    The Chairman. Yeah. Okay. Well, this came from that person.
    Ms. Regan. Right.
    The Chairman. Okay. And you assert that that is correct?
    Ms. Regan. Yes, we do.
    The Chairman. Okay. Mr. Bopp.
    Mr. Bopp. Not knowing what was actually redacted--look, the 
problem is this. When an agency takes it upon itself to redact 
information and to assert privileges that do not apply to 
Congress, then you have a problem because you are not getting 
the information you need.
    Now, if there was a relationship between the committee and 
the agency of the IG's office where the IG's office was being 
prompt in delivering information--I don't know if it was or 
wasn't in this case--promptly delivering information and 
raising concerns and asking you, ``Look, we would like to 
redact this information because it is particularly sensitive. 
Are you okay with doing that?'', you could discuss 
accommodations.
    If it just appears in front of you after weeks or months of 
asking for it--and I don't know whether that happened in this 
case--and it is redacted, I can completely understand the 
frustration because that is--these are not privileges that 
apply to Congress.
    The Chairman. And that is what has happened time and time 
again with the agency, whether or not it was this particular 
instance or not, and that is--that is why we are here.
    Ms. Titus, you are recognized.
    Ms. Titus. Thank you, Mr. Chairman.
    I feel like I have fallen down a rabbit hole. There are two 
things that seem to be going on here. One was the stated 
purpose of this hearing, which was to look at how to have 
better communications, more transparency, better cooperation 
between this committee and the VA and IG's office so we can 
better serve our veterans and keep them informed of what is 
going on. That is the primary goal.
    Now, after the scandal in Phoenix, a lot of people thought 
they weren't informed. Fortunately, I was able to talk to our 
local hospital folks and tell our veterans what was going on 
there, but maybe other people didn't have that opportunity.
    I think that is a very worthwhile cause. That is something 
this committee should do, and we have been doing it for the 
past 2 years, how can we work together better. Okay. Fine.
    I think we all might be well served to read this book that 
is on our desk about congressional hearings, when Congress 
comes calling, a primer on the principles, practices, and 
pragmatics of legislative inquiry, and answers a lot of the 
questions about when things are justified, what is First 
Amendment, what is executive privilege, what is right of 
privacy. That is right here.
    Now, the second thing that I am hearing is this attack on 
the IG for something about the Tridec case. Now, we have had no 
hearing on the Tridec case. There was a report issued in 
December. I doubt if many people here know what brought about 
the Tridec case. We have nobody from Treasury to answer any 
questions, nobody from the judicial--judiciary to answer any 
questions, or the Justice Department.
    Ms. Cooper has been much maligned here. Where is she? What 
is her position in all of this? What is the point of all of 
this? Did you all go after her because you didn't like her? 
Should Treasury have not hired her because she had a bad 
reputation? You know, that is all a whole personnel matter that 
is secondary to what we should be addressing.
    And then we have got the law professor--I am not sure what 
you were talking about--and the legal expert who has got 
opinions. That is all it is, opinions. So, you know, somebody 
help me out here. Let's start with the VA.
    Ms. Bradley. We need your oversight. We thank you for your 
oversight. We are dealing in very challenging times. We want to 
be more open and transparent and responsive.
    If I have said anything this evening to suggest that I in 
any way intend to or my team intends to second-guess your 
needs, your requests, I apologize. That is the antithesis of my 
message tonight.
    Secretary McDonald recruited me to take this job. He said 
one of our top priorities must be to restore public trust. And 
so what we are doing, we have built a team that is committed to 
working closely with you, getting you what you need as soon as 
possible, better understanding what you need.
    We are not here to second-guess your motivations or to 
question what you do with the information once you get it. We 
are committed to this. It is essential to our ability to 
restore trust with our veterans.
    I am here to do that and to convey that message. And so, if 
I have misspoken at all in any previous statements, I really 
want to make sure that is the one takeaway point tonight from 
the VA general counsel.
    Ms. Titus. And then can I ask you from the IG's office, 
what if next time one of your former employees gets hired by 
the Department of Agriculture? Are we going to have their IG 
come over and investigate what you all are doing?
    Ms. Regan. I certainly hope not. I am not sure they have 
the authority.
    Ms. Titus. I don't think they do.
    Ms. Regan. I don't think they have the authority to 
investigate us. This is first time this has ever happened, and 
people in the IG community, as far as I have heard, were 
astounded that the Treasury IG issued that report criticizing 
our report.
    Ms. Titus. All right. Thank you.
    Ms. Brown. Mr. Chairman.
    The Chairman. Did you yield back?
    Ms. Titus. I will yield my time to the ranking member.
    Ms. Brown. Thank you. And I am going to be real brief.
    But I think it is very important that we have communication 
with the committee. When something happens to Members' 
families, we need to know, or when we send letters to different 
agencies, so we won't have this confusion.
    And I think where we need to have the confidence that we 
get the information, they also need to know if we are trying to 
get it for purposes that we want to have a--better working 
together with the agencies in oversight or whether or not we 
are just going to release it to the media to sensationalize.
    And I want to tell you I was very encouraged, Mr. Chairman, 
when you have said from the beginning that we are moving 
forward--we are moving forward working for the veterans and 
that we are not--you know, I know you made some statement that 
you didn't really mean about somebody in the press that is 
ignoring some kind of information. I missed that. I know we are 
not putting----
    The Chairman. Thank you very much.
    Ms. Brown [continuing]. Politics in this committee.
    The Chairman. Time has expired.
    I do want to ask Ms. Regan one thing.
    You said that you publish all your reports in your--or at 
least the title of the reports in your semi-annual report to 
Congress?
    Ms. Regan. All reports that are issued are put up on our 
Web site, as required under the IG Act.
    The Chairman. Okay. So help the committee. And I apologize 
because I know it is Dr. Benishek's time.
    But in looking at the semi-annual reports, I don't see the 
March 2014 Tomah report listed and I don't see the 2008 Phoenix 
report described in the semi-annual report.
    So can you explain why they weren't in there.
    Ms. Regan. I was not involved in either one of those. But 
my understanding is they are not issued reports.
    The Chairman. Oh.
    Ms. Regan. They were administrative closures.
    The Chairman. What is an administrative closure 
investigation?
    Ms. Regan. Administrative closure--you would have to ask 
the people responsible. Each our Directorates has the authority 
to do an administrative closure----
    The Chairman. So this----
    Ms. Regan. Let me finish my answer.
    The Chairman. No.
    Ms. Regan [continuing]. And each directorate----
    The Chairman. No.
    Ms. Regan [continuing]. Decides what----
    The Chairman. Ma'am, I am sorry.
    But I want to know what the Phoenix report that was--and 
that was about the wait times--and the Tomah report that we 
will be going and having a field hearing on the 30th of March--
how would anybody know those reports existed or that there was 
such a problem at Tomah or at Phoenix if those reports were 
never made available to Congress? How would we know to even ask 
for those reports?
    Ms. Regan. I am not sure I agree about all the problems. 
Especially in the Tomah report, we had no findings and there 
was only one complaint----
    The Chairman. You don't think there is any problems at 
Tomah?
    Ms. Regan. There was one complaint about Tomah in 2011. And 
at the time they did the administrative closure, which was, 
what, 3 years later, there were no other complaints about 
Tomah.
    The Chairman. So it is your----
    Ms. Regan.
    The Chairman. It is your----
    Ms. Regan. But I did not administratively close that 
review.
    The Chairman. It is your testimony, then, that there are no 
problems at Tomah because the report clears them?
    Ms. Regan. I said we did not have any findings at Tomah.
    The Chairman. Okay. Thank you very much.
    Dr. Benishek.
    Mr. Benishek. Thank you, Mr. Chairman.
    Ms. Bradley, on February 10, 2015, we held a hearing in 
this committee on the issues at the Greater Los Angeles VA 
Medical Center.
    During that hearing, I asked Dr. Skye McDougall, the acting 
director of the Pacific Healthcare Network, what the average 
wait time was for new patients at the LA facility, and she told 
me it was about 4 days.
    Two days ago CNN released a report saying that that claim 
was simply not true. This is according to internal VA documents 
stating that the actual wait time was 48 days.
    I also asked about wait times for mental health patients at 
the facility and was told that it was also roughly 4 days. And 
according to the same CNN report, that number is more like 36 
days. I think this illustrates the problem that we are having 
and why this hearing is important.
    Was Dr. McDougall misinformed or was she deliberately 
trying to misrepresent the new patient wait time at the 
facility?
    Ms. Bradley. I have been thinking about that issue. I saw 
the CNN clip myself. And I wonder, if you all want accurate 
information that is granular----
    Mr. Benishek. We would like accurate information. I will 
tell you that right now.
    Ms. Bradley. Then, you would get that in a briefing. If you 
ask a witness a question----
    Mr. Benishek. But you understand, if you don't know the 
answer, you can always say ``I don't know.''
    Ms. Bradley. No. What I am saying is that----
    Mr. Benishek. No.
    Ms. Bradley [continuing]. She provided granular 
information.
    Mr. Benishek. The answer that she gave was 4 days, and that 
was inaccurate.
    So was she misinformed or was----
    Ms. Bradley. See what I mean?
    Mr. Benishek [continuing]. She just making up an answer? Is 
that allowed? Is that what you think? If you don't know the 
answer, you should just make one up?
    Ms. Bradley. See, this----
    Mr. Benishek. You just said that.
    Ms. Bradley. This is exactly why----
    Mr. Benishek. When you are in a hearing and you don't know 
the answer, you give an answer. Is that--that is your 
testimony.
    Ms. Bradley. My testimony is that----
    Mr. Benishek. No. You just told me.
    Ms. Bradley [continuing]. It is not appropriate for you to 
badger me into answering a yes or no question. I am saying that 
what you need from her and from all of us at the VA----
    Mr. Benishek. No. That is enough of that.
    Ms. Bradley [continuing]. Is accurate granular information.
    Mr. Benishek. No. I am talking now.
    Ms. Bradley. She is probably accurate on one----
    Mr. Benishek. Can you clarify in writing for the record 
what the actual new patient wait times are----
    Ms. Bradley. Yes.
    Mr. Benishek [continuing]. At the LA facility?
    Ms. Bradley. Yes, I could. And I----
    Mr. Benishek. In that clarification----
    Ms. Bradley [continuing]. Think that would be helpful----
    Mr. Benishek [continuing]. Could you please provide 
evidence of what precisely explains how wait times for new 
patients at the time of Dr. McDougall's testimony were about 4 
days. Could you please explain how that answer about 4 days 
came to be.
    Ms. Bradley. Absolutely.
    Mr. Benishek. Thank you.
    Ms. Bradley. I think that would be helpful to the 
committee.
    Mr. Benishek. Ms. Regan, on February 23, I, along with Ms. 
Brownley, sent a letter to Inspector General Griffin in 
addition to Secretary McDonald.
    We wrote with specific questions on the alleged 
overprescription of opiate pain medications at the VA Medical 
Center in Tomah. We haven't received a response from our 
letter. So I would like to ask you some questions about that 
tonight.
    So, as you know, the IG investigation on Tomah was 
administratively closed. Do you know when the report was 
completed?
    Ms. Regan. If I am not mistaken, I was not--I was not 
knowledgeable about that at the time.
    Mr. Benishek. So you don't know when it was completed.
    Ms. Regan. I think it was February 2014.
    Mr. Benishek. Who has it been released to and when? Do you 
know that?
    Ms. Regan. It was released--I believe it was in July of 
2014, based on a FOIA request from Senator Baldwin.
    Mr. Benishek. Has the entire unedited report been released?
    Ms. Regan. The report has minimal redactions, but it has 
been up on our Web site for some time now.
    Mr. Benishek. How many reports are administratively closed 
every year?
    Ms. Regan. I have no idea.
    Mr. Benishek. Who makes the decision whether or not to 
administratively close a report?
    Ms. Regan. Until very recently, it was the Assistant 
Inspector General for the directorate that was doing the 
review.
    Mr. Benishek. How many administratively closed reports 
within the past 3 years have contained specific recommendations 
for VA action?
    Ms. Regan. I don't know.
    Mr. Benishek. As I understand it, your testimony to the 
Chairman suggests that there was no suggestion for VA action 
within the Tomah report.
    Ms. Regan. I don't recall if there were or not. I didn't 
ask specific----
    Mr. Benishek. Apparently, there are suggested actions to 
the VA within the Tomah report and, yet, it was still 
administratively closed. Is that standard procedure?
    Ms. Regan. I don't know what the standard procedure is 
for----
    Mr. Benishek. Thank you.
    Ms. Regan [continuing]. Each office.
    Mr. Benishek. I think I will yield back the remainder of my 
time.
    The Chairman. Thank you very much.
    Dr. Ruiz.
    Mr. Ruiz. Thank you, Mr. Chairman and ranking member, for 
the opportunity to speak today.
    I am going to just focus on the transparency and making 
sure we get the information that we need because that is of 
vital importance for us. I am an emergency medicine doctor, and 
oftentimes we practice medicine with imperfect information.
    And we understand--I understand the importance of being 
able to have the most accurate information in a timely manner 
in order to make the proper diagnosis in order to provide that 
treatment.
    That same example applies to policymakers in this 
committee, is to have the most accurate information in a timely 
manner so that we can provide the best solutions to the 
problems that exist and then have it implemented by the 
administration.
    Now, my question--we have talked about how we have had a 
new team and new process. So in the spirit of problem-solving, 
in the spirit of cooperation, in the spirit of making sure that 
we focus on these solutions, Honorable Bradley, can you tell me 
a little more about the process and how you will, one, 
prioritize the requests.
    Because I understand, too, sometimes when you are flooded 
with requests, it doesn't help the system produce the 
responses. But how will you prioritize with the direction of 
the chairman and the committee?
    And, two, have you come up with any metrics of success in 
the responsiveness that you want to demonstrate so that we can 
see how things are changing?
    Ms. Bradley. Well, thank you for the question.
    And I would like to tell you that I think what is really 
important is we said before we have responded to the vast 
majority of requests from the committee, but the ones that are 
left are pretty complicated.
    Many times there are broad requests that require us to go 
into, let's say, independent databases or ask for data across 
all of our medical centers or all of our regional offices. So 
what we haven't been doing a good job of and what my commitment 
is to the committee tonight is that we ask you to help us 
prioritize the work.
    It is not up to me. I don't want to make that call. I want 
you all to tell me what you need first and what you want my 
team to focus on first. That is number one.
    Number two, we have a senior--a senior, highly skilled, 
mature person who is going to be in charge of this effort, who 
is going to be kind of the bellybutton so that you can call her 
and she can call you and we can adjust as needs change.
    She is also going to be the focal point in VA. So people 
will get to know her. And when she says ``I need particular 
information and I need it right away'' and ``Oh, by the way, I 
gave you a deadline and I am going to hold you to it,'' it is a 
way for us to inject some accountability, is what I am trying 
to say. Because before it was a kind of, ``Um, I don't know.'' 
It was a decentralized process and nobody was really in charge 
and nobody was really being held accountable.
    I think we can improve dramatically with our new team and, 
also, a more systematic approach and lots more communication 
with this committee.
    Mr. Ruiz. So I understand what you are saying is that you 
have restructured your office in order to provide a mechanism 
for more dialogue with the committee in setting those 
priorities under our discretion----
    Ms. Bradley. Right.
    Mr. Ruiz [continuing]. So that you can start to tackle one 
at a time.
    Now, how about the metrics? Like what are you going to be 
able to hold up in agreement with the committee to show that 
things are improving or not improving and then we--if they are 
not improving, then we have the responsibility to hold all of 
you accountable? So what are those metrics that you are going 
to be employing?
    Ms. Bradley. Well, I think the committee's satisfaction is 
important to us, and I think that will be measured by our 
timeliness and whether the information that we provide you is 
responsive to your needs.
    Mr. Ruiz. As you have repeatedly seen in our committee, 
committee satisfaction is very subjective. So I would highly 
recommend that you have something a little more objective that 
we can count so that we--it can be clear as to whether you are 
doing your job or not doing your job in being responsive to 
this committee.
    Ms. Bradley. I agree.
    Mr. Ruiz. I yield back my time, Mr. Chairman.
    The Chairman. Thank you very much.
    And as we ask questions--and I know some of them sound 
argumentative, but, you know, Members have extremely small 
amounts of times with which to ask those questions.
    And, you know, the impression that is being left to the 
committee and anybody that is here watching is that 90 percent 
of the requests have been complied with. That is just not the 
case.
    90 percent of the requests may have been responded to, but 
that doesn't mean that they have been complied with. We still 
have over 63 that are more than 60 days that are out there.
    And I would suggest to the VA that one way to move the 
process forward is to go ahead and give the committee the 
Bradley Stone file and the EEO records that we have asked for. 
There is no need for delay. We have been very clear in exactly 
what we have asked for.
    And you were correct. I mean, Ms. Bradley is new, and she 
is trying to set up--but we are--we have got to plow old 
ground, too, because there is a lot of stuff that is out there 
that this committee has been looking at for a long period of 
time.
    So, with that, I just want to also extend our deepest 
sympathies and condolences to our colleague, Mr. Huelskamp, 
upon the loss of his father last week. We are glad that you are 
back here with us, even if you are a little under the weather.
    But, Dr. Huelskamp, you are recognized.
    Dr. Huelskamp. Thank you, Mr. Chairman. I appreciate those 
comments. I certainly appreciate the opportunity to ask a few 
questions this evening as well.
    I would like to follow up on Dr. Benishek's line of 
questioning. He outlined a statement that was made in this 
committee by the VA, that a CNN report says it is simply not 
true. Let me outline a few other statements that are not just 
to the committee, but to the American public, rolling back in 
the last year.
    On April 30, 2014, former VA Under Secretary for health 
Robert Petzel said there was ``no evidence of a secret list in 
Phoenix.'' That, of course, turned out to be very false.
    In a May 23, 2014, report, former Phoenix VA Director 
Sharon Helman and current Phoenix VA Chief of Staff denied 
there was a secret list in Phoenix. Those statements turned out 
to be false.
    In a December 15, 2014, report, the inspector general 
documented how VA officials have misled Congress and the press 
regarding deaths related to delays in VA medical care.
    And then most recently, on February 15, 2015, on a national 
appearance on Meet the Press, VA Secretary Bob McDonald said 
the VA had fired 60 people due to wait-time issues. That 
statement was also false.
    Ms. Bradley, how do you explain how so many VA officials 
have been caught misleading Congress, the press, and the 
American people?
    Ms. Bradley. Certainly does draw our attention to our need 
to be much more clear and accurate in what we provide to the 
public and to you and to our veterans.
    So I don't have any other comment other than there is no 
way for us to restore trust unless we are more careful about 
specific facts, numbers, and information that we provide.
    Dr. Huelskamp. 60 people fired. That is a very specific 
fact. The Secretary himself stated that. You were obviously 
working for him then.
    Did you approve that statement? Did he just make that up? 
Did he get confused between 4 and 60? Explain that a little bit 
more, if you would, please.
    Ms. Bradley. I really can't say what he was thinking about. 
He may have been using numbers of people who had been removed 
for other reasons and merged the two. I don't know that.
    Dr. Huelskamp. Was there a statement following that by the 
VA that said ``No. We made a mistake'' or ``We misled''? I have 
not seen the follow-up statement from the Secretary.
    Ms. Bradley. Yes.
    Dr. Huelskamp. Because that statement is put--is that 
statement true?
    Ms. Bradley. I believe there was a statement that was made 
from the VA for a followup.
    Dr. Huelskamp. The statement that he fired 60 people, is 
that true, that he made on Meet the Press?
    Ms. Bradley. As far as I know, it is not true.
    Dr. Huelskamp. So why would he make such a statement?
    Ms. Bradley. I don't know. I don't think it is fair to 
say----
    Dr. Huelskamp. You said he issued a statement about his 
statement?
    Ms. Bradley [continuing]. He made the statement up. I 
really think you should ask him about it.
    Dr. Huelskamp. He is not here. You are the general counsel 
for the VA. You are asking us to trust you. To me, this is the 
most misleading statement I have heard made, probably, in my 4 
years on this committee. Meet the Press. 60 people fired. That 
is not true at all. You agree it is not true.
    Can you tell me what the Secretary's statement was.
    Ms. Bradley. I didn't say that 60 people weren't fired. I 
said that he misspoke when he said that 60 people were fired 
because of access issues.
    So it may be, in fact, that there were 60 people fired. 
They just weren't fired for access issues. I don't know that 
for----
    Dr. Huelskamp. So there were 60 people fired? You don't 
know that?
    Ms. Bradley. I don't know that----
    Mr. Hueskamp. And you are asking me to trust.
    You were working for the VA at this time, on February 15?
    Ms. Bradley. I was.
    Dr. Huelskamp. And you want us to trust you, but you can't 
answer or explain away this statement about 60 people that was 
patently false.
    Ms. Bradley. Again, you should ask Secretary McDonald about 
that statement.
    Dr. Huelskamp. He is not here. Ma'am, if you want trust to 
be restored----
    Ms. Bradley. I can't speak for him, though.
    Dr. Huelskamp. I have been----
    Ms. Bradley. That is the point.
    Dr. Huelskamp. Where were you before you came to the VA?
    Ms. Bradley. I was at the Department of Defense.
    Dr. Huelskamp. Department of Defense.
    Ms. Bradley. Yes.
    Dr. Huelskamp. Did it astound you? Did you get worried and 
upset when you heard about waiting lists in Phoenix and 
veterans possibly dying because of waiting lists? Did that 
upset you?
    Ms. Bradley. I was obviously so committed to come back to 
the VA. I served as the general counsel in 1998. I served for 3 
years.
    Dr. Huelskamp. Did that upset you?
    Ms. Bradley. It did.
    Dr. Huelskamp. I will tell you what the committee's 
perspective was. We had VA officials sitting right in those 
chairs. They said there was no waiting list. And people were 
dying because of that. And I believe they lied to the 
committee.
    And this will be my request, Mr. Chairman, from the 
committee, an official request, for each of these five 
statements, including the one from my colleague.
    I would like a written statement, an explanation of whether 
or not this was a false statement or not and how your 
Department, if it was a false statement, repaired that breach 
of trust.
    Would you be willing to provide that to the committee?
    Ms. Bradley. I will ask the Department to provide it. Sure. 
Absolutely.
    Dr. Huelskamp. You will ask--you are the Department 
representative here, ma'am.
    Ms. Bradley. I won't----
    Dr. Huelskamp. Yes or no. You will provide it or not?
    Ms. Bradley. I can't answer on behalf of the Secretary. 
But, yes, I will make sure that you get that answer.
    Dr. Huelskamp. So the answer is, yes, you will provide 
that?
    Ms. Bradley. Yes.
    Dr. Huelskamp. Okay. I appreciate that.
    Mr. Chairman, as we have discussed here, the key word is 
``trust.'' And until these misleading statements and, I think, 
are patently false--and we have heard so many of these for 4 
years, and these have to be cleared up.
    And, again, I appreciate you calling the hearing tonight, 
Mr. Chairman. I yield back.
    The Chairman. Thank you, Mr. Huelskamp.
    I will say that I did speak directly with the Secretary 
regarding those comments. He did tell me that he had misspoken, 
that the statement was not accurate in the way he had phrased 
it. But I will leave it to Ms. Bradley to see if she can get 
any more on that.
    Also, for the record, this committee has been clear. It was 
40 veterans died while waiting on the list, not because they 
were on the list.
    Ms. Kuster.
    Ms. Kuster. Thank you very much, Mr. Chairman. And thank 
you for the opportunity to address our witnesses today.
    I just want to join the comments of my colleague, 
Representative Titus, that I do feel that we have sort of 
dropped into a black hole with regard to the notice of this 
hearing and some of the topics that are being covered because 
we haven't had a hearing notice on the specifics of this other 
matter that has come up today.
    So I want to direct my remarks to what was noticed in this 
hearing, and this is generally on the issue of transparency. 
And I want to start with our--I presume expert witnesses were 
called by the chair because there has been a lot of discussion 
about accommodation.
    And I want to ask Attorney Bopp, in the circumstance of 
committee staff releasing documents directly to the media 
without those documents coming to members of the committee--
these are documents that I have not had the opportunity to see. 
I don't believe my colleagues in the minority--letters that 
have been sent where the minority has not been even copied, the 
ranking member even copied on the request for documents that 
were asked for--we didn't hear about it till many, many weeks 
later. Frankly, I have just heard about it today. And I am 
hearing reports at this hearing that staff members are 
releasing these documents directly to the media.
    In that circumstance, under your legal advice to a Member 
of Congress, how would you recommend this accommodation?
    Our chair has said--and I want to quote this accurately 
because this is a blanket statement--there will be no in-camera 
review. So he has taken that off the table as any type of 
accommodation of people that are trying to reach--trying to 
develop the trust.
    Here we have a new effort, a new Secretary seeking and 
recruiting a new legal counsel so that we can have a new 
process to reestablish trust, and, yet, we have taken this in-
camera review off the table because they want, quote-unquote, 
to hold the documents.
    Well, it seems to me they want to hold the documents 
because the staff is going to give them to the press. What 
would you recommend to me as----
    The Chairman. Would the gentlelady yield?
    Ms. Kuster. No. I am sorry, Mr. Chairman. I won't yield. I 
would like to hear the advice that I would get from counsel as 
to how I would possibly handle this.
    And, by the way, I come from The Granite State, where 
privacy is of primary concern. I represent veterans who care 
about not just their Social Security number. They care about 
their personal private information.
    The topic that we talk about more often than not in this 
committee, PTSD--they can't even come forward to get the 
medical care that they need, and now we are going to start 
spreading this information around publicly? So just what advice 
would you give me?
    Mr. Bopp. I would say, first of all--look, it is a good 
question. I don't know the facts as you lay them out. But let's 
assume the facts, as you lay them out----
    Ms. Kuster. You know as much as I know. We both have been 
in this room.
    Mr. Bopp. Sure.
    Ms. Kuster. This is as much as we know.
    Mr. Bopp. Okay. The House rules and committee rules don't 
contemplate committee staff--don't contemplate committee staff 
providing information--committee information directly to the 
press.
    Ms. Kuster. And that is the problem. I mean, that is the 
situation we have. So if an accommodation would be an in-camera 
review because you want to limit the release of private 
personal information to the press, but that has been taken off 
the table because the chair refuses in-camera review, then 
where are we?
    Mr. Bopp. I would say this. There really ought to be more 
of a discussion at the front end of a request for information 
from the committee with an agency and that that front-end 
discussion ought to include what information is available, how 
long it will take to provide that information, and then how 
sensitive that information is. And, at that point, that is the 
time to discuss accommodations.
    And I don't know--again, I don't know what is happening 
here exactly, but it is not the time to start discussing 
accommodations 3 months in or 60 days after a request is 
already received.
    But you are right. I mean, there ought to be a discussion 
of the sensitivity of the information, how long it will take to 
provide the information, and what is available on--at the front 
end.
    Ms. Kuster. And just--if I can ask one quick question----
    The Chairman. The gentlelady's time has expired. Thank you 
very much.
    I would also----
    Ms. Kuster. I will ask you the question another time.
    The Chairman. I will also tell you that the information 
that----
    Ms. Kuster. I am sorry. This is----
    The Chairman. Well, let me finish.
    Ms. Kuster. You are now taking my time.
    The Chairman. No. Your time is expired.
    What was released to the press was a letter that was 
written to me as the chairman. I have the authority to release 
letters that are written to me. You are making--no, ma'am.
    Ms. Kuster. I am simply saying is there a reason----
    The Chairman. No, ma'am.
    Ms. Kuster [continuing]. that we wouldn't accommodate this 
issue? And, obviously, that is what has created the lack of 
trust.
    The Chairman. No. Unfortunately, the lack of trust has been 
long developing in this process. I can assure----
    Ms. Kuster. Well----
    The Chairman. Ma'am----
    Ms. Kuster [continuing]. Then, it doesn't seem to----
    The Chairman [continuing]. I can assure you that the 
problem that exists here today is a lack of trust. We are 
attempting to correct that. The Secretary is doing everything 
that he can in hiring a new general counsel, making changes.
    But we also--you know, what is interesting is everybody 
wants to focus on improving the VA by improving transparency, 
but we are leaving off the first part of this, and it is called 
the power of legislative inquiry. And that is what we are doing 
here today.
    Mr. Coffman, you are recognized.
    Mr. Coffman. Thank you, Mr. Chairman.
    If I can, let me refer something to our two legal experts 
here today, Mr. Tiefer and Mr. Bopp.
    The construction of a VA hospital is in my district. It is 
hundreds of millions of dollars over budget, years behind 
schedule, and this committee has done some inquiries to find 
out how things got so messed up, I guess, to put it mildly.
    And so we requested a report--a risk assessment that the VA 
did, and they did not provide it because they were concerned 
about a more--quote-unquote, more public review. I think they 
were willing to do it in camera.
    Could you both comment on that in terms of our oversight 
responsibilities and the VA's response.
    Mr. Tiefer. As I said in my written testimony, not only is 
the Trade Secrets Act, which is the only legal provision that 
is being invoked here, not some basis to withhold from 
Congress, because it says you can withhold, you can keep 
materials unless you are being asked by someone, quote, 
``authorized by law,'' and you are authorized by law. So it is 
not a statute that was meant to keep things from Congress, and 
it doesn't.
    More broadly, and more common sense, procurement is like 
one of the main things that all the committees of the House get 
into because everybody's got some department, and their 
department does procurement, and their procurement is screwed 
up, and so the idea that there is a barrier to doing oversight 
over procurement, it is a novel discovery in a situation where 
there have been hundreds of previous times it wasn't there.
    I am going to say this, which is, if there is this terrible 
concern that a certain piece of paper's numbers--certain 
numbers on this, should be very closely held, you provide a 
document that is redacted other than those very numbers, you 
bring the numbers up, and you present the case, do you want 
these numbers in writing, or can we just show you the piece of 
paper and where the numbers fit? And at that point--but not--
you discuss them at great length of time and distance in-camera 
as a general theory. You bring the paper up to the committee.
    Mr. Coffman. Mr. Bopp.
    Mr. Bopp. I agree with Professor Tiefer.
    Mr. Coffman. Ms. Hadley--Ms. Bradley, I am sorry, the 
Congress of the United States, is going to have to vote on 
lifting the cap on this hospital soon. By sometime next month, 
we will be beyond the authorized cap, and we are going to have 
to do some sort of supplemental appropriation for a hospital 
that is hundreds of millions of dollars over budget and years 
behind schedule. If you are not willing--if the VA is not 
willing to provide the information to Congress on how we got to 
where we are, how is Congress supposed to make that decision?
    Ms. Bradley. We didn't know when we offered in-camera 
inspection that that didn't meet your needs.
    Mr. Coffman. But that wasn't the request. The request was 
for the document, and it is the power of Congress, the ability 
to ask for that document. And so your position is, well, we 
will decide what information we want to give Congress, and what 
information we don't. And you are here trying to create a new 
environment of trust. How can we trust you?
    Ms. Bradley. Well, just by telling me that you would like 
to see the risk assessment and that an in-camera inspection----
    Mr. Coffman. It was in writing. The request was in writing.
    Ms. Bradley [continuing]. And then we will do it. And we 
will talk about it, and if you tell me that is your need, we 
will do it.
    Mr. Coffman. The request was in writing.
    Ms. Bradley. I am just answering your question. Tonight is 
the first night----
    Mr. Coffman. You are saying that a request in writing isn't 
good enough?
    Ms. Bradley. We offered it. We came back through the 
accommodation process and said we understand what your request 
is. Because of the sensitive pricing information, that could 
really go to making a deal in which the taxpayers suffer, we 
said would you be willing to accept an in-camera inspection? 
And as far as I know, we never heard that you weren't willing 
to accept that. Now we have heard that. This is what 
accommodation is about. You tell us no, an in-camera inspection 
of the risk assessment is insufficient. We would like the 
document. And then we go from there.
    Mr. Coffman. When can I get the document?
    Ms. Bradley. Got it.
    Mr. Coffman. Okay. Thank you. Mr. Chairman, I yield back.
    The Chairman. Mr. O'Rourke.
    Mr. O'Rourke. Thank you, Mr. Chairman. To Ms. Regan, I just 
want to make sure I have the dates on some of these correct. 
The VA OIG publishes the Tridec report on what day?
    Ms. Regan. I believe it was December 8, of 2014.
    Mr. O'Rourke. December 8?
    Ms. Regan. Yes.
    Mr. O'Rourke. Of 2014. And then the VA committee requests 
the Tridec report on what date? Or what day did you receive 
that request?
    Ms. Regan. The letter was dated January 7.
    Mr. O'Rourke. Okay. And then what day did the VA Committee 
receive the Tridec report?
    Ms. Regan. The Tridec report--the report itself was given 
to the committee the day it was issued.
    Mr. O'Rourke. Okay.
    Ms. Regan. We sent copies up here the same day to the four 
corners.
    Mr. O'Rourke. Okay. On the chairman's concern about the 
fact that Ms. Cooper was alleged to have committed serious 
misconduct, was less than candid, who had potentially steered 
multi-million-dollar contracts to people that she knew that 
were not noncompetitive. What is the proper way for her next 
employer in the Federal Government, the Treasury Department, to 
learn of these accusations?
    Ms. Regan. I would hope that the agency hiring the 
individual would have vetted her through her former employer, 
or current employer. We don't know what happened with regard to 
that. Sometimes reports just kind of overlap, and it is a 
surprise somebody's leaving. So if they, and I remember with 
the report involving FedBid and Ms. Taylor, I think the agency 
gave the report to the future employer, and then the hiring was 
cancelled. But we didn't know Ms. Cooper was leaving, and the 
report hadn't been finished yet at that time.
    Mr. O'Rourke. Okay. So the onus would be on the future 
employer to look over her work history, call her former 
employer.
    Let me switch to Ms. Bradley. On this question of the 
outstanding requests from your office, and the chairman 
disputes your 94 percent completed, and I think that should 
certainly be worked out. I would love to understand the 
resolution of that. You said that we should assist in 
prioritizing those requests. Why not just prioritize them based 
on when they came in and the longest outstanding? The chairman 
says the committee has 63 requests at 60 days or over. Those 
seem like the ones to attack and resolve.
    Ms. Bradley. It does seem logical, but for example, we 
might get a request for all of the arrests that VA made in 
2014, and then all of the subsequent disciplinary actions that 
were taken as a result of those arrests. So that might take us 
a long time to get. And there might be two or three other 
requests that the committee needs immediately for its oversight 
and legislative purposes. I don't know about these priorities. 
I need you to tell me what those priorities are so that we can 
be more responsive to you.
    I can just tell you that some requests are extremely 
onerous. They take a long time and a lot of different people, 
and looking at a lot of different databases in our very 
decentralized organization. So, you know, it may not be to the 
committee's advantage for us to tackle that one if that one is 
at the top of the list. Just in terms of, you know, first in, 
first out.
    Mr. O'Rourke. Let me ask this question. Have you and the 
Secretary met with the chairman and the ranking member on this 
issue of access to information that I think is owed to the 
committee?
    Ms. Bradley. Secretary McDonald has met with the chairman 
twice, and he was accompanied with someone who is part of the 
oversight team, that I have stood up. I have not met with the 
chairman yet. Tonight was my first night to meet him, but I 
know that there were two prior meetings I think relatively 
recently to discuss these issues, yes.
    Mr. O'Rourke. I would, you know, just respectfully 
recommend that a meeting of those four, with the ranking member 
representing the minority committee members on the committee, 
meet to see if we can't resolve this because I think this is a 
legitimate, genuine issue. I think you are hearing the urgency 
from my colleagues about care delayed or denied, hospital 
projects that have gone twice over budget, taking money 
presumably from other districts who have pressing needs as 
well, a history of frustration on our part in getting 
information that we need.
    Now I will say that, but I will also say that under the 
leadership of this Secretary, I have seen a turnaround in 
responsiveness, in transparency, and the development or the 
beginning of a development of a culture of accountability. And 
I see that directly from the Secretary who is personally 
responsive and accountable to requests that I make, so I do 
think that the leadership is there and that the will and the 
intent is there. And Republican or Democrat, we are both 
interested in getting to the same end of serving those who have 
served this country.
    So, this committee is known for its bipartisanship. I just 
hope that we don't lose that. I hope that those four can meet, 
work through these issues. I certainly would support that. And 
so, I appreciate your willingness to join that meeting, and I 
yield back.
    The Chairman. Thank you very much, Mr. O'Rourke. And the 
ranking member and I have just been talking, and if the 
Secretary is available, Ms. Bradley, we are more than happy to 
meet at any time this week that we can mutually agree upon 
because there are scheduling conflicts, I understand. And if 
not this week, you know, maybe we can get together quickly. And 
I think it would be a good thing for us.
    And we did. We sat right here at this table, the Secretary 
and I did, and several of the things we did get accomplished, 
but three weeks ago we were talking about the EEO files, and we 
still don't have the EEO files. So Dr. Wenstrup. Ms. Walorski, 
you are recognized.
    Mrs. Walorski. Thank you, Mr. Chairman. Ms. Regan, in your 
testimony you state that the IG is only required to provide the 
committee semiannual reports, and everything else is subject to 
the IG's discretion. So, is it your position that the committee 
should resort to legislation or a subpoena to get documents 
that we request?
    Ms. Regan. Absolutely not. We have responded with just 
about everything that this Committee has asked for. We are very 
open. We do briefings. We give information to the Committee. We 
keep them updated. We give them copies of the reports before 
they are made public. There are some reports that are even 
going to be listed on the Web site as restricted. There is a 
briefing ahead of time. That is information that is the other, 
in the IG act. But we do keep this committee currently 
informed.
    We have not taken the position that we don't have to saying 
anything or we don't have to give anything else, but when you 
go to the specific language in the IG Act, as you go through 
what is required versus discretionary, that is all it says; and 
we do keep this committee fully informed.
    Mrs. Walorski. Yeah, I have only been on the committee 3 
years. I am one of the younger members of the committee. And it 
has amazed me when we put requests in for information as 
individual members or through the committee and then sometimes, 
you know, just continually asking and asking and asking, I 
asked a question 7 months ago that I was just actually made 
aware of, we finally got the answer tonight before this 
hearing, 7 months.
    And, I guess I would direct this to you, Ms. Bradley. You 
know, I had a horrible situation develop in my district last 
week. It was in Indianapolis VA Hospital. And there was the 
medical center director, who basically is in charge of 
administering the mental health programs, the lifelines to 
veterans who desperately need help and are often suicidal. She 
sent an email out mocking the veterans that she was charged to 
serve, and the photos that she sent in this email depicted a 
toy Christmas elf as a veteran pleading for anti-anxiety 
medication, and then hanging himself with a strand of Christmas 
lights. The employee in question has been placed on paid on 
administrative leave and will eventually be coming back to 
work. The medical center director is telling me that they have 
responded, but he can't comment on any disciplinary actions, 
and I am operating on his word. Because I only have his word, I 
need documentation they are responding appropriately; and for 
sure this committee needs documentation that they are 
responding.
    So, based on what I am hearing tonight, you are telling me, 
or are you telling me, that if this committee wanted to see 
documentation in regards to the disciplinary handling of this 
employee in question, what we would need to do is go to your 
headquarters, review documents on-camera in the presence of a 
VA staff. Is that what you are saying if we wanted additional 
information on how this was handled?
    Ms. Bradley. No. Absolutely not. That is not what I have 
said for the entire----
    Ms. Walorski. So what would be my step if--and I guess--and 
let me just say this. Here is the caveat to this whole thing 
is--I have only been here 3 years, and it has been a disaster 
after disaster after disaster. And the reason I think folks 
like me are so passionate and can get emotional about this, is 
because we are fighting in many cases, and I have had to do 
this myself with the new Secretary, and he absolutely responded 
as Representative O'Rourke mentioned. But we are fighting for 
the lives of people. I mean, I have been in life and death 
situations with veterans in my district, and all this is 
surrounded by the fact that you and I both work by the 
taxpayers' money that they are investing and asking us to be 
good stewards of. We are elected to be able to be involved in 
an oversight question and answer to be good stewards of the 
money given us by the taxpayers of this country, who at many 
times in my district are hard, hard workers, double income, and 
we have 54,000 veterans plus their families in my district.
    So, you know, I get very passionate about this because if 
we are not sitting here in the 3 years I have been here 
fighting, having to sit and listen sometimes to ridiculous 
answers, and then waiting 7 months to get an answer and then 
something happens in my State, State of Indiana, and it is 
horrific. I think this employee should be fired. I am 
questioning whether the executive director should still be the 
executive director, having that email in his hand for 3 months. 
These are the kind of things.
    This is reality in my world as one member of this 
committee. This is reality, when people ask me what I do, I 
tell them I fight for veterans every day. And I will say 
Secretary McDonald has gone out of his way and he saved the 
life of one of my veterans. But, that is why it is so 
frustrating, and to say to you how do I get information on this 
case? How do I know this woman was put on administrative leave? 
How do I know she was disciplined? How do I--what do I do? How 
do I get the information? Where is my first step if it is not 
that camera request.
    Ms. Bradley. Forget the in-camera request. Have you asked 
for a briefing? It seems to me we should provide you a 
briefing, like tomorrow, if that is what you want.
    Mrs. Walorski. Okay. Now here is what makes me leery of 
that. I asked a question, and I just got an answer 7 months 
later, 7 months. The history of what the VA has been able to 
deliver to this committee is months if not ad infinitum. That 
is why it is so hard for me to sit here and say to you, yeah, I 
want a briefing tomorrow. I will take it. Can you deliver me a 
briefing tomorrow in the Indianapolis case?
    Ms. Bradley. I think I can.
    Mrs. Walorski. All right. I--Okay.
    Ms. Bradley. I am passionate and am thrilled that you are 
passionate and you have a right to get a briefing about this 
like in realtime.
    Mrs. Walorski. What time tomorrow, and how soon can you 
tell me what time? This is real news. This is real in our 
district, and in our State. Not my district, but certainly my 
State. My veterans go to that hospital. Can we get a briefing 
tomorrow?
    Ms. Bradley. You can get a briefing tomorrow, yes. I think 
we can arrange that.
    Mrs. Walorski. And so I am giving you the request right now 
right? I appreciate it. Thank you. I yield back my time, Mr. 
Chairman.
    The Chairman. One of the things that bothers me, Ms. Regan, 
is you are leaving the impression that the IG has responded to 
all of our requests, given the impression to the Members that 
when we ask for something, we get everything we ask for. Again, 
and I know, Ms. Kuster and others have said they don't know 
about the Tridec-Cooper report. What I got, was 27 pages with 
at least a paragraph or more redacted, 15 where the entire 
page, if not most of it, was redacted and whole pages missing. 
So, again, that is where the transparency problem exists is we 
are leaving the impression that we are getting what we are 
asking for, and we are getting half of what we are asking for. 
And I am willing to accept what has been said tonight, and I 
think the committee wants to accept it so we can move forward.
    And as I said earlier, you know, the impression again that, 
you know, with the Tridec-Cooper issue, we did not release 
anything to the media, except my letter that I got from the 
OIG, which of course any of us are within our own rights to be 
able to release that, but I am just letting you know, just 
because they send us a package like this, doesn't mean we are 
getting what we are asking for. Ms. Rice.
    Miss Rice. Thank you, Mr. Chairman. So, I know Ms. Walorski 
said she has only been here for about 3 years. I have been here 
for about 5 seconds compared to you. So, and given my 
background as a prosecutor, I guess my question could probably 
be an obvious one, but I am going to direct it to Ms. Bradley 
and Ms. Regan. The responsiveness to the chairman's request or 
alleged lack thereof, is that an attempt at a coverup on either 
one of your parts regarding potentially negligent, criminal 
behavior, et cetera, on anyone's part at the VA. Ms. Bradley, 
yes or no?
    Ms. Bradley. Absolutely not.
    Miss Rice. and Ms. Regan.
    Ms. Regan. Absolutely not.
    Miss Rice. Okay, so then from that point I guess what we 
can do is I take you at your word, and I am sure everyone on 
this committee does. I think that was a direct question that 
has to be asked, and I appreciate your answer. And I think then 
that what we have to deal with is obviously the bureaucratic 
steps that need to be taken in order to answer the chairman's 
request for information or any member of this committee's 
request for information, and there is one simple reason, 
because that is what the men and women who are brave enough to 
put on a uniform and go fight for all the freedoms that we 
enjoy every day, that is what they deserve.
    I appreciate both of your presence here today, and I am 
sure that you are going to, my hope is that you are going to 
continue to ensure that whatever is going wrong at the VA is 
made public so that we can go forward and serve the men and 
women that so dearly deserve the help that they need.
    Thank you, Mr. Chairman. I yield back my time.
    The Chairman. Thank you. Dr. Abraham.
    Mr. Abraham. Thank you, Mr. Chairman. Ms. Bradley, thank 
you and you your family for your service.
    I want to echo, some of what Dr. Ruiz and Dr. Roe said. It 
is not you all's job to tell us what we need when we ask for 
it. We are fairly intelligent enough to know that if it is 
private information, then it is to stay private. I am assuming 
that you or someone on your counsel, your team, decides what is 
private information and what isn't.
    You inferred that mental health, and certainly we 
understand that, but day end, you are making that decision. 
Well, I think we are quite capable of making that decision 
ourselves. So, I want to echo what Dr. Roe was saying that, 
that what we ask for when we ask for records, we expect to get 
the records, and we can make that decision.
    I am looking forward to the two cases that you have cited 
where information was possibly leaked from members of this 
committee, and I would like to see the circumstances regarding 
that, but then that also goes back to a trust issue for us. You 
have to trust us to a point, and this is a new committee this 
year. And I don't think there has been any information leaked 
from this committee on the 114th Congress.
    In reference to Mr. Ruiz' comments, I totally agree that, 
you know, you also said that we need timely, systemic, 
objective data. But, again, who decides what timely is? Who 
decides the system? So, we do need a template of sorts to check 
the box as to what time is, what we can get from you guys, when 
we can get it, because again, we are talking subjective. We 
need to get objective because, like Ms. Walorski said, we are 
talking about lives here, and sometimes time does matter.
    So, I guess the question, and with the nod of your head, I 
think you have probably answered it, that your team so to 
speak, heretofore has made the decision what to redact on these 
reports that we asked?
    Ms. Bradley. That is correct.
    Mr. Abraham. Okay. And there are no physicians per se on 
your team, that wouldn't understand the health issues that some 
of it could be private information and some that may not be?
    Ms. Bradley. Yeah. Let me give you one example. You said 
that, you know, we can share that private information with you. 
Our question that we must ask as the executive branch is, do 
you need that information?
    Mr. Abraham. But again that is not your----
    Ms. Bradley. Can I give you an example?
    Mr. Abraham. But I don't think that is your call.
    Ms. Bradley. I don't mean it in a way----
    Mr. Abraham. I think that would be our call.
    Ms. Bradley. Right. So here is an example. So in a 
veteran's file who commits suicide, there is extensive personal 
information, about the veteran's child, about the veteran's 
child's incarceration, drug addiction, attempted suicide. It 
may in fact be, that this committee does not have use for that 
information.
    Mr. Abraham. But how do you know that?
    Ms. Bradley. I don't.
    Mr. Abraham. Okay so I----
    Ms. Bradley. Exactly----
    Mr. Abraham. And I think that is where the debate begins.
    Ms. Bradley. That is why I would ask you do you need that 
information----
    Mr. Abraham. We might.
    Ms. Bradley. About the child, and then you would say----
    Mr. Abraham. We might.
    Ms. Bradley. Yes, we do----
    Mr. Abraham. Yes.
    Ms. Bradley. And we would provide it. But you might say, 
you know what, it is not pertinent to our oversight request and 
we will have been doing our part to protect that private 
information if in fact, you don't need it.
    Mr. Abraham. But that is a judgment call on your part.
    Ms. Bradley. But you--no, for you to make. To help----
    Mr. Abraham. But, we also must have say in what is 
pertinent information and what is important here.
    Ms. Bradley. So we will share it with you.
    Mr. Abraham. So what you are telling me is that you are 
thinking that maybe your team's judgment overrides ours, or is 
more important. And I understand that. We want to make sure 
that we are on the same page here. And I yield back, Mr. 
Chairman.
    Ms. Bradley. Okay.
    Mr. Abraham. I yield back, Mr. Chairman.
    The Chairman. Thank you. In any of these requests that the 
committee has made, I am not aware of one single time that the 
department has asked us about a child or arrest record or 
anything like that. I think common sense would dictate, you 
know, but, we are the ones sometimes--we will have to take all 
of the information because if we let somebody know exactly what 
we are looking for, they may be tipped off within the 
department, or somebody could be identifiable.
    So, I agree, a communication and dialogue that has not 
existed. Again, we are still waiting on the Bradley Stone file. 
We are still waiting on the EEO file. You know, we don't have 
those. I look forward to getting them but----
    Mr. McNerney, you are recognized.
    Mr. McNerney. Thank you, Mr. Chairman. It is clear to me 
that every single person on this committee is determined to get 
our hands on the information we need to perform our oversight 
responsibilities, and Dr. Roe was right on when he said that if 
there was excess expenditures on construction that could have 
been used to help our veterans, then that is what we would be 
paying our taxpayers back and paying our veterans back. So, you 
can find that we are going to be interested in finding a way to 
get that information.
    Now, we have heard about two types of sensitive information 
so far that the VA can be cautious about releasing. One is 
personal information, and the other is sensitive bidding 
information. Is there any other type of information or reason 
for not being forthcoming, or for being reluctant to be 
forthcoming?
    Ms. Bradley. I am glad that I can answer this question. I 
hate for it to be cast in the light of that we are not 
forthcoming. For example, we have an office called the Office 
of Accountability Review, and its primary purpose is to conduct 
administrative investigation boards. And so if you were to ask 
us for a draft report that had been prepared by the 
Administrative Investigation Board, we would push back and say 
let's talk about it because it is not a final report, and it is 
going to lead to discipline that the Secretary or other 
officials may want to take. So we have to do everything in our 
power to make sure that we have righteous investigations, that 
we have righteous administrative actions, and that when we take 
those actions, they will stick either in court or at an 
administrative body like the EEOC, or the MSPB, so that would 
be internal deliberative decisionmaking kinds of documents that 
we wouldn't want to provide to you while they are ongoing. That 
would be another good example.
    Mr. McNerney. Mr. Bopp, do you believe that it is credible 
that there is communication problems, that have gotten us here 
that could have been avoided with proper communications? Do you 
believe that is a credible claim?
    Mr. Bopp. It does not appear to me that is certainly the 
only cause of the problems. I mean, there may be communications 
barriers or problems between the committee and the agency, but, 
what I am gathering is that there are--it appears that there 
are attempts to find sort of ways to getting to know. And 
bringing up potential ways or reasons not to provide 
information to the committee, that are very clearly reasons 
that are not legally defensible, I see as the core of the 
problem.
    Mr. McNerney. Do you have any recommendations, or will you 
be able to produce recommendations that will help solve this 
problem?
    Mr. Bopp. I am not sure I can, you know, solve the problem, 
but yes, absolutely. I think one of the key recommendations is 
at the very front end if discussions need to be had and there 
is not enough discussion going on between the agency and the 
committee as far as, you know, what information is being 
sought, where that information is, how long it is going to take 
to produce, those communications, those discussions should take 
place right away, not after 60 days, not after 90 days. If 
those communications occur at the front end, and it appears 
from today's discussion that there is a desire to have those 
communications, if they happen early on, I think a lot of the--
presumably a lot of the problems that have been occurring can 
be alleviated.
    Mr. McNerney. Well, Mr. Chairman, we could include that in 
a protocol then when we request information.
    I have a weird question. Ms. Regan, have you been charged 
with investigating the department on lack of responsiveness to 
this Committee? And if you hadn't, how would you investigate, 
how would you go about answering that question?
    Ms. Regan. We have not as far as I know. And there would be 
a request, would come in to the Deputy Inspector General, and 
we would look at that and probably conduct an audit or other 
review. Usually, we get a lot of requests from the Hill, and we 
usually conduct some kind of a review or investigation based on 
those requests.
    Mr. McNerney. Would your department be capable of 
conducting that kind of an investigation?
    Ms. Regan. I would think so.
    Mr. McNerney. Mr. Chairman, I yield back.
    The Chairman. Thank you. Ms. Brown.
    Ms. Brown. Yeah, I have a question for Ms. Bradley. Ms. 
Bradley, we have not met. And nice meeting you. I am sorry this 
is the first time we have got a chance to meet. But we have had 
several meetings with the Secretary, and I want to point out 
your newness and your freshness is very nice, but I think you 
may be overcommitting the VA and overpromising, like tomorrow I 
am going to have a meeting and we are going to discuss this. So 
I think you need to, what is it, back down.
    The Chairman. Stall.
    Ms. Brown. No. I am trying to find a nice word to say 
that--don't overcommit, because when you commit something and 
you can't produce it like tomorrow, then it will be headlines, 
stories tomorrow at 5:00. So I am asking you to kind of back, 
back, slow down, catch your breath. You are refreshing. We are 
looking forward to working with you, the chairman and I. We 
have had several meetings with the Secretary. In fact, the big 
four have met several times, and I am looking forward to us 
meeting this week if it can be scheduled.
    But, some of the other things that you have committed to 
and committed to do in the next day or tomorrow, I don't know 
that you can do it, so you need to say I am going to try, but 
don't say I am going to do it. It is the worst thing to say you 
are going to do something and cannot produce. So you going try, 
and you going get it done, but you may not be able to get it 
done tomorrow. I yield back the balance of my time.
    The Chairman. Thank you. Mr. Costello.
    Mr. Costello. Thank you, Mr. Chairman. And for the record, 
the Stone matter is in my congressional district, and I want to 
thank the chairman for his vigilance in seeing through the 
records requests, and I may actually have a question for you 
relative to that.
    But first, a more fundamental and constitutional question, 
Ms. Bradley. Yes or no, are you asserting that the Privacy Act 
prohibits you from providing certain records to this 
congressional committee?
    Ms. Bradley. No.
    Mr. Costello. So, the Privacy Act does not bar you from 
providing information to this committee?
    Ms. Bradley. That is correct.
    Mr. Costello. Okay. And Ms. Regan, is that the same for 
you?
    Ms. Regan. Under the Privacy Act, that is the same answer. 
It does not prohibit us.
    Mr. Costello. Okay. So, by what measure are you asserting 
that you are not going to forward information to this committee 
pursuant to that Act?
    Ms. Bradley. First of all, we don't assert that we won't 
provide information to the committee based on the Privacy Act. 
What we want the committee to understand is that in the 
executive branch, it is a fundamental interest that we 
establish trust with veterans, with our patients and with our 
employees. So, to the extent we can protect personal 
information and still meet your oversight needs, that is what 
we want to achieve. We want to accommodate with you so that we 
can meet your needs, but you need to be mindful that we want to 
protect privacy interests.
    But we don't have any bar from providing you the 
information, but if you don't need it, it would be an 
unnecessary disclosure. It would be re-disclosing private 
information that we try to avoid. It is a high-risk area, and 
we try to avoid it.
    Mr. Costello. Okay. I yield back. Thank you.
    The Chairman. Mr. Walz.
    Mr. Walz. Thank you, Mr. Chairman. And thank you all for 
being here at this later hour.
    First of all, I think the premise we all start from is, is 
that it is never in question that everyone in this room cares 
deeply about the care of our veterans and tries to deliver the 
best quality care we can.
    And I also think, and I think the ranking member did a nice 
job, Ms. Bradley, of summing up here. I think it is refreshing 
to hear you talk about this, in here, and I think Mr. Bopp call 
it aspirational, which I think is a very positive character 
trait. I am a high school teacher and lunchroom supervisor. 
Aspirational is a good place to be in. But it also understands 
that results do matter, and I hope you understand, and we do 
know you are new at this, but all of us up here, the one 
thing--we are a pretty surly bunch on this issue of data--and 
the issue of being concerned about the privacy of the data as 
one of those veterans who is in the 26 million who the data 
went out from your office, not us, this is a touchy spot.
    And this idea about the determinations, and I am very 
cognizant of your protecting data and all that, but this is, it 
is the reality of where we are at. An example is of after 
Phoenix, great investigations went across the country in depth, 
and then a list was published of areas, and facilities, and 
CBOCs that had problems, and those made it on the front page of 
many of our congressional districts that there is a problem at 
X CBOC. And then when we ask what the problem was, silence. And 
then people would come in here, and I would say will you take 
back to your boss that I need to know what is happening. 
Picture what happened back in our districts.
    There was Phoenix. There were problems. We were on the 
list. We are a member of the committee, a Member of Congress, 
and we have to respond, I don't know, they won't tell me. They 
won't tell me. Request, request, request. That is what you are 
up against. And the situation is we are on the same team. We 
are trying to get there, but it created this friction. So even 
if it is one case from one Member who didn't get an answer, 
that is the most important request that you have ever gotten 
because it is a veteran in that district. So that is what you 
are up against.
    Now with that being said, Ms. Regan, how many times have 
you testified here?
    Ms. Regan. I lost count, maybe seven, eight.
    Mr. Walz. Sure. When I got here in 2007, we had a lot of 
them, and that is when we first met. And I think at that time I 
would make the assumption--you don't have to--that I felt the 
IG was underfunded, and I felt the criticalness of IGs across 
the government are absolutely critical. What is Ms. Bradley's 
oversight over you? What leverage does she have over you?
    Ms. Regan. None.
    Mr. Walz. So, you are two separate issues here. My point on 
this hearing is what I would say is this issue of transparency, 
or and I will say at times the lack thereof of on the numerous 
issues that Mr. Bopp and the Professor brought up, about how we 
get this, I fall in their camp on this, because the one thing 
you will get us to agree on--this is a pretty bipartisan 
committee--but the issue of congressional, prerogative and 
privilege, we are together on this. We want it. We need it. We 
are Article 1 for a reason. Deliver it. I think this is an 
important one. We need to get answers, and we need to figure 
that out.
    What I am concerned about is the sensitive nature of the IG 
because two things are at work here. The integrity of the IG is 
being questioned, or the integrity of the IG has been 
compromised, or both or neither, I guess in terms of if it 
hasn't been. That has been brought into this. And this is 
something new, and this is something that I think is critical. 
It needs to be looked at. I just think by--and I know it 
crosses into this issue of getting information on this, but I 
am, at least at this point, uncomfortable in this because of 
that absolute sacredness of the IG being independent from you 
and being able to do what Mr. McNerney just asked, I want that 
report to be done. I want you, Ms. Regan, to ask--this is why 
we are so mad because we asked for a request, and Ms. Walorski 
waited 7 months.
    So I guess and, again, as a statement as we all make them, 
and it may have been said before, there is some great questions 
brought up. You hear a common thread going through here. We 
want the information to serve our veterans, as you want. I 
believe you are trying to protect them. Our situation is, is 
that is good, but let us decide. Send it to us.
    And this issue of the IG of what has happened here with 
Treasury and an employee or whatever, this is very sensitive 
ground that I am not comfortable at 10:00 at night in another 
hearing of this being there, so I will just respectably ask the 
chairman and the ranking member--I think they have already done 
this--is maybe taking this to a different level, the 
communications with the Secretary and the two principals that 
are here, taking that and then figuring out where we go next.
    But, I am grateful for the opportunity. This is a critical 
issue, and I want to say while, and being a teacher myself, I 
am sorry I didn't ask you a question. I know we like to talk, 
so I would have let you, Professor. But, I think you two bring 
up a good point. While this may be theoretical, it is an 
important theoretical discussion we are having here on this 
Freedom of Information Act and what we have, and I will tell 
you this issue has frustrated me from the beginning. And you 
have inherited, Ms. Bradley, but what I am hearing tonight is I 
think you have the potential to fix it. I think you have the 
right attitude to do so, and I would encourage you to work with 
us to get that done. I yield back.
    The Chairman. Thank you, Mr. Walz. Dr. Wenstrup, you are 
recognized.
    Mr. Wenstrup. Well thank you, Mr. Chairman. I found a lot 
of this conversation very interesting and disturbing at the 
same time tonight, and in many ways since I have been in 
Congress, and I am in my second term. I am a doctor, and my 
specialty is foot and ankle. Sometimes I would be called to the 
hospital to see patients that are in the mental health ward. 
Now, they don't redact everything that is in that chart about 
the patient. There is an understanding that when I see that 
patient, that I understand that is private. And that is what is 
missing here. There is no understanding.
    I don't see where you are any more professional than I am 
when it comes to what information should be shared and what 
isn't. I have to make that decision and be professional, and 
know what is private, but I need to get the information. And we 
have the authority to get that information. It is not up to 
you. You don't have any higher certification than I do when it 
comes to making decisions about privacy. And that is an 
attitude we have here.
    We go to classified briefings as Members of Congress. You 
know, I served in Iraq as a soldier. I would get special 
briefings on battles that were coming up. I was trusted there. 
I am trusted as a doctor. But here we see things like the 
Bergdahl exchange where the law says that you are supposed to 
inform Congress of this, and both sides of the aisle were upset 
about that because they just did it. And this is the attitude 
that tends to pervade down to us here in Congress.
    And as Mr. Walz said, you are asked a question. I don't 
know. You are a Member of Congress. You can't find that out? 
That is the problem. And really the--I trust every single 
person that sits around this table, both sides of the aisle, to 
be professional and do the right job and try and take care of 
veterans. It is an attitude that has to change. If you can tell 
me why you are more professional than I am to read personal 
information and to make a judgment on things that we need to 
do, I would like to know what that is.
    And you said a couple of times about the executive branch. 
Does the VA only work for the executive branch? No, they work 
for the legislative branch as well, and we the people. And that 
is an attitude that has got to change. Do you think you only 
work for the executive branch? I ask that question, and I would 
like to know the answer.
    Ms. Bradley. Well, we are a part of the executive branch, 
but I will tell you who we think we work for, it is our 
Nation's veterans.
    Mr. Wenstrup. So do we.
    Ms. Bradley. It is a privilege to work for them.
    Mr. Wenstrup. But please--please work with us. I am 
encouraged by what you are saying tonight. This is water under 
the bridge, a lot of the things that we are talking about, but 
it is not just in this committee, and it is throughout, where 
agencies feel they don't have to work with us. And I hope that 
that changes as we move forward, and with that, Mr. Chairman, I 
yield back.
    The Chairman. Thank you, Dr. Wenstrup. Ms. Brown, do you 
have any closing comments?
    Ms. Brown. Ms. Bradley, it has been nice meeting you. I am 
looking forward to working with you, and make sure you stand 
down, I think that is the word. Let everybody know where you 
stand, because you made a lot of commitments around the room, 
and I want you to be able to produce, you know, your promises. 
And I just know in the timeframe, some of the promises, like 
tomorrow, you may not be able to do it, but maybe you will be 
able to do it Wednesday. Thank you, and I yield back the 
balance of my time.
    The Chairman. Thank you very much. And I would say that the 
new Secretary has been a breath of fresh air for all of us. He 
is doing the very best that he can, given the hand that he has 
been dealt. He has brought some able folks in, and is moving 
some unable folks out, in regards to their ability to do their 
jobs. I have said to him time and time again, we want to be a 
partner.
    Ms. Bradley, you and this committee will work very well 
together. I know we will. Ms. Regan, we will always have 
friction between the IG's office and us as it relates, but I 
can tell you, as Dr. Wenstrup has already said, we know how to 
protect private information. We are not going to release 
private information. I would take exception. I would like to 
speak with you briefly before we all depart in private so we 
know exactly what the two areas that you have alluded to. I 
know of one I think, but I dispute that and tell you that that 
was all redacted. Just because you write or somebody writes on 
it that it is for official use only, doesn't necessarily mean 
that that is the case. We have redacted numerous documents that 
we have provided to the media and in order to further this 
committee's investigations and causes.
    But I would like to know the second. If I have hit on one, 
but I would like to know the second. And this committee, again, 
commits itself to working with the Secretary, to working with 
the, is it the deputy IG? I guess he is the deputy now. Used to 
be the acting, but he has been in office for so long he is now 
the deputy IG. And I have encouraged the President to fill that 
slot permanently, because I think it is important that it be 
done.
    But we do all have the exact same end goal, and that is to 
serve the veterans of this country and get them the benefits 
that they have earned in a timely fashion.
    And with that I ask that all members have 5 legislative 
days to revise and extend their remarks or add any extraneous 
material.
    The Chairman. Seeing no objections, this hearing is 
adjourned.
    [Whereupon, at 10:12 p.m., the committee was adjourned.]

                                APPENDIX

               Prepared Statement of Chairman Jeff Miller

    I want to welcome everyone to tonight's hearing titled, ``The Power 
of Legislative Inquiry Improving the VA by improving transparency.''
    This hearing will examine some of the legal objections raised by 
the Department of Veterans Affairs (VA), including its Office of 
Inspector General (OIG), in responding to Committee requests for 
documents and information.
    I want to emphasize that an essential goal of this Committee is to 
use its constitutional oversight authority to discover and address 
problems so that VA can serve veterans more effectively.
    While I am willing to work with Secretary McDonald to implement 
needed reforms, I am unwilling to let the secretary or anyone at the 
department dictate how the Committee conducts oversight or performs 
investigations.
    Nor am I willing to permit the department to place any limits on 
the information we receive. Simply put, the Committee's constitutional 
obligation to conduct oversight requires that it receive complete and 
unfettered access to all documents requested.
    This Committee requests transparency from VA.
    Such transparency was absent, last year, when the Committee 
uncovered the national wait time scandal.
    Scheduling data manipulation was exposed despite repeated and false 
denials by VA officials that there was anything wrong.
    When VA tried to impede the Committee's investigation, we were 
forced to issue subpoenas to get answers. Ultimately, leadership at VA 
was forced out, though accountability for the national scandal remains 
incomplete. Unfortunately, it's uncertain whether VA understands the 
lessons in transparency it should have learned.
    Currently, in excess of one hundred (100) requests for information 
remain outstanding, sixty-three (63) of which are months past due.
    Based on its general counsel's advice, VA has insisted on 
chairman's letters for many requests and has taken to second-guessing 
whether there exists a legitimate purpose for each request.
    Equally problematic, VA and OIG assert they can withhold sensitive 
information based on the unfounded fear that such information might be 
publicly released by the Committee.
    The Supreme Court has consistently found Congress' oversight powers 
to be broad in scope due to its constitutionally enumerated powers. 
Regardless, VA and, more troubling, its OIG, continue to assert a 
number of meritless rationales to delay, limit, and even deny 
information to the Committee.
    For example, VA recently invoked the Trade Secrets Act to avoid 
disclosing a risk assessment evaluating the costs of options for 
completing the Denver hospital construction project which is already 
hundreds of millions of dollars over budget. Given that Congress must 
authorize and appropriate funds for the hospital, the reluctance to 
share this needed information is perplexing.
    In addition, VA recently raised undefined ``privacy interests'' to 
refuse producing all records of a veteran who tragically committed 
murder/suicide, a request that was made months ago.
    Also, due to an unnecessary and unjustified privacy act review by 
VA general counsel, VA has failed to produce several boxes of EEO 
documents from Philadelphia that I requested months ago, even though a 
member of my staff was told by VA representatives that the files could 
be available in a ``few days.''
    In a briefing with Committee staff last Monday, VA representatives 
suggested that VA and the Committee work together to balance equities 
and minimize disruption to the department. They suggested that the 
Committee entertain briefings in lieu of document requests and, to the 
extent documents remained necessary, the Committee accept ``in camera'' 
reviews.
    With full notice of this hearing, they even tried a late gambit to 
get ahead of criticism by offering ``to allow'' my staff to see the 
long-sought veteran medical files and Philadelphia EEO files, meaning 
VA would retain physical custody of relevant documents and the 
Committee would only get a time-limited, VA supervised viewing.
    My flat out answer to this arrangement is no.
    The Committee is not a junior partner with VA in any respect and 
certainly not when it concerns our obligation to conduct oversight.
    We request documents for a number of reasons within our oversight 
role.
    Although we endeavor to share what we can with VA regarding the 
purpose of an inquiry, there are legitimate reasons for stopping short 
of full disclosure.
    Among other things, VA's efforts to co-opt Committee investigations 
could place in jeopardy our ability to cultivate whistleblowers within 
the department.
    Further, the independence of an investigation could be compromised 
or frustrated by deliberate delay if the full purpose of an inquiry is 
revealed to the entity that is the subject of an investigation.
    Let there be no mistake or misunderstanding, when this Committee 
requests documents, I expect production to be timely, complete, and 
accurate.
    I do not expect a litany of questions about the purpose of a 
request, a negotiation about how or when it will be answered, or a 
tutorial from VA officials about how the Committee should do its 
business.
    Perhaps most disappointing is that even VA's inspector general has 
adopted a similar restrictive posture with the Committee.
    The OIG failed to include the Committee in the distribution of an 
early report on wait times at Phoenix and more recently, a report on 
serious medication management issues at Tomah.
    Notwithstanding the inspector general act mandate to keep Congress 
currently and fully informed, the IG has taken the stilted position 
that other than a semi-annual report specifically mentioned in the IG 
act and others mandated by separate statute, reporting to Congress is 
fully within its discretion.
    This position was articulated most recently in refusing to provide 
the Committee with all underlying documentation for an IG report 
finding serious improprieties of a former senior procurement official.
    Among reasons for the denial were the Foia, The Privacy Act, and 
The Trade Secrets Act.
    This case deserves special attention and is illustrative of the 
too-cozy relationship between the VA OIG and VA.
    Given the gravity of the findings and that the official had taken a 
position with the treasury department, we referred the report to the 
treasury IG.
    The VA OIG refused to cooperate with the treasury IG's 
investigation citing unfounded privacy act concerns.
    The treasury IG conducted its own independent investigation and 
issued a letter to the Committee this past Wednesday that ``calls into 
question the integrity of VA OIG's actions in this particular matter.''
    I ask unanimous consent to include this letter into the hearing 
record. Hearing no objection, so ordered.
    In addressing continuing scandals at VA, deputy secretary Sloan 
Gibson recently said, ``I don't expect anybody to give that trust 
back.''
    ``I expect that we're going to have to earn it back.''
    ``One of the ways we will work to earn that trust back is through 
transparency and openness.''
    If VA truly wants to be transparent and open, one of the first 
things it needs to do is stop impeding the Committee's oversight 
investigations.

                                 

      Prepared Statement of Ranking Minority Member Corrine Brown

    Thank you, Mr. Chairman.
    I will be brief in my remarks given the time. I know that I speak 
for many of our Members when I question the urgency and the need to 
hold this hearing in the evening, and not in the course of the regular 
order of this Committee.
    I believe that the topic of this hearing, on the oversight power of 
this Committee, and the limitations to that power, including a 
recognition that there are sometimes legitimate interests that the 
Executive Branch has that we should try to accommodate, is an important 
one. This goes to the very heart of the doctrine of Separation of 
Powers.
    I believe this discussion, rooted in Congress's broad, but not 
unlimited oversight power, is a discussion that, from time, many of our 
committees should engage in.
    Our job as a committee is an important one, and we need to have 
access to information that enables us to fulfill our valid legislative 
purposes. It is well settled that Congress does not have a general 
power of investigation, and does not have the power to ``expose for the 
sake of exposure.''
    I look forward to hearing from the VA how the new process they have 
undertaken will lead to more complete and more timely responses to 
legitimate Committee requests.
    For too long Members on both sides have expressed frustration at 
not getting answers to the questions we have. I hope that this new 
process will fix this problem, and not just be the same old process 
dressed up as something new.
    I have long believed that this Committee works best when we work 
together, when we work together to uncover problems, and work together 
to ensure that we find solutions to these problems.
    This working together includes informing all Committee members of 
actions taken in the name of the Committee, including oversight 
requests made of the VA, the Inspector General, and other agencies and 
individuals that fall within the jurisdiction of our Committee.
    I am troubled that I have not been informed of many of these 
requests, and I hope that you will assure me, Mr. Chairman, that my 
staff, and I, will be informed in the future.
    I look forward to this hearing on the important issue of oversight. 
I look forward to hearing from the new VA General Counsel, regarding 
the VA's efforts to better respond to Congressional requests. I look 
forward to hearing from the VA Inspector General how we can work 
together to uncover waste, fraud, and abuse and the important work that 
the IG does to assist this Committee. I also look forward to the 
opinions and insight of our two experts, Professor Tiefer (Tea-fer) and 
Mr. Bopp.
    I believe their contributions will be helpful to all of us in order 
to enlighten us on this complex area of law and as we look at ways to 
improve the manner and process by which we as a Committee conduct our 
oversight responsibility in the future.
    Thank you and I yield back the balance of my time.

                                 

                 Prepared Statement of Maureen T. Regan

    Mr. Chairman and Members of the Committee, thank you for the 
opportunity to provide information on the laws and requirements that 
the Office of Inspector General (OIG) must follow when releasing 
information to Congress and the public.
    The primary responsibility of the OIG for the Department of 
Veterans Affairs (VA) under the Inspector General Act of 1978, (IG Act) 
as amended, is to conduct oversight of VA's programs and operations. In 
addition to planned audits, inspections, and evaluations, we conduct 
investigations, reviews, audits, and inspections in response to 
complaints received through the OIG Hotline as well as from Members of 
Congress. In the last 6 years we opened 690 cases based on requests 
from Members of Congress.
    Our purpose today is to discuss the OIG's responses to 
congressional requests and discuss our commitment to transparency. As 
discussed in detail below, the OIG is transparent in reporting the 
findings and conclusions of our work as permitted under existing laws 
and regulations. Furthermore, the OIG has complied with applicable 
legal requirements for reporting to Congress and responding to 
congressional requests.

Transparency

    With respect to the issue of transparency, in the past 6 years, the 
OIG has issued more than 1,700 reports; made 3,000 arrests; provided 
testimony at 67 congressional hearings; conducted 400 briefings to 
Members of Congress and staff for various congressional committees; and 
responded to written requests for information from various Members and 
committees. In addition to the 400 briefings, on a daily basis we 
respond to telephone calls and emails from committee and Members' 
personal staffs and the media seeking additional information regarding 
our reports. During this 6-year time period, we also processed 1,860 
requests for information under the Freedom of Information Act.
    As required under the IG Act, all report titles are posted on our 
website within 3 days of being issued to VA. If the information in the 
report is not protected under the Privacy Act or another 
confidentiality statute, the website includes a link to the report. If 
the report contains protected information, the title and a brief 
summary are posted. However, once we release a report in either 
redacted or unredacted form under the Freedom of Information Act 
(FOIA), the report itself can be accessed on the website. Our official 
distribution list include our congressional oversight committees. We 
also include other Members of Congress when the report is about a 
facility in their district or state or if that Member of Congress 
requested the review. All receive email notification when reports are 
posted on the OIG's website.
    In an effort to release our findings and conclusions publicly, all 
reports are reviewed by our Information Release Office, which is a 
component of the Office of the Counselor to the Inspector General, for 
a determination whether the report can be published on our website in 
its entirety or in redacted format when issued. The Office of the 
Counselor works closely with the various OIG Directorates to write 
reports that the findings and conclusions are clear and supported and 
in such a way that the reports can be made public without redactions. 
As one example, on December 8, 2014, we issued a report, Review of 
Allegations Regarding the Technical Acquisition Center's Award of Sole-
Source Contracts to Tridec for the Virtual Office of Acquisition, 
Report No. 12-02387-59. The report was referenced on our website the 
same day it was issued but was not accessible because it was protected 
from disclosure under the Privacy Act. We subsequently received FOIA 
requests for the report and it became accessible in its entirety on the 
website on December 15, 2014, within days of receiving the FOIA 
requests.
    The OIG has procedures in place to authorize us to review certain 
allegations and provide information to individual Members of Congress 
who have requested that we review or investigate a complaint from a 
constituent. For example, as discussed below, the IG Act prohibits us 
from disclosing the identity of complainants. Due to the nature of many 
complaints, it is often not possible to review allegations without 
disclosing directly or indirectly the identity of the complainant. To 
this end, we developed a waiver of confidentiality form for the 
complainant's signature that we provide the Member. When we complete 
our work we provide follow-up information to the Member for the 
constituent. Similarly, when we close a Hotline case, those 
complainants whose identity is known are notified of the closure and 
advised of their right to make a request under FOIA.

    Responding to Requests From Congress

    In responding to congressional oversight committees, the OIG has 
fully complied with applicable laws. We have reviewed applicable 
Federal statutory and case law and consulted with the Department of 
Justice. We have made every effort to be responsive and provide 
requested information without violating the law or waiving any 
applicable privilege based upon requests in any form from a committee 
Member or staff. Our responses have ranged from providing briefings, 
answering questions, and providing records.
    However, we have a responsibility to comply with laws and 
regulations regarding the release of information and a right to request 
justification when responding to requests for non-public information 
maintained by the Executive Branch. Some of the laws that impact 
decisions to release non-public information to congressional oversight 
committees include:

The Inspector General Act

    Section 2 of the IG Act states that the intent of the Act was ``to 
create independent and objective units'' to ``conduct and supervise 
audits and investigations relating to the programs and operations'' of 
the agency and to ``provide a means for keeping the head of the 
establishment and the Congress fully and currently informed about 
problems and deficiencies relating to the administration of such 
programs and operations and the necessity for and progress of 
corrective action.''
    Section 4 (a)(5) of the IG Act provides: ``[T]o keep the head of 
such establishment and the Congress fully and currently informed, by 
means of the reports required by section 5 and otherwise, concerning 
fraud and other serious problems, abuses, and deficiencies relating to 
the administration of programs and operations administered or financed 
by such establishment, to recommend corrective action concerning such 
problems, abuses, and deficiencies, and to report on the progress made 
in implementing such corrective action.''
    The only specific means identified or mandated in Section 5, or for 
that matter anywhere else in the IG Act, for meeting this requirement 
are the Semiannual Reports to Congress and the ``seven day'' letter 
described in Section 5(d). This section requires the IG to report 
immediately to the head of the establishment involved whenever the IG 
becomes aware of ``particularly serious or flagrant problems, abuses, 
or deficiencies relating to the administration of programs and 
operations of such establishment.'' The head of the establishment, not 
the IG, is required to transmit any such report to the appropriate 
committees or subcommittees of Congress within seven calendar days, 
together with a report by the head of the establishment containing any 
comments such head deems appropriate.
    In addition to our semiannual reports, to ensure that Congress is 
currently informed, the OIG routinely provides copies of reports, 
sometimes in redacted form, to our oversight Committees usually before 
the report is posted on our website. When requested or when we believe 
there are significant findings we offer to brief the Committees on the 
findings and conclusions and answer questions. As noted above, our 
oversight Committees receive an email notification when reports are 
posted on our website.
    The IG Act does not mandate that reports or other information 
protected from disclosure under a provision of law be provided to 
oversight committees or otherwise made public. Section 5(e) of the IG 
Act states that ``nothing in this section shall be construed to 
authorize the public disclosure of information which is ``(A) 
specifically prohibited from disclosure by any other provision of law'' 
. . . and ``(C) a part of an ongoing criminal investigation.'' In other 
words, there is no requirement under the IG Act to provide any 
congressional committee or subcommittee with an unredacted copy of a 
report containing information that is protected under the Privacy Act 
or other confidentiality statute.
    Section 7(b) of the IG Act prohibits the OIG from disclosing the 
identity of employees who submit complaints or provide information to 
the OIG. Similarly, Section 8(m) of the OIG Act protects the identity 
of all other complainants. The failure by the OIG to maintain 
confidentiality by releasing the identity of complainants without their 
authorization would have a chilling effect on individuals or entities 
who want to report fraud or other criminal behavior, violations of 
laws, rules, or regulations, public health or safety issues, gross 
mismanagement, etc.

The Privacy Act

    Information contained in reports issued by the OIG and the 
information contained in the supporting documents are maintained in a 
Privacy Act system of records. The Privacy Act prohibits the disclosure 
of information that is maintained, or should be maintained, in a 
Privacy Act system of records without the consent of the individual to 
whom the record pertains. The term ``disclosure'' includes any means of 
communication including oral disclosures. The Privacy Act provides for 
civil and criminal penalties for the unauthorized disclosure of records 
or information contained in those records.
    There are 12 exceptions to the ``no disclosure without consent 
rule.'' These exceptions include responding to requests for information 
received under FOIA, Section 552a (b)(3). When information protected by 
the Privacy Act is requested under FOIA, and is not prohibited from 
disclosure under any other FOIA exemption, the agency is required to 
conduct a balancing test in which the individual's right to privacy is 
weighed against the public's right to know [FOIA Exemptions (b)(6) and 
(b)(7)(C)]. When the public's interest outweighs the individual's 
privacy interests, the information can be released without the consent 
of the individual. The decision to release information in OIG systems 
of records resides with the Inspector General or designee.
    Section 552a(b)(9) authorizes (but does not mandate) a disclosure 
``to either House of Congress, or, to the extent of a matter within its 
jurisdiction, any committee or subcommittee thereof, any joint 
committee of Congress or subcommittee of any such joint committee.'' 
OMB Guidelines specifically state that this exception does not 
authorize the disclosure of information protected under the Privacy Act 
to an individual Member of Congress acting on his or her behalf or on 
behalf of a constituent. OMB Guidelines, 40 Fed.Reg. 28,948-28,955 
(July 9, 1975). The decision by the agency to disclose Privacy Act 
protected information to an oversight body is at the discretion of the 
agency and requires a written request. Neither the Privacy Act nor any 
other statute mandates that an agency release Privacy Act protected 
information to either House of Congress when requested.
    In our discussions with staff from the House Veterans' Affairs 
Committee and another committee, they have told us that the Privacy Act 
does not apply to Congress. As we pointed out in both discussions, 
while the Privacy Act does not apply to records in the possession of 
congressional committees, it does apply to the agency that maintains 
the record when making a decision whether the record can be released.

Title 38 U.S.C. Confidentiality Statutes

    In addition to the Privacy Act, certain VA records are also 
protected from disclosure under various VA confidentiality statutes, 
Title 38 U.S.C. Sections 5701, 5705, and 7332. The plain language of 
these sections shows that the decision whether to release the 
information resides with the Secretary. Each statute identifies the 
circumstances under which the Secretary is required to disclose or the 
discretion to disclose the protected information without the consent of 
the individual. None of the statutes authorize the OIG to disclose 
protected information. As with the Privacy Act, each of these the 
statutes include civil and/or criminal penalties for unauthorized 
disclosures.

     38 U.S.C. Section 5701--Prohibits the disclosure of VA 
claims records, including the names and addresses of veterans and other 
beneficiaries. With the exception of deceased veterans, these records 
are also protected under the Privacy Act. Unlike the Privacy Act, 
Section 5701 is still applicable after the death of the individual.
     38 U.S.C. Section 5705--Prohibits the disclosure of 
medical quality assurance records. Regulatory requirements implementing 
this statute are set forth in 38 C.F.R. 17.500 et. seq.
     38 U.S.C. Section 7332--Prohibits the disclosure of 
records of the identity, diagnosis, prognosis, or treatment of any 
patient or subject that are maintained in connection with the 
performance of any program or activity relating to drug abuse, 
alcoholism or alcohol abuse, infection with HIV, or sickle cell anemia.

    In responding to requests for information, including requests from 
our oversight committees we take seriously our responsibilities to 
protect the identity of individuals, especially employees and veterans, 
who could be harmed if the information became public. Statute dictates 
that veterans have both a right and expectation that their private 
medical and other claims information not be disclosed without their 
consent unless otherwise authorized by statute. As such, we have both a 
right and an obligation to ask questions and obtain clarification from 
an oversight committee or subcommittee seeking information protected 
from disclosure.

The Accommodation Process

    A memorandum issued on June 19, 1989, by the Department of Justice, 
Office of Legal Counsel (OLC), summarized the principles and practices 
governing congressional requests for confidential executive branch 
information. 13 Op. OLC 153 (1989). The memorandum addressed ``the duty 
of Congress to justify its requests.'' Id., 159. As noted in the OLC 
memorandum, ``the process of accommodation requires that each branch 
explain to the other why it believes its needs are legitimate.'' Id. 
Justifications for not providing the information requested may include 
whether the entity responding has the legal authority to release the 
information and whether the records are privileged.
    The OIG is and has always been prepared to accommodate legitimate 
oversight requests but we need to do so in a manner consistent with 
veterans' expectations to privacy, statutes, and appropriate guidance 
of the Executive Branch.

Conclusion

    The OIG is committed to carrying out vigorous oversight of VA 
programs and operations and keeping the VA Secretary, Congress, and the 
American public informed of our oversight results. Our prolific public 
reporting on the OIG Web site (http://www.va.gov/oig/) and information 
sharing with Congress thru briefings, hearing testimony, and regular 
staff contacts are among the highest in the Inspector General 
community. In doing so, we will continue to carefully balance the 
public's right to know against the privacy of individual veterans, and 
to work with Congress in accommodating legitimate oversight requests to 
further our mutual goal of helping VA improve delivery of services to 
America's veterans.

                                 

                  Prepared Statement of Charles Tiefer

    Mr. Chairman and Members:
    Thank you for the opportunity to testify.
    This testimony concerns the Committee's right to obtain oversight 
materials about VA and VA OIG (both referred to here sometimes as 
``VA'') programs, beyond what the agencies choose to make public. 
Advice from the VA General Counsel raises various objections to the 
Committee obtaining documents for oversight, amounting to a 
comprehensive program of denying meaningful access.
    For 15 years, I was counsel to Congress (1979-84, assistant Senate 
legal counsel; 1984-1995, General Counsel, and, Deputy General Counsel, 
of the House of Representatives). During that time, I testified and 
submitted briefs to court a very large number of times on questions 
like the one before us. Since then, I have been a professor at the 
University of Baltimore Law School. I have continued to study these 
subjects, testifying from time to time, and, publishing at length, on 
these subjects. Charles Tiefer, ``The Specially Investigated 
President,'' 5 Univ. of Chicago Roundtable 143-204 (1998).
    I was Chairman Issa's (R-Cal.) lead witness at his hearing on the 
demand for Justice Department materials about the ``Fast and Furious'' 
scandal that became the House's contempt case against Attorney General 
Holder when the President invoked executive privilege.\1\ I gave full-
length written (and oral) testimony in 2002 about a similar issue 
during the Bush Administration involving an FBI informant 
program.\2\ Ultimately a claim of executive privilege by the President 
himself was overcome by that investigation.
---------------------------------------------------------------------------
    \1\ ``Congressional Committee Conducting Oversight of ATF Program 
to Sell Weapons to Smugglers, Notwithstanding Pending Cases,'' in 
Hearing on Justice Department Response to Congressional Subpoenas: 
Hearing Before the House Committee on Government Oversight. June 13, 
2011.

    \2\ ``Overcoming Executive Privilege at the Justice Department,'' 
in The History of Congressional Access to Deliberative Justice 
Department Documents: Hearings Before the House Committee on Government 
Reform, 107th Cong., 2d Sess. (Feb. 6, 2002).
---------------------------------------------------------------------------
This Committee has ``Penetrating and Far-Reaching'' Power to Obtain 
Oversight Materials From Agencies, Including Inspectors General

    The Supreme Court described the Congressional oversight power as 
``penetrating and far-reaching'' in Barenblatt v. United States, 360 
U.S. 109, 111 (1959):
    The power of inquiry has been employed by Congress throughout our 
history, over the whole range of the national interests concerning 
which Congress might legislate or decide upon due investigation not to 
legislate; it has similarly been utilized in determining what to 
appropriate from the national purse, or whether to appropriate. The 
scope of the power of inquiry, in short, is as penetrating and far-
reaching as the potential power to enact and appropriate under the 
Constitution.
    Congress enacted the Inspector General Act of 1978 to create 
investigative machinery for more than one purpose. Of course, one 
purpose was for law enforcement. But, another purpose was to keep 
Congressional oversight about agency problems, which involves 
cooperating with Congressional committees' own efforts to oversee the 
same. The House General Counsel's office, when I served there, wrote 
what became the authoritative opinion in the House about that 
inspectors general must provide committees with oversight material. 
(The opinion has been separately furnished to this committee. It was 
about a Justice Department memo known as the ``Kmiec Memo''.)
    Let us lay out the argument made unsuccessfully then, and made 
again now by the VA OIG. Specifically, section 4(a)(5) of the Inspector 
General Act plainly and explicitly requires each OIG ``to keep . . . 
The Congress fully and currently informed, by means of the reports 
required by section 5 and otherwise, concerning fraud and other serious 
problems, abuses, and deficiencies relating to the administration of 
programs, abuses, to the operations . . .''
    The response now by the OIG is that ``The only specific means 
identified or mandated in Section 5 . . . for meeting this requirement 
are the Semiannual Reports to Congress and the `seven day' letter 
described in Section 5(d).'' In other words, the OIG would shrink down 
the duty and obligation of the OIG to keep Congress ``fully and 
currently informed'' to the published reports. It is as if the statute 
said ``the OIG shall withhold from Congress anything to keep it `fully 
and currently informed' except what the whole world is told too.'' The 
Inspector General statute would become the opposite of what Congress 
intended. It would create an entire layer of shielding and withholding 
to surround what Congress pointed to as the ``fraud and other serious 
problems, abuses, and deficiencies'' of agencies like the VA. From 
living contemporary experience at the time, and from the legal 
materials sources, we know the Inspector General Act of 1978 was part 
of a wave of post-Watergate legislation intending to restore 
Congressional oversight. But, the OIG argument would make it the 
opposite, a statute meant to shut the windows and bar the doors for 
Congress peeking in at the failings of agencies like the VA.
    But, taking the OIG's argument and looking at the Inspector General 
Act's words, if the OIG was to withhold and deny needed documents for 
Congressional oversight, and just to make the reports, then there would 
be no purpose to the statute's key words saying the OIG was to keep 
Congress ``fully and currently informed, by . . . reports . . . and 
otherwise.'' The statute would have stopped with ``by . . . reports'' 
if all that the OIG was obliged to provide were reports. Rather, the 
OIG claim that the Inspector General need not go beyond giving Congress 
access to public record material like his reports, is refuted by the 
highly significant ``and otherwise'' language.
    Moreover, as the House Counsel memo responded back at that time to 
the unsuccessful Kmiec Memo, the legislative history of the act shows 
the contrary to the OIG's position. Chairman Jack Brooks (R-Tex) was 
House floor manager of the Inspector General Act of 1978. A bipartisan 
chair who worked closely with his ranking minority member Frank Horton 
(R-NY), he was a strong exponent of Congressional oversight. Not 
surprisingly, his legislative history spells out the exact opposite of 
the OIG position. In a discussion on the House floor Representative 
Bauman (R-Md) agreed with Chairman Brooks--that ``It would just seem to 
me to be pointless to pass this legislation unless, as part of each 
committee's oversight function, the committee had complete access to 
all records of the investigations of these Inspectors General. 
Otherwise, the bill is unnecessary.'' (Underlining added) Chairman 
Brooks agreed and explained: ``If the gentleman will yield further, Mr. 
Speaker, we will have complete access to the records if we request 
them. It just will not be part of the routine [of OIG reports]. I would 
say to my distinguished friend, the gentleman from Maryland (Mr. 
Bauman), that there is no prohibition with respect to filing all the 
information which Congress wants. We will be able to get it. There is 
no problem about it. It is just that it will not be routinely printed 
in the semiannual reports.'' 124 Cong. Rec. 32032 (1978).

Committees Have Vast Oversight Powers That Go Far Beyond What the 435 
Individual Members Doing Casework Can Obtain

    Another OIG argument reduces the authority of the VA Committee to 
that of one of the 435 individual Members who do casework. The OIG 
justifies not providing records to the VA Committee because they are 
covered by the Privacy Act. If the Privacy Act barred providing 
information to oversight committees, it is hard to see how they could 
function, as a substantial fraction of the waste, fraud, and abuses of 
agencies affect individuals. Now, even the OIG does not dispute that 
Congress carefully provided in section 552a(b)(9) for disclosure ``to 
either House of Congress, or, to the extent of a matter within its 
jurisdiction, any committee or subcommittee thereof . . . .''
    The provision furthering oversight is not surprising, for the 
Privacy Act, like the Inspector General Act, was a product of the post-
Watergate era when Congress restored the oversight power of its 
committees. See, e.g., Murphy v. Department of the Army, 612 F.2d 1151 
(DC Cir. 1979) (noting in that case ``the obvious purpose of the 
Congress to carve out for itself a special right of access to 
privileged information not shared by others'').
    But, even more, there is a further nuance of that statutory 
language. Congress did not provide equivalent treatment for committees 
like the VA Committee, and for the 435 individual Members doing 
casework. It referred to ``any committee or subcommittee,'' while it 
did not refer to individual Members.
    Yet the OIG asserts the power to reduce this committee to the level 
of a caseworker. The OIG argument now continues:
    OMB Guidelines specifically state that this exception does not 
authorize the disclosure of information protected under the Privacy Act 
to an individual Member of Congress acting on his or her behalf or on 
behalf of a constituent. OMB Guidelines, 40 Fed. Reg. 28,948-28,955. 
(July 9, 1975).
    Having conflated committee oversight requests, with individual 
casework, OIG then says:
    The decision by the agency to disclose Privacy Act protected 
information to an oversight body is at the discretion of the agency and 
requires a written request. Neither the Privacy Act nor any other 
statute mandates that an agency release Privacy Act protected 
information to either House of Congress when requested.
    This same argument runs through the rest of the OIG and VA 
positions--that the VA Committee has no more authority than an 
individual Member doing casework, to overcome VA and OIG withholding.
    No one with any understanding of the Congressional investigatory 
power would ever mistake the vast authority of committees (including, 
when pertinent, subcommittees) to conduct oversight, with the work of 
the 435 individual Members on casework. Congress delegates vast 
oversight authority to committees for agencies and matters within their 
committee jurisdiction. It is constitutional authority, upheld in 
literally dozens of decisions in the Supreme Court and the other 
federal courts. In citing Barenblatt v. United States above, what was 
cited for ``penetrating and far-reaching'' authority was a House 
Committee's oversight power, fully respected, honored, and accepted by 
the Supreme Court. The Supreme Court was not talking about casework.
    Normally, this point is so well-understood, so fundamental, so 
undisputed, that no further discussion would be necessary. But, the 
testimony of the agency witness, again and again, conflates the ability 
of an agency to be unhelpful, if it chooses, with individual Members 
doing casework, with the contrasting full authority of House 
Committees, like the Veteran's Affairs Committee (and its oversight 
subcommittee) to perform committee oversight on agencies, like the VA, 
within the committee's jurisdiction.
    What is the difference?
For House Committees:

    Rules of the House of Representatives confer jurisdiction, 
including oversight jurisdiction, and authority, on House committees. 
Moreover, they create a structure with committee rules, including 
witness rights, all to further evolve the committee oversight 
authority.
    Rules of the House, and firmly established precedent, confer 
authority for hearings and subpoenas, the main formal tools of inquiry, 
on House committees.
    Criminal statutes, and firmly established precedent, confer the 
classic investigative sanctions on those who impede committees by 
committing contempt, perjury, and obstruction. This contrasts with the 
435 individual House Members doing casework, at the level down to which 
the VA puts this Committee.\3\
---------------------------------------------------------------------------
    \3\ For individual Member casework:
---------------------------------------------------------------------------
    House Rules do not establish such jurisdiction and authority for 
casework, and do not create a structure with specific rules including 
witness rights;
    House Rules do not confer authority for hearings and subpoenas.
    Criminal statutes do not establish contempt, perjury and 
obstruction for creating obstacles to casework by the 435 individual 
Members.
    This is just the superstructure. Under this rubric, House 
Committees--not the 435 individual Members--conduct a vast quantity of 
oversight on the agencies within their jurisdiction and authority, like 
the VA for the VA Committee. Committees publish many hundreds of 
hearings and reports every Congress. Committees are the eyes and ears 
of the Congress and the nation for oversight like this committee's of 
the VA.\4\
---------------------------------------------------------------------------
    \4\ That has been true since the administration of George 
Washington, when a House Committee inquired into an Indian war. Indeed 
this was true in state and colonial legislatures and the British 
Parliament, as the precedents for the Framers writing Article I of the 
Constitution. Nothing could be firmer as a matter of constitutional 
principle.
---------------------------------------------------------------------------
    To put it bluntly: the VA has lost touch with legal reality, and is 
having a flight of fantasy, to withhold documents from the VA Committee 
by equating the Committee with doing casework.\5\ Section 552(b)(9) has 
not been in the past, is not now, and never will be, authority to 
withhold material from Congressional oversight committees.
---------------------------------------------------------------------------
    \5\ A different question is posed when an individual Member seeks, 
not the sword of formal authority to inquire, but the shield of Speech 
or Debate Clause privilege for informal self-informing. Different 
considerations apply. That question is not posed here.

For the VA to Block Committee Inquiries Into Health Care Matters Lacks 
---------------------------------------------------------------------------
Support in Congressional Investigatory Law

    The VA invokes statutory provisions that keep medical records of 
individual beneficiaries nonpublic. It conjures this issue in the 
abstract, as though the committee were about to throw open the doors to 
VA medical facilities and flinging all the records outside to be 
public, and for no reason at that. The OIG argument strikes at the 
heart of Congressional oversight by rejecting Congressional committees' 
right to anything but public records.
    For several reasons, the OIG argument lacks support. First, the VA 
argument treats oversight as invalid because it must not be allowed to 
view nonpublic records. That is contrary to how oversight is 
conducted--namely, with the understanding and full acceptance that 
House Committees must obtain some nonpublic records. The House has a 
rule about closed or executive sessions, and nonpublic records may be 
deemed to be received that way. The examples of this are legion. 
Virtually every Senate committee receives confidential FBI inquiries on 
nominees, which starts nonpublic and is kept nonpublic.\6\
---------------------------------------------------------------------------
    \6\ The House and Senate Intelligence Committees receive 
information at the highest levels of classification, which starts 
nonpublic and is kept nonpublic. The Joint Committee on Taxation 
receives taxpayer information of an extremely private rigidly 
undisclosed nature, which starts nonpublic and is kept nonpublic.
---------------------------------------------------------------------------
    The Armed Services Committees receive defense information from a 
wide variety of nonpublic arrangements, treated likewise. As House 
Counsel, I dealt with any number of oversight committees, from the 
House Banking Committee to the House Government Reform and Oversight 
Committee, with material from inquiries that was nonpublic. To put it 
differently, it would hobble the House oversight power to restrict it 
only to public information.\7\ Taken as a whole, if House committees 
could obtain nothing more than is publicly posted, their hearing rooms 
would be stale, boring, and completely empty, and their reports would 
go completely unread.
---------------------------------------------------------------------------
    \7\ If the Armed Services Committee could only see the documents 
about our defenses what we post on open Web sites for viewing by 
everyone, it would know little about our military and its judgments for 
the defense authorization bill would be unsupported. If Chairman Issa's 
inquiry about ``Fast and Furious'' only knew about what the posts on 
Web site for viewing by everyone, it would have learned little and its 
judgments would be unsupported.
---------------------------------------------------------------------------
    Second, when Congress passes statutes that would preclude, 
selectively or wholesale, the constitutional processes of Congressional 
oversight, it says so expressly.\8\ There is no possible equating of 
the statutes cited by OIG, which do not mention precluding oversight, 
and these other statutes, which do. There is no comparison between the 
statutes that expressly constrain being obtained by Congress, and those 
that simply say, like these VA-related statutes do, that the 
information is nonpublic. Such statutes do not bar oversight, they put 
Congress on notice that the agency has held these in a nonpublic 
status, and the committees understand this and proceed consciously and 
appropriately.
---------------------------------------------------------------------------
    \8\ For example, tax legislation meant to keep individual tax 
return information inviolate expressly precludes committees (other than 
the tax committees) from obtaining the information. 26 U.S.C. 6103(f). 
House Rules expressly precludes classified information in the hands of 
the Intelligence Committee from being released (except either by 
negotiated declassification or similar special processes). The wiretap 
statute expressly constrains the occasions when Congressional 
committees obtain wiretap records. I worked with these types of 
provisions when I was detailed from House Counsel to being Special 
Deputy Chief Counsel for the Iran-Contra Committee.
---------------------------------------------------------------------------
    Third, as to statutory provisions about individual medical record 
privacy in particular, as committee counsel has pointed out, a HIPAA 
section related to the one cited by the VA says ``A covered entity may 
disclose protected health information to a health oversight agency for 
oversight activities[.]'' 45 CFR Sec. 164.512(d). And, official VA 
practices (``Notice of Privacy Practices'', Sept. 23, 2013) state that 
``VHA May Disclose Your Health Information'' to ``Law Enforcement 
Health Care Oversight (e.g., giving information to the Office of 
Inspector General or Congressional Committees.'' \9\ The pertinent 
statutes and regulations should be interpreted together to authorize 
committee oversight.
---------------------------------------------------------------------------
    \9\ http://www.va.gov/vhapublications/ViewPublication.asp?pub--
ID=3048.K
---------------------------------------------------------------------------
    Fourth, the above points make clear how a legitimate House Veterans 
Affairs Committee investigations into, say, certain specific causes of 
death for specific beneficiaries who did not get appointments, differs 
from throwing open the doors at VA facilities and tossing out to the 
public all the records. The Committee may have a specific oversight 
inquiry, such as the extent to which delays in making appointments were 
a cause of certain specific deaths. It may have a different focus or 
standard than, say, the Inspector General. \10\ The Committee has a 
different responsibility. It must do its oversight work, even though 
this means reviewing nonpublic documents.
---------------------------------------------------------------------------
    \10\ For a hypothetical, the Inspector General for his office's 
specific purposes may decide only to pursue the matter when there is 
strong evidence that the delays were the main or probable cause. The 
Committee for their broader legislative purposes might still be 
interested if there was suggestive evidence the delays were a 
contributing or possible cause. I am speaking for myself. I have not 
discussed with the Committee whether this illustration fits or does not 
fit any of their inquiries.
---------------------------------------------------------------------------
    Fifth, it is said to be a concern of the VA that it might be liable 
for providing the records to Congress in the face of these statutes. 
This is no reason to block oversight. I have heard this kind of 
argument since I started as a Congressional counsel in 1979. I do not 
know of one single occasion during that time when agencies have 
provided something for Congressional oversight and suffered damages 
from a lawsuit. It is a red herring. It is what general counsels raise 
up as a reason not to act, rather than a live probable problem to 
mitigate on the way to actually assisting the oversight.
    In light of the statutes and regulations just recited, an agency 
would say it was legally justified in providing the records. But, 
perhaps the VA actually needs reassurance--say, it has some example of 
something that actually happened that gives it legal worries. Then it 
should approach the Committee very differently. Rather than using its 
concerns as an excuse to preclude oversight, it should use its concerns 
as a reason to provide the records under some kind of an arrangement 
that provides such safety. It should have said to the Committee ``we 
are ready to provide the records, but we wish to show we are acting 
under legal obligation. Can you provide us with a legal memorandum that 
we are under such an obligation?''
    I researched and issued such memos as House Counsel. It was one of 
various ways to mitigate the agency's concerns and to confirm to the 
agency that providing information was the right thing. \11\ The agency 
was expressing its concerns, and yet, its positive attitude, and its 
embracing a solution under which it provides the material, makes all 
the difference.
---------------------------------------------------------------------------
    \11\ Purely as an example, there were some times when an agency 
asked for a committee subpoena--not as part of a desire to actually 
oppose the investigation, but rather to address their unusual need to 
show compulsion. For example, a state agency with records implicating 
privacy might say it needed a subpoena because that ``translated'' into 
an expression of compulsion that was clear between federal and state 
levels. I do not see in this case a need for a subpoena.

Arguments From 18 U.S.C. 1905 and From Pre-Decisional Privilege Are 
---------------------------------------------------------------------------
Without Merit

    VA and OIG have made a number of arguments to the Committee which 
are not at the heart of their testimony today. These warrant only brief 
comment.
    They have mentioned the statute at 18 U.S.C. 1905, the Trade 
Secrets Act, which provides for criminal sanctions for an agency 
official who discloses trade secrets ``unless authorized by law.'' As 
discussed above, the Congressional investigatory power is well 
recognized as authority to obtain agency documents, and satisfies the 
statute. Opinion of the Attorney General 221 (1955). The invocation of 
this statute purports to justify withholding, as proprietary, of 
records of procurement. This claim could not have merit without putting 
out of the oversight business a large part of the activity of House 
committee inquiries doing exactly what the House as a whole, and the 
public, want them to do.\12\
---------------------------------------------------------------------------
    \12\ Virtually every committee of the House looks into procurement 
as to the agency under its jurisdiction. And, from experience with 
procurement protests at the GAO, it is clear that in an instance of 
procurement dispute over contract award, a claim of proprietary will 
sweep up a great deal. Conversely, few subjects deserve oversight as 
much as procurement.
---------------------------------------------------------------------------
    There has also been impugning by the VA of the inquiring 
communications of Congressional committee counsel, also known as the VA 
seeking to impose the requirement of a specific letter from the 
Chairman himself even for limited requests. This is not persuasive. 
Committees must delegate. The VA is enormous.\13\ The VA is not going 
to have the Secretary do everything himself.\14\ It should reserve its 
arguments in this regard for when it has a focused, supportable issue 
that it wants to raise up to the level of the Chairman, not for all 
requests.\15\
---------------------------------------------------------------------------
    \13\ It outclasses in size almost any agencies other than Defense 
and HHS. The VA has hundreds of thousands of employees, and has large 
numbers of facilities scattered around the country. Does the VA Counsel 
claim the power to dictate that the Chair himself must visit them all 
in person, eschewing staff (and still handle his gigantic flow of work 
in Washington)? The VA has hundreds of matters warranting oversight, 
involving all together, directly and indirectly, perhaps millions of 
documents and perhaps gigabytes of data. The VA can hardly insist that 
the Chair read and analyze them all in person, and still handle also 
the duties of legislating, communicating, voting, and so on.
    \14\ For that matter, oversight inquiries from various sources flow 
into the VA. Is the VA Counsel going to make the Secretary of the VA 
himself show up in person, meet in person, join visitations in person, 
take calls in person, fill out questionnaires in person, answer 
inquiries in person, and scrutinize himself millions of documents and 
gigabytes of data in person, and, in short, do everything for the whole 
vast department as to inquiries in person--and not delegate to his 
staff?
    \15\ There always has to be delegation from Chairs--and 
Secretaries--for others to handle the large extent of matters under 
their jurisdiction. And, each side must tolerate a degree of delegation 
on the other side. A wholesale refusal by the VA to respond to 
delegated inquiries makes as much sense as a wholesale insistence by 
the VA Committee that the Secretary in the VA respond in person. The VA 
should not use this point as a basis for blanket refusal to answer 
inquiries. Rather than that, the VA should step back from a refusal, 
recognize the need for delegation on both sides, stop treating 
committee counsel as nullities, figure out some far more 
finely-tuned approach that would meet its real needs and proceed from 
there.
---------------------------------------------------------------------------
    The VA has also tried to make a claim of deliberative process 
privilege. However, it has done little of what it must do to make such 
a claim. It has not focused the claim on some specific narrow agency 
decision or category of documents. Nor has it provided an index for the 
documents. And, this is a claim that ultimately evaporates unless 
backed up by an invocation of executive privilege by the President 
himself. (Currently, the ``Fast and Furious'' litigation is about this 
issue, and the President himself invoked executive privilege.)
    Even with all those steps taken, the claim would be weak, because 
none of the deliberative process involves communications with the 
President. In regards to Sealed Case (Espy), 121 F.3d 729 (DC Cir.). 
There is no particular sign that the President would support a 
privilege claim in this matter.\16\ Without some documentation from the 
VA that the White House stands ready to invoke executive privilege, it 
should be regarded as not specifically invoked in this matter.
---------------------------------------------------------------------------
    \16\ The VA had a large scandal in recent years, and Congress 
conducted oversight, without contest from the White House. Congress 
passed a remedial statute, and the Secretary of VA left office and was 
replaced, without argument from the White House.
---------------------------------------------------------------------------

      Prepared Statement of Michael D. Bopp, Partner and Head of 
                   Congressional Investigations Group

    Chairman Miller, Ranking Member Brown, other members of the House 
Committee on Veterans' Affairs thank you for inviting me to testify 
before you this evening. My name is Michael Bopp and I am a partner at 
the law firm, Gibson Dunn & Crutcher. I also head our firm's 
Congressional Investigations Group.
    I spent more than a decade conducting investigations on Capitol 
Hill, in House and Senate committees, and on special committees 
convened to investigate a particular issue or problem. I have helped 
orchestrate more than one hundred hearings, I have taken countless 
depositions and interviews and I have managed massive document 
discovery efforts both pursuant to letter and subpoena. I have been at 
Gibson Dunn for more than six years and have represented individuals, 
companies and other organizations in dozens of congressional 
investigations. In other words, I have been on both sides of the dais; 
seeking documents and information, and being asked to provide them.
    The power of Congress to investigate, though not explicit in the 
Constitution, is woven into its fabric. As George Mason noted, Members 
of Congress ``are not only Legislators but they possess inquisitorial 
powers.''
    The U.S. Supreme Court has also concluded that Congress has the 
authority and obligation to investigate. In one seminal case, McGrain 
v. Daugherty, the Supreme Court held: ``We are of opinion that the 
power of inquiry--with process to enforce it--is an essential and 
appropriate auxiliary to the legislative function.''
    Why is that the case? What is the reason for this investigative 
authority? Because Congress needs up-to-date, granular information to 
legislate effectively. After the terrorist attacks of September 11, 
2001, Congress did not rush immediately to pass legislation reforming 
the intelligence community based on available information. Instead, 
Congress created the 9/11 Commission, waited for its report, then 
embarked on its own investigation of our intelligence community. The 
legislation that ensued effected a seismic change in how intelligence 
is collected, analyzed and shared by government agency. And it was the 
result of cooperation and information-sharing by the intelligence 
community with Congress.
    In 2005, when Hurricane Katrina hit the Gulf Coast, both the House 
and Senate initiated investigations into what went wrong with federal, 
state and local preparations for--and responses to--the hurricane. As 
part of the Senate investigation, we interviewed more than 325 (mostly 
government) witnesses, held 22 public hearings and reviewed more than 
800,000 pages of documents. There was a lot to look at. What followed 
was legislation that overhauled the way FEMA addresses natural and 
other disasters. This legislative action would not have occurred absent 
the thorough investigative actions taken by the House and Senate.
    It is important to note that Congress need not investigate with the 
sole purpose of drafting or amending legislation. During the Katrina 
inquiry, were we investigating specific ways to amend federal response 
protocols? No. We were investigating what happened; what went wrong. 
So, too, the Supreme Court in McGrain held that it is entirely 
appropriate for Congress to investigate matters ``on which legislation 
could be had.''
    The Executive Branch--no matter which party is in control--might 
not always like Congress' investigative authority, or the way that it 
chooses to exercise that authority. But it should respect it, because 
congressional investigations help Congress perform its constitutional 
functions more effectively. Congressional oversight of executive 
agencies helps ensure that the government is functioning the way it 
should: In how are systemn the best interests of the American people. 
The Executive Branch should respect Congress's power to investigate and 
legislate just as Congress must respect the Executive Branch's 
responsibility to ensure that laws are implemented and enforced--even 
when they are enforced against Members of Congress.
    Vigorous oversight and investigative activities will always cause 
some degree of friction between Congress and the Executive Branch. In 
fact, that is how our system was designed. But they should not cause 
agencies to look for questionable ways to withhold information from 
congressional committees, to hide the ball. In the private sector 
context, the types of obfuscation alleged here would not be tolerated. 
In the case of investigations of the Executive Branch, such activities 
are not unique to a particular agency or office of inspector general, 
and they are also not unique to a particular political party. But they 
are all too common.
    I applaud the Committee for standing up for the prerogatives of 
Congress through this hearing.
    And I welcome any questions you may have.
```