U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

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 20402–0001

89–835 PDF 2015

THE OFFICE OF INSPECTOR 

GENERAL AND ITS ONGOING 

FAILURE TO COMPLY WITH A 

SUBPOENA FOR DOCUMENTS 

ABOUT A RECENT INVESTIGATION 

OVERSIGHT HEARING 

BEFORE THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

Thursday, September 11, 2014 

Serial No. 113–89 

Printed for the use of the Committee on Natural Resources 

( 

Available via the World Wide Web: http://www.fdsys.gov 

or 

Committee address: http://naturalresources.house.gov 

(II) 

COMMITTEE ON NATURAL RESOURCES 

DOC HASTINGS, WA, Chairman 

PETER A. DEFAZIO, OR, Ranking Democratic Member 

Don Young, AK 

Louie Gohmert, TX 

Rob Bishop, UT 

Doug Lamborn, CO 

Robert J. Wittman, VA 

Paul C. Broun, GA 

John Fleming, LA 

Tom McClintock, CA 

Glenn Thompson, PA 

Cynthia M. Lummis, WY 

Dan Benishek, MI 

Jeff Duncan, SC 

Scott R. Tipton, CO 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Steve Southerland, II, FL 

Bill Flores, TX 

Jon Runyan, NJ 

Markwayne Mullin, OK 

Steve Daines, MT 

Kevin Cramer, ND 

Doug LaMalfa, CA 

Jason T. Smith, MO 

Vance M. McAllister, LA 

Bradley Byrne, AL 

Eni F. H. Faleomavaega, AS 

Frank Pallone, Jr., NJ 

Grace F. Napolitano, CA 

Rush Holt, NJ 

Rau ́l M. Grijalva, AZ 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Gregorio Kilili Camacho Sablan, CNMI 

Niki Tsongas, MA 

Pedro R. Pierluisi, PR 

Colleen W. Hanabusa, HI 

Tony Ca ́ rdenas, CA 

Jared Huffman, CA 

Raul Ruiz, CA 

Carol Shea-Porter, NH 

Alan S. Lowenthal, CA 

Joe Garcia, FL 

Matt Cartwright, PA 

Katherine M. Clark, MA 

Vacancy 

Todd Young, Chief of Staff 

Lisa Pittman, Chief Legislative Counsel 

Penny Dodge, Democratic Staff Director 

David Watkins, Democratic Chief Counsel 

(III) 

CONTENTS 

Page 

Hearing held on Thursday, September 11, 2014 ................................................... 1 

Statement of Members: 

Hastings, Hon. Doc, a Representative in Congress from the State of 

Washington .................................................................................................... 1 

Prepared statement of ............................................................................... 3 

Huffman, Hon. Jared, a Representative in Congress from the State of 

California ....................................................................................................... 4 

Prepared statement of ............................................................................... 5 

Statement of Witnesses: 

Kendall, Hon. Mary, Deputy Inspector General, U.S. Department of the 

Interior ........................................................................................................... 6 

Prepared statement of ............................................................................... 7 

Additional Materials Submitted for the Record: 

Department of the Interior memorandum dated March 27, 2014 to Mary 

Kendall ........................................................................................................... 14 

Department of the Interior memorandum dated September 5, 2014 to 

Mary Kendall ................................................................................................ 15 

(1) 

OVERSIGHT HEARING ON THE OFFICE OF 

INSPECTOR GENERAL AND ITS ONGOING 

FAILURE TO COMPLY WITH A SUBPOENA 

FOR DOCUMENTS ABOUT A RECENT 

INVESTIGATION 

Thursday, September 11, 2014 

U.S. House of Representatives 

Committee on Natural Resources 

Washington, DC 

The committee met, pursuant to call, at 9:45 a.m., in room 1324, 

Longworth House Office Building, Hon. Doc Hastings [Chairman of 

the Committee] presiding. 

Present: Representatives Hastings, Lamborn, Huffman and 

Sablan. 

STATEMENT OF THE HON. DOC HASTINGS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON 

The CHAIRMAN. The committee will come to order and the Chairman notes a presence of a quorum, which under Rule 3(e) is two 

members, and we have maxed that here today. 

The Committee on Natural Resources is meeting today to hear 

testimony on an oversight hearing titled ‘‘Oversight of the Office of 

Inspector General and its Ongoing Failure to Comply With a 

Subpoena for Documents About a Recent Investigation.’’ 

Under Committee Rule 4(f), opening statements are limited to 

the Chairman and the Ranking Member. However, I ask unanimous consent to include any Members’ opening statements in the 

hearing record if submitted to the clerk by the close of business 

today, and without objection, so ordered. 

I will now recognize myself for 5 minutes. There are long-held 

concerns about the integrity and independence of the Department 

of Interior’s Office of Inspector General under the leadership of the 

Deputy Inspector General, Mary Kendall. A committee report released last year highlighted several examples of mismanagement 

and their ongoing issues that continue to undermine the credibility 

of the OIG’s work. 

The OIG is supposed to serve as an independent watchdog over 

the Department and report findings to Congress. Instead, Ms. 

Kendall has established an accommodating and deferential relationship between the OIG and the Department, hindering the 

OIG’s ability to conduct impartial, independent work. The OIG is 

currently in violation of a congressional subpoena for an 

unredacted copy of their report and documents on the Department’s 

rewrite of the 2008 Stream Buffer Zone Rule. 

Their report exposed mismanagement of the rulemaking process 

and significant ongoing problems. However, key parts of the report 

had been redacted including one section entitled ‘‘Issues With the 

2 

New Contract.’’ The committee has made multiple requests for this 

unredacted report and documents including the issuance of a subpoena, but the OIG refused to comply and says that the report is 

being withheld at the request of the Interior Department. 

Specifically, the Department’s Office of the Solicitor reviewed the 

OIG’s report and documents and identified what parts were to be 

redacted. Rather than serve as an independent watchdog of the 

Department, in this example, the OIG is now letting the Department call the shots. The OIG conducted a 2-year investigation, 

then handed all of the documents of the investigation to the very 

Department that was the subject of the investigation and then allowed the Department to go line by line through the documents 

and decide what would be provided to Congress. That is astounding. The OIG has given control over to the Department and is allowing it to dictate what should be provided to Congress pursuant 

to a subpoena. 

The OIG claims that the redacted material consists of an ongoing 

deliberative process related to rulemaking, but the OIG report is 

not created as part of the rulemaking and is not used in the furtherance of rulemaking. The report and documents were created 

solely by the OIG and remain in the possession and the control of 

the OIG. That is why it was absurd when Ms. Kendall said that 

we should seek these documents from the Department. They are 

OIG documents. 

Further, the OIG has failed to provide any reason for such redaction. Though we have been informed that Ms. Kendall has asked 

the Solicitor’s Office to prepare this, once again yielding her statutory power to the Department, she is supposed to be investigating. 

Finally, I am alarmed that the OIG appears to feel that it has to 

enter into a deferential relationship with the Department in order 

to have access to information. In a letter to the committee, Ms. 

Kendall wrote that in order to secure that level of access from the 

Department, the OIG, and I quote, ‘‘has agreed to protect privileged information,’’ end quote. 

Assistant Inspector General for Investigations, Robert Knox, testified before us in January saying, and I quote again, ‘‘The fear we 

have is if we don’t show that respect, we may lose that access that 

we need for investigations and audits in the future,’’ end quote. 

The IG Act provides unfettered access to documents and information in order for all Inspector Generals to have the necessary tools 

to maintain their independence and do their job as watchdogs. 

They shouldn’t have to fear about not having access if they don’t 

show them respect. 

Recently, 47 separate Inspector Generals wrote a letter to 

Congress reaffirming their authority under the IG Act to have access to all those agency records. Interestingly, Ms. Kendall did not 

sign this letter that defends the importance of the independent IGs. 

For over a year-and-a-half, I have been calling on President 

Obama to appoint a permanent IG for the Interior Department. It 

is ridiculous that the OIG has been without a permanent head for 

5 years. The credibility of the OIG has been tarnished under the 

leadership of Ms. Kendall and immediate steps should be taken to 

restore the independence and the trust in the office. 

[The prepared statement of Mr. Hastings follows:] 

3 

PREPARED STATEMENT OF THE HON. DOC HASTINGS, CHAIRMAN, COMMITTEE ON

NATURAL RESOURCES

There are long-held concerns about the integrity and independence of the 

Department of the Interior’s Office of Inspector General under the leadership of 

Deputy Inspector General Mary Kendall. A committee report released last year 

highlighted several examples of mismanagement and there are ongoing issues that 

continue to undermine the credibility of the OIG’s work. 

The OIG is supposed to serve as an independent watchdog over the Department 

and report findings to Congress. Instead, Ms. Kendall has established an accommodating and deferential relationship between the OIG and the Department, hindering 

the OIG’s ability to conduct impartial, independent work. 

The OIG is currently in violation of a congressional subpoena for an unredacted 

copy of their report and documents on the Department’s rewrite of the 2008 Stream 

Buffer Zone Rule. Their report exposed mismanagement of the rulemaking process 

and significant ongoing problems. 

However, key parts of the report have been redacted, including one section entitled ‘‘Issues with the New Contract.’’ The committee has made multiple requests for 

this unredacted report and documents, including the issuance of a subpoena, but the 

OIG refuses to comply and says that the report is being withheld at the request of 

the Interior Department. Specifically, the Department’s Office of the Solicitor reviewed the OIG’s report and documents and identified what parts were to be 

redacted. 

Rather than serve as an independent watchdog of the Department, the OIG is 

now letting the Department call the shots. 

The OIG conducted a 2-year investigation, then handed all of the documents of 

the investigation to the very Department that was the subject of the investigation, 

and then allowed the Department to go line-by-line through the documents and decide what would be provided to Congress. 

It’s astounding. The OIG has given control over to the Department and is allowing 

it to dictate what should be provided to Congress pursuant to a subpoena. 

The OIG claims that the redacted material consists of an ongoing deliberative 

process related to the rulemaking. But the IG report was not created as part of the 

rulemaking and was not used in the furtherance of the rulemaking. The report and 

documents were created solely by the OIG and remain in the procession and control 

of the OIG. That’s why it was absurd when Ms. Kendall said we should seek these 

documents from the Department instead. They are OIG documents. 

Furthermore, the OIG has failed to provide any reason for each redaction. Though 

we’ve been informed that Ms. Kendall has asked the Solicitor’s Office to prepare 

this—once again yielding her statutory power to the Department she is supposed 

to be investigating. 

Finally I’m alarmed that the OIG appears to feel that it has to enter into a deferential relationship with the Department in order to have access to information. 

In a letter to the committee, Ms. Kendall wrote that in order to secure that level 

of access from the Department, the OIG ‘‘has agreed to protect privileged information.’’ Assistant Inspector General for Investigations, Robert Knox, testified before 

us in January saying, ‘‘The fear we have is if we don’t show that respect, we may 

lose that access that we need for our investigations and audits in the future.’’ 

The IG Act provides unfettered access to documents and information in order for 

Inspector Generals to have the necessary tools to main their independence and do 

their jobs as watchdogs. They shouldn’t have to ‘‘fear’’ about not having access if 

they don’t show them respect. 

Recently, 47 separate Inspector Generals wrote a letter to Congress reaffirming 

their authority under the IG Act to have access to all agency records. Interestingly, 

Ms. Kendall did not sign this letter that defends the importance of independent IGs. 

For over a year-and-a-half I’ve been calling on President Obama to appoint a permanent IG for the Interior Department. It’s ridiculous that the OIG has been without a permanent head for 5 years. The credibility of the OIG has been tarnished 

under the leadership of Ms. Kendall and immediate steps should be taken to restore 

the independence and trust of the office. 

The CHAIRMAN. With that, I will recognize, sitting in for the 

Ranking Member, Mr. Huffman from California. 

4 

STATEMENT OF THE HON. JARED HUFFMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. HUFFMAN. Thank you, Mr. Chairman and welcome back, Ms. 

Kendall. 

The Interior Department’s Office of Inspector General found no 

evidence of misconduct or political interference in the ongoing 

Stream Protection rulemaking. Now, that should have been the end 

of it. It should have been case closed, but my Republican colleagues 

seem to have trouble accepting facts that contradict their conspiracy theories, so now we are badgering the investigator once 

again for not confirming what Republicans want to be true, but just 

isn’t. 

The OIG’s report and supporting documents provided to this 

committee, contain some redactions requested by the Department 

of Interior and according to the OIG, these redactions concern the 

substance of the ongoing Stream Protection rulemaking which the 

Department identified as predecisional and privileged. They are irrelevant, however, to the central question of whether the Interior 

Department officials acted improperly in this rulemaking and on 

that question, we have all the information we need. 

The Interior Department has produced roughly 14,000 pages of 

documents to this committee on the rulemaking. Contractors who 

worked on the rulemaking also provided the committee with 25 

hours of audio recordings, meetings with Federal regulators, and 

now we have the Office of Inspector General’s findings, including 

supporting documents and interview transcripts with key players 

that are mostly unredacted. 

The OIG has told the Chairman that the still redacted information is irrelevant to the Majority’s oversight interest. Ms. Kendall 

explained in a letter this past May that, quote, ‘‘When we become 

aware of fraud and other serious problems, abuses and deficiencies 

relating to the administration of programs and operations . . . we 

ensure such information is presented in a timely manner to the relevant congressional committees. . . As we have repeatedly advised, 

however, we did not find fraud or other serious problems with respect to the ongoing rulemaking process.’’ 

The OIG report confirmed the findings of a Democratic staff report issued more than 2 years ago. We have learned nothing new 

this entire Congress. So let me be clear: The Minority believes that 

congressional oversight is essential for a well-functioning government, and where there is a legitimate well-founded interest in executive branch documents, we would and will support and work 

with the Majority to obtain those documents. 

The problem here is this investigation has no purpose. The 

Majority has just demanded documents for the sake of demanding 

documents. It is another example where they seem to prefer to 

have the issue so we can fight about it instead of having the information. This is clearly wasteful. The Interior Department has 

spent more than $2 million and diverted roughly 34,000 hours of 

staff time dealing with the Chairman’s document demands, but it 

also threatens to erode our system of executive branch oversight, 

so there are much more serious implications to what we are doing 

here. 

5 

The Inspector General’s Office often sometimes faces difficulty 

obtaining access to records, especially privileged records, but this 

OIG has obtained memorandum from every Interior Secretary since 

Gale Norton directing Department employees to provide all requested information to the OIG, including privileged information. 

Now, if the OIG were to do as the Majority demands and release 

all information identified as privileged by the Department, it could 

comprise the ability of this Inspector General and future Inspector 

Generals to obtain sensitive information and conduct effective investigations in the future. 

The Chairman also has issued a whopping 11 subpoenas over the 

last two Congresses. Subpoenas are sometimes necessary, but when 

they are handed out like Halloween candy, their force is diminished and we in Congress become easier to ignore. That is especially true when the subpoenas are frivolous, like the one we are 

talking about here today. 

Indeed, it is telling that, at the end of this Congress, we are having a hearing about documents and nothing that actually matters 

to the American people. The sad truth is that the Majority’s investigations have taught us nothing important; they have caused nothing to improve. We leave this Congress as we started, demanding 

documents without purpose and wasting everyone’s time. 

I yield the balance of my time. 

The CHAIRMAN. I thank the gentleman for his statement. 

[The prepared statement of Mr. Huffman follows:] 

PREPARED STATEMENT OF HON. JARED HUFFMAN, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF CALIFORNIA

Thank you, Mr. Chairman. 

The Interior Department’s Office of Inspector General found no evidence of 

misconduct or political interference in the ongoing Stream Protection rulemaking. 

That should have been case closed, but Republicans seem to have trouble accepting facts that contradict their conspiracy theories. So now we’re here badgering the 

investigator for not confirming what Republicans know must be true—but isn’t true. 

The OIG’s report and supporting documents provided to this committee contain 

some redactions requested by the Interior Department. According to the OIG, these 

redactions concern the substance of the ongoing Stream Protection rulemaking, 

which the Department identified as pre-decisional and privileged. 

They are irrelevant, however, to the central question of whether Interior 

Department officials acted improperly in the Stream Protection rulemaking. 

On that question, we have all the information we need. The Interior Department 

has produced roughly 14,000 pages of documents to the committee on the Stream 

Protection rulemaking. Contractors who worked on the rulemaking also provided 

the committee with 25 hours of audio recordings of meetings with Federal regulators. And now we have the Office of Inspector General’s findings, including supporting documents and interview transcripts with key players that are mostly 

unredacted. 

The OIG has told the Chairman that the still redacted information is irrelevant 

to the Majority’s oversight interests. Ms. Kendall explained in a letter this past May 

that, quote, ‘‘When we become aware of fraud and other serious problems, abuses, 

and deficiencies relating to the administration of programs and operations . . . we 

ensure such information is presented in a timely manner to the relevant congressional committees. . . As we have repeatedly advised, however, we did not find 

fraud or other serious problems with respect to the ongoing rulemaking process.’’ 

The OIG report confirmed the findings of a Democratic staff report issued more 

than 2 years ago. We have learned nothing new in this entire Congress! 

Let me be clear: The Minority believes that congressional oversight is essential 

for a well-functioning government. And where there is a legitimate, well-founded 

interest in executive branch documents, we would support and work with the 

Majority to obtain those documents. 

6 

The problem here is that this investigation has no purpose. The Majority is just 

demanding documents for the sake of it. 

This is clearly wasteful—the Interior Department has spent more than $2 million 

and diverted roughly 34,000 hours of staff time dealing with the Chairman’s document demands. But it also threatens to erode our system of executive branch 

oversight. 

Inspectors General often face difficulty obtaining access to records, especially privileged records. But this OIG has obtained memorandum from every Interior 

Secretary since Gale Norton directing Department employees to provide all requested information to the OIG, including privileged information. 

If the OIG did as the Majority demands and released all information identified 

as privileged by the Department, it could compromise the ability of the OIG to obtain sensitive information and conduct effective investigations in the future. 

The Chairman also has issued a whopping 11 subpoenas over the last two 

Congresses. Subpoenas are sometimes necessary, but when they are handed out like 

Halloween candy, their force is diminished and we in Congress become easier to ignore. That’s especially true when the subpoenas are frivolous, like the one we are 

talking about here today. 

Indeed, it’s telling that, at the end of this Congress, we are having a hearing 

about documents and nothing that actually matters to the American people. The sad 

truth is that the Majority’s investigations have taught us nothing important. They 

have caused nothing to improve. We leave this Congress as we started: demanding 

documents without purpose and wasting everyone’s time. 

The CHAIRMAN. Ms. Kendall, you have been here before. You 

know how this process works. Your full statement will appear in 

the record, but we would like you to keep your oral remarks within 

the 5 minutes. The green light means that you are doing well. 

When the yellow light comes on, it means you have a minute and 

when the red light comes on we would ask you to summarize your 

final point and then we can get to the question period. 

And with that, Ms. Kendall, you are recognized for 5 minutes. 

STATEMENT OF THE HON. MARY KENDALL, DEPUTY 

INSPECTOR GENERAL, U.S. DEPARTMENT OF THE INTERIOR 

Ms. KENDALL. Thank you, Mr. Chairman, and good morning. 

Good morning, Congressman Huffman, and, I guess, that is it for 

the committee. I would say good morning to other Members. 

This committee has subpoenaed information from the Office of 

Inspector General regarding its Stream Protection Rule report that 

the Department of the Interior has claimed is privileged and should 

not be disclosed. My office has stated repeatedly that this dispute 

is between the committee and DOI, not the OIG, and we have 

urged the committee to engage with DOI to resolve this issue. 

Instead, the committee has continued to pressure the OIG to release privileged documents and information that, if released, would 

not only jeopardize the OIG’s ability to obtain privileged information from DOI in the future but would also exacerbate an existing 

problem in the IG community regarding timely access to information and documents from their agencies and departments. 

We have explained repeatedly that the claim of privilege is DOI’s 

to assert, not the OIG’s. We have also made this position clear to 

DOI which concurs that it alone has the responsibility and authority to resolve the issues in dispute. We also explained that we have 

a longstanding understanding with DOI that it would not decline 

to provide privileged information to the OIG, so long as we give 

DOI an opportunity to identify cognizable privileges, as it has here. 

7 

We have also expressed our concern that release of privileged information, in this instance by the OIG, would seriously impair our 

access to the same in the future. Of even greater concern is that 

to release information against the assertion of privilege by DOI 

would add to the argument that other Federal agencies and departments would use to withhold information from their respective 

OIGs. This is not simply my assessment. It is a conviction shared 

by my colleagues in other IG offices. 

I find it curious that this committee is pressuring my office to do 

something that would jeopardize access in the future for itself and 

other OIGs, while your colleagues in both the House and Senate, 

in a bipartisan letter to OMB, have expressed their concern about 

the difficulties that Inspectors General have encountered in trying 

to obtain documents from their respective agencies. 

In fact, the Senate Judiciary Committee held a bipartisan hearing on Tuesday and the House Oversight and Government Reform 

Committee held its second bipartisan hearing just yesterday on 

this very issue. Like the witnesses at these hearings, we acknowledge that the IG Act is very clear, that IGs are to have access to 

all documents and information applicable to the department or 

agency they oversee. 

As a practical matter, however, other OIGs have had significant 

difficulty in gaining access to documents and employee interviews 

regardless of this statutory provision. Whether privilege is properly 

asserted by DOI in this matter involving ongoing rulemaking, can 

only be resolved between this committee and the Department or 

through litigation in Federal Court. The OIG has not taken a position in this dispute but has been placed squarely in the middle of 

it by this committee. 

Our position that the information at issue is the Department’s to 

claim and defend privilege for is also consistent with the position 

of other IG offices. We are not aware of any other congressional 

committee issuing subpoenas to an Inspector General to obtain departmental or agency documents or information. I again urge this 

committee to use the procedural tools available to it to pursue access to documents and information from the Department of the 

Interior rather than pressure the OIG to take action that would 

jeopardize our ability to do our job in the future as well as the 

abilities of our OIG colleagues to do their jobs. 

The information that remains at issue is the Department’s, not 

the OIG’s; the assertion of privilege is the Department’s, not the 

OIG’s; and the waiver of the privilege is the Department’s, not the 

OIG’s. I will do my best to answer questions that Members may 

have. 

[The prepared statement of Ms. Kendall follows:] 

PREPARED STATEMENT OF MARY L. KENDALL, DEPUTY INSPECTOR GENERAL, 

DEPARTMENT OF THE INTERIOR

This hearing arises out of a series of letters dated December 23, 2013, March 13, 

2014, April 16, 2014, and July 18, 2014, and a subpoena dated March 25, 2014, 

issued by this committee to the Office of Inspector General (OIG) for the 

Department of the Interior (DOI) seeking documents and information concerning an 

OIG investigation regarding the Stream Protection Rule that is being promulgated 

by DOI. The OIG has responded in detail to each of these letters and to the subpoena in letters of our own. 

8 

To summarize the position of my office, this committee has subpoenaed information from our Stream Protection Rule report that DOI has claimed is privileged and 

should not be disclosed. This dispute is between the committee and DOI, not the 

OIG, and we have urged the committee to engage with DOI to resolve this issue. 

Instead, the committee has continued to pressure the OIG to release privileged documents and information that, if released, would not only jeopardize the OIG’s ability 

to obtain privileged information from DOI in the future, but would also exacerbate 

a problem in the IG community regarding timely access to information from their 

agencies and departments. 

We have explained repeatedly that the claim of privilege is DOI’s to assert—not 

the OIG’s—and we have repeatedly asked that the committee attempt to resolve the 

issue with DOI. We also explained that we have a long-standing understanding with 

DOI that it would not decline to provide privileged documents to the OIG so long 

as we gave DOI an opportunity to identify cognizable privileges, as it has here. We 

have also repeatedly expressed our concern that release of privileged information in 

this instance by the OIG will seriously impair our access to the same in the future. 

Of even greater concern is that to release information against the assertion of 

privilege by DOI would add to the argument that other Federal agencies and departments would use to withhold information from their respective OIGs. This is not 

simply my assessment; it is a conviction shared by my colleagues in other IG offices. 

It is curious that this committee is pressuring the OIG to do something that 

would jeopardize access in the future for itself and other OIGs while your colleagues 

in both the House and Senate, in a bipartisan letter to OMB, have expressed their 

concern about the difficulties that Inspectors General have encountered in trying to 

obtain documents from their respective agencies. 

The Chairman’s letters have contended that a claim of executive privilege has not 

been asserted as a basis for the continued withholding of the subject information. 

This contention fails to recognize how the executive branch asserts a claim of executive privilege. We have noted that every President since Lyndon Johnson has 

asserted executive privilege in shielding documents from Congress. The practice of 

recent administrations is that only the President can assert executive privilege and 

will only do so after receiving a recommendation from the Attorney General. The 

current practice also involves efforts to resolve disputes through a judicially recognized process of accommodation. This process has been described by one Attorney 

General as: ‘‘The accommodation required is not simply an exchange of concessions 

or a test of political strength. It is an obligation of each branch to make a principled 

effort to acknowledge, and if possible to meet, the legitimate needs of the other 

branch’’ (Assertion of Executive Privilege, 5 Op. O.L.C. 27, 31 (1981)). 

Whether privilege is properly asserted by DOI in this matter involving ongoing 

rulemaking can only be resolved by the parties to the dispute—this committee and 

the Department—or through litigation in Federal Court. The OIG does not take a 

position in such a dispute; we note, however, that other administrations have 

claimed the privilege in the context of ongoing rulemaking. In 1981, Attorney 

General William French Smith recommended and President Reagan asserted executive privilege to subpoenas from a congressional committee for documents concerning ongoing deliberations regarding regulatory action by the Interior Secretary. 

(See Assertion of Executive Privilege, 5 Op. O.L.C. 27.) As we have explained to the 

committee and committee staff multiple times, the OIG cannot usurp the President’s 

power to assert executive privilege if other efforts to resolve the dispute fail. 

One of the Chairman’s letters asserted that our actions to avoid getting pulled 

into an ongoing dispute between this committee and the Department is indicative 

of our lack of independence. We feel certain that the opposite is true—that our 

independence and neutrality in a dispute between the committee and the Department that has constitutional implications can only be advanced by the position we 

have repeatedly expressed: the information the committee seeks belongs to the 

Department, and the committee should be seeking that information from the 

Department, not from the OIG. We have also made this position clear to DOI, which 

concurs that it alone has the responsibility and authority to resolve the issues in 

dispute. 

Our position is also consistent with the position of other IG offices—if documents 

or information in the possession of the OIG that the agency claims as privileged is 

sought by a congressional committee, the OIG would refer the committee to the 

agency. We are not aware of any other congressional committee issuing subpoenas 

to an Inspector General to obtain departmental or agency documents or information. 

We recognize that the IG Act provides ‘‘that each Inspector General, in carrying 

out the provisions of this Act, is authorized—to have access to all records, reports, 

audits, reviews, documents, papers, recommendations, or other material available to 

9 

the applicable establishment which relate to programs and operations with respect 

to which that Inspector General has responsibilities under this Act.’’ 

As a practical matter, however, other OIGs have had significant difficulty in gaining access to documents and employee interviews regardless of this statutory provision, as was addressed in the January 15, 2014 hearing before the House Committee 

on Oversight and Government Reform, Strengthening Agency Oversight: Empowering the Inspectors General. The testimony from this hearing makes clear that the 

language of the IG Act alone does not assure OIGs access to agency documents and 

information. 

The OIG for DOI is somewhat unique in that we secured a memorandum from 

every one of the Secretaries of the Interior since Gale Norton directing DOI employees to provide all requested information to the OIG, including privileged information. The OIG, in order to facilitate such access, has agreed to review such privilege 

assertions and determine whether such claims have a constitutional basis and are 

consistent with prior assertions by the executive branch. 

The OIG’s unique situation was even noted in the Staff Report for Chairman 

Darrell E. Issa, House Committee on Oversight and Government Reform, and 

Chairman Lamar Smith, House Committee on Science, Space and Technology, entitled Whistleblower Reprisal and Management Failures at the U.S. Chemical Safety 

Board, dated June 19, 2014. The report notes that the disclosure of privileged information to an OIG would not waive privilege because the OIG is technically part of 

its department or agency. The issue of providing privileged information to the OIG 

was also recently cited in an August 5, 2014 letter to Congress, signed by 47 IGs, 

which said: ‘‘While valid privilege claims might in certain circumstances appropriately limit the . . . OIG’s subsequent and further release of documents, a 

claim of privilege provides no basis to withhold documents from the . . . OIG in the 

first instance’’ (emphasis added). 

I again urge this committee to use the procedural tools available to it to pursue 

access to documents and information from the Department of the Interior, rather 

than pressure the OIG to take action that would jeopardize our ability to do our 

job in the future, as well as the abilities of our OIG colleagues to do their jobs. The 

information that remains at issue is the Department’s, not the OIG’s; the assertion 

of privilege is the Department’s, not the OIG’s; and the waiver of privilege is the 

Department’s, not the OIG’s. 

The CHAIRMAN. I will recognize myself for the purpose of 

questioning now. 

In my opening statement, I made an observation of my understanding. In your opening statements you made an observation of 

your understanding. In several letters, Ms. Kendall, to this committee and again in your written testimony today, you articulate 

several conflicting viewpoints about the position you are taking on 

behalf of the Department. 

On the one hand, you state that you are, and I quote, ‘‘not taking 

a position,’’ end quote, of whether these documents are, in fact, 

privileged. Yet, you also claim that the committee continues to, and 

I quote, ‘‘pressure the OIG to release privileged documents,’’ end 

quote, and spend several paragraphs explaining your understanding that these documents are, in fact, privileged. 

Now, let me be clear. Your office conducted an investigation and 

created a report of your findings. You have withheld these findings 

from the Congress in violation of the IG Act and in violation of this 

subpoena. Under the spurious claim that the information contained 

in the report that you drafted is privileged. You then claim that 

your office is not taking a position. However, the Department has 

not asserted a claim of privilege, and you have not asked this committee to hold the subpoena in abeyance while the claim of executive privilege is asserted by the Department. 

10 

Your claims that you are being put in the middle of a disagreement between this committee and the Department, in my view, is 

disingenuous. The committee has subpoenaed a report that your office, your office, OIG, within the Department of Interior drafted, 

not documents that were used in the ongoing rulemaking. If the 

Department had sought a claim of executive privilege of these documents and then the committee subpoenaed you for them, that 

would be a different situation. Here, the Department simply told 

you what they wanted withheld, and you obliged. You even had the 

Department make the redactions for you. 

So let me ask you this, these are very simple questions: Has the 

Department sought a claim of executive privilege from the White 

House regarding these documents? 

Ms. KENDALL. Mr. Chairman, not that I know of, but that would 

be a question that would need to be asked of the Department. 

The CHAIRMAN. So as far as you know, that has not been done? 

Ms. KENDALL. As far as I know. 

The CHAIRMAN. Is anything preventing the Department from 

seeking a claim of privilege from the White House? 

Ms. KENDALL. Not that I know of, Mr. Chairman. 

The CHAIRMAN. Have you asked the Department to assert a 

claim of privilege on these documents? 

Ms. KENDALL. Mr. Chairman, I have asked the Department to 

provide me a document that expresses their position on this 

information. 

The CHAIRMAN. I didn’t ask you that. Have you asked the 

Department to assert a claim of privilege on these documents that 

we are asking, that we subpoenaed? 

Ms. KENDALL. It is not my position to do so, sir. 

The CHAIRMAN. So you haven’t asked, then, obviously. 

Ms. KENDALL. No I have not. 

The CHAIRMAN. Have you told the Department that absent a 

valid claim of privilege that you are compelled to comply with the 

congressional subpoena? 

Ms. KENDALL. Mr. Chairman, there is a process by which 

privilege is asserted—— 

The CHAIRMAN. I didn’t ask you that. What I asked you is, have 

you told the Department that absent a valid claim of privilege 

under the IG Act, you are compelled to comply with a congressional 

subpoena? 

Ms. KENDALL. I believe it would be the committee’s position to 

tell the Department that, not mine. 

The CHAIRMAN. I just find that answer—all right. I just don’t 

know, let me ask one final question. I think I know what the answer is going to be, not satisfactory to me. Absent a valid assertion 

of executive privilege, are you not compelled to comply with the 

validly issued congressional subpoena? 

Ms. KENDALL. Absent a valid assertion, I would say yes, but in 

this case, the Department has provided information to us that—— 

The CHAIRMAN. But it is not an assertion of executive privilege. 

Is that correct? 

Ms. KENDALL. Mr. Chairman, I would be glad to provide you the 

documents that the Department has provided us and you can make 

your own decision on whether it is valid or not. 

11 

The CHAIRMAN. I am not—all right. 

Ms. Kendall, you can tell that I am a bit frustrated because what 

we are asking is, again, just for the record, something that your office created. 

Ms. KENDALL. I understand that. 

The CHAIRMAN. And the Office of the Inspector General was created long before I came to Congress to have, quote, ‘‘independent 

oversight and access to all documents so that Congress in their responsibility to review issues would have that information.’’ You 

have done that in your IG investigation of the previous rulemaking. 

And that is what we are asking about. That is all we are asking 

about. 

My time has expired. I recognize the gentleman from California. 

Mr. HUFFMAN. Thank you, Mr. Chairman. 

I think we need to be very precise with some of these words that 

really have legal significance, so I want to follow up on the 

Chairman’s point about whether findings that you made in your investigation were actually withheld or redacted, as opposed to information that may have been the subject of a claim of privilege by 

the Department. 

So Ms. Kendall, let me ask you just very directly, did you make 

any findings that were withheld or redacted from this committee? 

Ms. KENDALL. No, sir. 

Mr. HUFFMAN. I thought so. 

Ms. Kendall, the Inspector General Act requires you to keep the 

Secretary of Interior and Congress fully informed concerning fraud 

and other serious problems, abuses, deficiencies relating to the administration, programs and operations. However, the information 

the Majority is demanding from you does not concern anything 

close to that standard of seriousness; is that correct? 

Ms. KENDALL. That is correct. 

Mr. HUFFMAN. And so had you found misconduct, deficiencies, et 

cetera, as specified in the Act, would you have reported that information to this committee? 

Ms. KENDALL. In the ongoing rulemaking, yes, I would have. 

Mr. HUFFMAN. But you made no such findings? 

Ms. KENDALL. No, we did not. 

Mr. HUFFMAN. I think it is important to remember, as we have 

this disagreement about documents and assertions of privilege by 

the Department, that the underlying rulemaking that has been targeted by the Majority is a Stream Protection Rule involving the 

practice of mountaintop removal mining. 

It is a practice that is destroying Appalachian communities, 

threatening public health, devastating the environment and there 

is no doubt that the rulemaking would probably require the coal industry to do some additional things to protect the environment and 

public health in Appalachian communities. Yet we have so changed 

the subject and gotten so wrapped around the axle that that fundamental point has been lost. 

I want to thank you for your patience and for your appearance 

before this committee, and I would yield the balance of my time. 

The CHAIRMAN. The Chair recognizes the gentleman from 

Colorado, Mr. Lamborn. 

12 

Mr. LAMBORN. Thank you, Mr. Chairman. Thank you for having 

this important hearing. 

Ms. Kendall, the investigation your office conducted shows that 

contractors were asked to change numbers, that this occurred after 

the job loss numbers were leaked, and that OSM spent millions of 

dollars and several years to have nothing to show for it. The report 

also discussed other, quote, ‘‘issues with the new contract,’’ unquote, issues that you have determined Congress has no right to 

know about. 

We have repeatedly asked you to provide the report your office 

prepared in accordance with the requirements of the Inspector 

General Act; you have repeatedly refused to do so. A subpoena was 

issued on March 25 of this year for the unredacted version of the 

report your office created. Although you have written letters back, 

on Tuesday you provided a few more sentences, but most of what 

we are seeking is still missing. 

Now, apparently, you concede that these documents that we are 

subpoenaing were created by your office. Is that true? 

Ms. KENDALL. That is true. 

Mr. LAMBORN. That they were created during the course of your 

duties under the Inspector General’s Act. Is that true? 

Ms. KENDALL. Yes, sir. 

Mr. LAMBORN. And that they remain in your possession, custody 

or control? 

Ms. KENDALL. Yes, sir. 

Mr. LAMBORN. OK. So here is what we have. You created a 

report using the authority under the IG Act and that same Act requires you to keep Congress fully and currently informed. By providing a different report to Congress, one that is heavily redacted, 

you have failed to keep Congress fully and currently informed. 

You are withholding documents at the request of the Department 

in violation of a subpoena. You and your general counsel have confirmed that the documents are in your possession, custody and 

control; and you have just reconfirmed that. 

To your knowledge, has the President exerted executive privilege 

over these documents? 

Ms. KENDALL. To my knowledge, no. 

Mr. LAMBORN. OK. And have you asked the Department to seek 

a claim of privilege? 

Ms. KENDALL. I answered the Chairman about that; no, I have 

not. 

Mr. LAMBORN. OK. Do you intend to comply with the subpoena 

that our committee has properly given to you? 

Ms. KENDALL. Mr. Lamborn, I have asked the committee multiple times to seek this information from the Department. The information is contained in the OIG report, but the information is the 

Department’s, not the OIG’s. 

The Department has expressly said it would work with this committee to accommodate, and that is the process by which this kind 

of information is supposed to go through, but the committee has 

not engaged the Department in this particular instance since April 

of 2013. 

Mr. LAMBORN. So we have no right to subpoena you? 

Ms. KENDALL. You have subpoenaed me. 

13 

Mr. LAMBORN. Well, we have every right to do so. It was properly 

done. You have been under subpoena for 6 months now. You have 

failed to comply. You have not provided this committee with the 

documents we have properly sought for. I believe you should be 

held in contempt. 

Do you have any reason to say why you should not be held in 

contempt? 

Ms. KENDALL. I certainly do, sir, because this information is the 

Department’s. If I can go back to Mr. Issa’s hearing yesterday, he 

said that the reason IG should get privileged information is because they are a part of the executive branch. I do not feel that I 

can, as a part of the executive branch, usurp the Department’s 

claim of privilege or usurp the President’s claim of privilege. 

Mr. LAMBORN. Ms. Kendall, let me interrupt. We are asking for 

your report. Why can’t you give us your report? 

Ms. KENDALL. You are asking for the Department’s information. 

Mr. LAMBORN. No, we are asking for your report. 

Mr. Chairman, I yield back. 

The CHAIRMAN. Let me correct for the record that you just stated 

in response to a question from Mr. Lamborn that this committee 

has not interacted with the Department since April of 2013. 

Ms. KENDALL. On this issue. 

The CHAIRMAN. No, that is not correct. There has been—I don’t 

know where you got that information. Where did you get that 

information? 

Ms. KENDALL. Well, that was the last letter that I understood 

you sent to the Department. 

The CHAIRMAN. No, there have been discussions on the staff level 

with the Department on this. So—— 

Ms. KENDALL. I stand corrected. 

The CHAIRMAN. You stand corrected, all right. 

Now, you said that the Department gave you a reasoning of 

privilege, I think I heard you say that, of why you should not give 

your report to us. Would you clarify what I thought I heard you 

say in my initial line of questioning? 

Ms. KENDALL. Yes, sir. The Associate Solicitor for General Law, 

Ed Keable, has provided us with two memoranda that express their 

position on these documents and expressly ask that we ask the 

committee to engage with them, not with the OIG, to resolve this 

issue. I would be happy to provide those documents to you. 

The CHAIRMAN. You have not provided them. When will you 

provide those to us, then? 

Ms. KENDALL. I can provide them to you this afternoon, sir. 

The CHAIRMAN. All right. I wish you would do so. 

Ms. KENDALL. I will do that. 

[The information follows:] 

14 

Memorandum 

To: Mary Kendall, Deputy Inspector General 

From: Edward T. Keable, Deputy Solicitor—General Law 

Subject: Response to House Natural Resources Committee Subpoena Dated 

March 25, 2014 

The Department understands that the Office of the Inspector General (OIG) has 

received a subpoena dated March 25, 2014 from the House Natural Resources 

Committee (HNRC) demanding production of the unredacted version of the Report 

of Investigation (ROI) into the efforts of the Office of Surface Mining (OSM) to 

revise its Stream Protection Rule (SPR) and which the OIG provided to the 

Committee in redacted form on March 18, 2014; transcripts of interviews with OSM 

and other DOI employees and employees of contractors engaged by the OSM to 

assist in the drafting of the SPR; and investigating agents’ notes concerning these 

interviews and other aspects of the ROI. 

In response to earlier oversight requests, the Department previously reviewed the 

redacted information the Committee now demands through its subpoena and 

concluded that the information relates to the ongoing rulemaking process for the 

SPR. The information demanded relates to important Executive Branch 

confidentiality interests and is deliberative and pre-decisional information that, if 

provided to the Committee, could compromise the independence and integrity of the 

still on-going rulemaking process. 

The Secretary of the Interior and the HNRC Chairman have also discussed the 

sensitivity of information related to the on-going rulemaking process. In a January 

15, 2014, letter to the Chairman, the Secretary summarized that exchange: ‘‘During 

our conversation, you acknowledged the Department’s interest in protecting this 

information and I hope that our mutual understanding can form the foundation for 

us to work together in a way that respects our mutual Constitutional interests.’’ 

The information now demanded of the OIG by the Committee in its March 25 

subpoena is the very same information the Committee Chairman has already agreed 

the Department has a cognizable interest in protecting from disclosure. 

We therefore continue to respectfully request that you decline to produce to the 

Committee any information that relates to the ongoing rulemaking process for the 

SPR. We also request that you direct the Committee to Ms. Sarah Neimeyer, 

Director, DOI Office of Congressional and Legislative Affairs, regarding the 

Committee’s interest in this information and to reach a mutually agreeable 

accommodation on this matter. 

cc: Sarah Neimeyer, Director, DOI OCL 


89835.001.eps
15 

Memorandum 

To: Mary Kendall, Deputy Inspector General 

From: Edward T. Keable, Deputy Solicitor—General Law 

Subject: Response to House Natural Resources Committee Subpoena Dated 

March 25, 2014 

The Department understands that you have been invited to testify before the House 

Natural Resources Committee (Committee) on September 11,2014, regarding your 

response to the Committee’s March 25, 2014, subpoena seeking production of the 

unredacted Report of Investigation (ROI) into the efforts of the Office of Surface 

Mining (OSM) to revise its Stream Protection Rule (SPR) and related documents. 

In a March 27, 2014, memo, I informed you that the Department reviewed the 

redacted information sought in the subpoena and concluded that certain information 

relates to important Executive Branch confidentiality interests and is deliberative 

and pre-decisional information that, if provided to the Committee, could compromise 

the independence and integrity of the still ongoing SPR rulemaking process. I 

respectfully requested that you decline to produce to the Committee any such 

information that relates to the ongoing SPR rulemaking and asked that you refer 

the Committee to the Department to afford us the opportunity to reach an 

accommodation. 

In response to what the Department understands to be the Committee’s specific 

concerns about the appropriateness of some of the Department’s requested 

redactions in the IG’s initial response to the Committee, the Department has again 

reviewed the ROI and supporting documents and has agreed, as a part of the 

accommodation process between the Legislative and Executive branches, that 

factual assertions and some deliberative information that do not harm important 

Executive Branch interests may be revealed to the Committee. We have provided 

your staff with that information. However, the Department finds no reason to alter 

its conclusion about the release of the remaining deliberative, pre-decisional 

information contained in those documents. 

The Department has not yet announced the availability of a proposed rule, and 

internal, deliberative discussions among employees of the Department and its 

contractors about the SPR are ongoing. These discussions, which will determine the 

scope and content of the rule to be proposed, the alternatives to be considered, and 

appropriate environmental and economic analytical models to be employed, are the 

heart of the deliberative and pre-decisional information surrounding the SPR 

rulemaking that the Department seeks to protect. 

The Department stands on solid legal ground in its efforts to protect its predecisional deliberations regarding the SPR. Courts have recognized that aspects of 

the deliberative process privilege have roots in the constitutional separation of 

powers. It has also been long-standing Executive Branch policy recognized by both 

political parties that protecting internal Executive Branch deliberations is one of the 

significant interests encompassed by the doctrine of executive privilege, and this 

confidentiality interest is heightened when the deliberations are ongoing. Thus, 

draft rulemaking documents prepared during the course of ongoing deliberations 

clearly fall within the scope of executive interests. The release of such information 

could severely compromise the independence and integrity of the Executive Branch’s 

rulemaking process. 

The Department therefore continues to respectfully request that you decline to 

produce to the Committee any information we have identified to you that relates 

to our executive interests in the ongoing rulemaking process for the SPR. I also 

again ask that you direct the Committee to Ms. Sarah Neimeyer, Director, DOI 

Office of Congressional and Legislative Affairs, regarding the Committee’s interest 

in this information to afford the Department the opportunity to work with the 

Committee to attempt to accommodate their interests. 

cc: Sarah Neimeyer, Director, OCL 


89835.002.eps
16 

The CHAIRMAN. OK. That is all I have. 

Mr. Huffman. 

Mr. HUFFMAN. Thank you, Mr. Chair. 

I would just note that if the Majority was interested in asking 

the Solicitor this question directly, she was sitting in the chair 

right next to you yesterday in a hearing. 

Ms. KENDALL. I was hoping she would be here today, sir. 

Mr. HUFFMAN. Yes, and that question was not posed. So I think 

we are left with a situation where the Majority has, for some reason, preferred to bring the Inspector General’s Office before this 

committee to answer questions about assertions of privilege that 

were made by the Department, not by you, to disregard the fact 

that you have made finding after finding that there was nothing 

wrong found in your investigation with this rulemaking. You have 

shared those findings completely without redaction with the committee, and yet questions about the Department’s assertions of 

privilege continue to be asked as if there is an issue or controversy 

here. 

So there is still no there there to this whole process, and I am 

sort of left with the statement I concluded with in my opening, that 

we have learned nothing, but we have sure spent a lot of time and 

money chasing documents. 

The CHAIRMAN. Gentleman yield back? 

Mr. HUFFMAN. Yes. 

The CHAIRMAN. Chair recognizes the gentleman from Colorado, 

Mr. Lamborn. 

Mr. LAMBORN. Thank you, Mr. Chairman. 

And before we go on, could the staff please put up on the screen 

Slide 1. OK. 

And that is what we were referring to earlier, Ms. Kendall. This 

is all that we have received from your report. Maybe there are a 

few words that were given on Tuesday, but basically that is what 

we are faced with, unfortunately. 

Now, we have discussed the IG Act a little bit already, but I have 

a question about a different section. Section 5 of the Act requires 

that you, quote, ‘‘keep the head of the Department and the 

Congress fully and currently informed.’’ You provided one version 

of a report to the Department and a different, less detailed version 

of that report to Congress, withholding vital information at their 

request. How does this decision comport with the requirement to 

keep Congress and the head of the Department fully and currently 

informed? 

And if the staff could put up Slide 6, please, with that specific 

language so we can all see it. 

Ms. KENDALL. Congressman Lamborn, first, I would note that 

the previous exhibit was 2 pages out of a 30-page report and only 

one of them was heavily redacted. That pertains to the ongoing 

rulemaking which is an executive branch responsibility, and the 

Department has claimed that they have an interest in maintaining 

the privilege of deliberative process. 

And that is the only information relative to this entire report 

that we have been willing to accept as a claim of privilege. 

Mr. LAMBORN. Now, how often does it happen that you provide 

separate reports, one to the Department and one to Congress? 

17 

Ms. KENDALL. Rarely. 

Mr. LAMBORN. Rarely. In fact, this is probably a unique 

situation? 

Ms. KENDALL. It is. 

Mr. LAMBORN. OK. So we have one report provided to the 

Department and one to Congress. I don’t see how you are in compliance with that requirement, that Congress be fully and currently 

informed. 

How do you determine what reports are included in the 

semiannual report to Congress that your office provides? 

Ms. KENDALL. We include what we determine internally as significant reports. I understand this one was left out of our semiannual report inadvertently. I have been told by staff that it was 

not input into the system until October, which would have made 

it—it should have gone into the March semiannual report, but I 

have made sure that it will be in the semiannual report that we 

issue at the end of October, or at the beginning of October. 

Mr. LAMBORN. OK. So you admit that that mistake was also 

made? 

Ms. KENDALL. That mistake was made, yes. 

Mr. LAMBORN. And will that report be in its full form that the 

Department received, or are you going to redact it again? 

Ms. KENDALL. The semiannual report is a summary of reports, 

and it will contain the bulk of the information in summary form 

of this report. 

Mr. LAMBORN. So we won’t have the full and currently informed 

type of document that we are hoping to get? 

Ms. KENDALL. Mr. Lamborn, we have a very significant differing 

opinion on that. 

Mr. LAMBORN. We sure do. 

Let’s see, one of the redacted versions of the report shows that 

the date is February 28, 2013. The report was not released until 

December 20, 2013, 10 months later. Why was that report so long 

in being released? 

Ms. KENDALL. I don’t personally know where the February date 

comes from, but our reports take a very long time to get released, 

going through a process of review and editing and then issuance. 

Mr. LAMBORN. Was the Department providing input to you? Did 

they express concerns about the content that they wanted to 

suppress? 

Ms. KENDALL. No, sir. When we issue a report to the Department, we issue it. They have, in the case of an investigative report, 

90 days to respond to us. 

Mr. LAMBORN. But this was 10 months. So their 90 days came 

and went and 10 months went by, 7 more months. 

Ms. KENDALL. I don’t know when the report was actually issued 

to the Department. 

Mr. LAMBORN. Does every department that the Inspector 

General’s Office deals with get that kind of opportunity to dictate 

what is released to Congress? 

Ms. KENDALL. I don’t know what other departments do or don’t 

do, but in this case, there is, in my view, a valid assertion of deliberative process privilege that we needed to respect in order to prevent the problems that other IGs have about gaining access. I 

18 

think it would significantly impair our ability if we released this 

information over the Department’s assertion of privilege. 

Mr. LAMBORN. So they are acting wrongfully, and you are taking 

it out on us? 

Ms. KENDALL. I don’t believe they are acting wrongfully, sir. I 

have asked the committee over and over to engage them on this 

very issue. It is their privilege to defend and to waive. 

Mr. LAMBORN. Mr. Chairman, I yield back. 

The CHAIRMAN. Time of the gentleman has expired. 

The chair recognizes the gentleman from the Northern Marianas, 

Mr. Sablan. 

Mr. SABLAN. Thank you very much, Mr. Chairman. And I yield 

my time to Mr. Huffman from California. Thank you. 

Mr. HUFFMAN. I thank the gentleman. 

Could we put Exhibit 6 back up on the screen, please. 

The reason that we have a disagreement about this duty of the 

Inspector General to keep Congress fully and currently informed is 

because this exhibit is picking and choosing language from the 

statute. 

There is no obligation to keep Congress fully and currently informed about what you had for breakfast or every conversation 

that you had with anybody in the Department of Interior. The Act 

actually, if it were properly and fully quoted on this section, is 

quite specific on what you are supposed to keep Congress fully and 

currently informed about, and it specifies fraud, serious problems, 

abuses and deficiencies relating to the administration of programs 

and operations. 

So let’s ask the question once again. I suspect the answer is still 

going to be the same. But Ms. Kendall, did you at any time find 

fraud, serious problems, abuses and deficiencies in your 

investigation? 

Ms. KENDALL. No, sir. 

Mr. HUFFMAN. Thank you. 

The CHAIRMAN. Ms. Kendall, clearly, there are differences of 

opinion here on the IG and your responsibility as Acting Inspector 

General, and clearly this issue is maybe larger system-wide simply 

by the mere fact that 47 IGs, roughly half of them, have signed letters saying that they are not getting the cooperation from the agencies over which they have responsibility. Now, that larger issue is 

certainly above the pay scale of this committee. 

But the question is, I guess, ultimately, is the Office of Inspector 

General, which was supposed to be independent, it was created 

again before I was here, any Member here was in the Congress, 

and it was designed as part of the oversight process, and when we 

feel as a committee, I mean, whatever information is given, the 

judgment of that information, whether it is valid or not, is really 

the committee. 

We ask for the information, and depending on what the subject 

matter is, if it is satisfactory, OK, it is satisfactory. But it sounds 

to me that what you are attempting to do or what your actions are 

from my point of view is you are acting as a referee and not allowing us to make the determination if it is important. I think that 

is very serious. I don’t know where this leads. 

19 

Mr. Huffman talked about the Stream Buffer Rule. I know that 

that was promulgated before he was elected. There is a lot of controversy about it, mainly because the Bush administration has 

spent 5 years dealing and coming up with a Stream Buffer Rule 

that was similarly thrown out, and a new one was put in place and 

then the contractors were fired. I mean, that is pretty serious business. And they were fired because information was leaked that it 

would cost jobs. Well, OK, boy, that has an affect on the economy. 

Shouldn’t the people know why? And all we were asking about was 

your report of how that happened. 

Ms. KENDALL. Mr. Chairman—— 

The CHAIRMAN. We weren’t asking about the rulemaking. You 

keep confusing that. 

Ms. KENDALL. Except that our report does talk about what happened with the contractor who was not fired but their contract was 

let to expire. Our concern in looking at this, and we reported it out 

in the first 29 pages of the report, what happened to the contractor 

and whether or not there was improper political influence exerted 

over the contractor and the numbers. And we determined—well, we 

didn’t determine, we just presented the facts, quite frankly. 

The CHAIRMAN. Well, there is a part there, however, I don’t have 

it right in front of me, that says that trouble with the contractor, 

or something to the effect—yes, in fact, the part that is redacted 

is issues with the new contract. 

So, this issue, absent executive privilege, we think that that report should come to us. You have a different view. Maybe what you 

are going to give us as to what the Department in the memorandum, maybe that will enlighten us. Hope springs eternal. But 

I am confident that that probably will not happen. 

So if there is no further business to come before the committee, 

committee stands adjourned. 

[Whereupon, at 10:26 a.m., the committee was adjourned.] 

Æ