Department of Homeland Security: Observations on GAO Access to Information on Programs and Activities
Published: 2007-04-25T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: In testimony before this committee and the House Committee on Appropriations, Subcommittee on Homeland Security in February 2007, GAO stated that the Department of Homeland Security (DHS) has not made its management or operational decisions transparent enough to allow Congress to be sure that the Department is effectively, efficiently, and economically using its billions of dollars of annual funding. GAO also noted that its work for Congress to assess DHS's operations has, at times, been significantly hampered by long delays in obtaining access to program documents. Following the aforementioned testimonies, GAO was asked to testify about its access issues. This testimony provides information on (1) the scope of GAO's work, (2) GAO protocols for accessing agency information, (3) DHS processes for working with GAO, (4) access issues GAO has encountered, and (5) steps GAO has taken to address these issues.
section_title: What GAO Found
paragraphs: To carry out its audit and evaluation authorities, GAO has a broad statutory right of access to agency records. Auditing standards require that analysts and financial auditors promptly obtain sufficient, competent, and relevant evidence to provide a reasonable basis for any related findings and conclusions. Therefore, prompt access to all records and other information associated with these activities is needed for the effective and efficient performance of GAO's work. This is also necessary in order for the Congress to be able to conduct its constitutional responsibilities in a timely and effective manner. Since DHS began operations in 2003, GAO has provided major analyses of the department's plans and programs for transportation security, immigration, Coast Guard, and emergency management. GAO has also reported on DHS's management functions such as human capital, financial management, and information technology. GAO has processes it applies in working with departmental agencies across the federal government that work well. DHS's adopted processes have frequently impeded GAO's efforts to carry out its mission by delaying access to documents required to assess the department's operations. This process involves multiple layers of review by department- and component-level liaisons and attorneys and results in frequent and sometimes lengthy delays in obtaining information. GAO recognizes that the department has legitimate interests in protecting certain types of sensitive information from public disclosure. GAO shares that interest as well and follows strict security guidelines in handling such information. GAO similarly recognizes that agency officials will need to make judgments with respect to the manner and the processes they use in response to GAO's information requests. However, to date, because of the processes adopted to make these judgments, GAO has often not been able to do its work in a timely manner. GAO has been able to eventually obtain information and answer audit questions, but the delays experienced at DHS impede GAO's ability to conduct audit work efficiently and to provide timely information to congressional clients.

section_title: Letter
paragraphs: I am pleased to be here to discuss the subject of access by the Government  Accountability Office to information at the Department of Homeland  Security (DHS). My statement will provide information on the scope of our  work, our protocols regarding how we normally get access to agency  information, DHS processes for responding to our requests, access issues  we have encountered at DHS, and, finally, steps we have taken to address  these issues.
subsections: section_title: GAO Performs a Broad Range of Work for Congress
paragraphs: GAO has broad statutory authority under title 31 of the United States Code  to audit and evaluate agency financial transactions, programs, and  activities. To carry out these audit and evaluation authorities, GAO has a  broad statutory right of access to agency records. Using the authority  granted under title 31, we perform a range of work to support Congress  that, among other things, includes the following:    Evaluations of federal programs, policies, operations, and  performance:    For example, evaluations of transportation security programs  related to passenger-screening operations at airports, our work  to assess enforcement of immigration laws, and our work on the  U.S. Coast Guard’s Deepwater acquisition to replace its aging  fleet.
Management and financial audits to determine whether public funds  are being spent efficiently, effectively, and in accordance with  applicable laws:    For example, DHS’s appropriations acts for fiscal years 2002  through 2006 have mandated that we review expenditure plans  for the U.S. Visitor and Immigrant Status Indicator Technology  (U.S.VISIT) program.
Investigations to assess whether illegal or improper activities may  have occurred:    For example, we investigated the Federal Emergency  Management Agency’s (FEMA) Individuals and Households  Program to determine the vulnerability of the program to fraud  and abuse in the wake of Hurricanes Katrina and Rita.
Constructive engagements in which we work proactively with  agencies, when appropriate, to help guide their efforts toward  transformation and achieving positive results:    For example, we have worked to establish such an arrangement  with the Transportation Security Administration (TSA) on its  design and implementation of the Secure Flight Program for  passenger pre-screening for domestic flights whereby we could  review documents on system development as they were being  formulated and provide TSA with our preliminary observations  for its consideration. Congress mandated TSA certify that the  design and implementation of the program would meet   10 specific criteria. Congress also mandated that we review   and comment on TSA’s certification. TSA’s certification has   not yet occurred.
section_title: Auditing Standards and Our Protocols Address Accessing Information
paragraphs: We carry out most of our work in accordance with generally accepted  government auditing standards. Our analysts and financial auditors are  responsible for planning, conducting, and reporting their work in a timely  manner without internal or external impairments. These standards require  that analysts and financial auditors promptly obtain sufficient, competent,  and relevant evidence to provide a reasonable basis for any related  findings and conclusions. Therefore, prompt access to all records and  other information associated with these activities is needed for the  effective and efficient performance of our work.
Our work involves different collection approaches to meet the evidence  requirements of generally accepted government auditing standards. Such  evidence falls into four categories:    physical (the results of direct inspection or observation);    documentary (information created by and for an agency, such as  letters, memorandums, contracts, management and accounting  records, and other documents in various formats, including electronic  databases);  testimonial (the results of face-to-face, telephone, or written inquiries,  interviews, and questionnaires); and    analytical (developed by or for GAO through computations, data  comparisons, and other analyses).
We have promulgated protocols describing how we will interact with the  agencies we audit. We expect that agencies will promptly comply with our  requests for all categories of needed information. We also expect that we  will receive full and timely access to agency officials who have  stewardship over the requested records; to agency employees responsible  for the programs, issues, events, operations, and other factors covered by  such records; and to contractor personnel supporting such programs,  issues, events, and operations. In addition, we expect that we will have  timely access to an agency’s facilities and other relevant locations while  trying to minimize interruptions to an agency’s operations when  conducting work related to requests for information.
We provide an appropriate level of security to information obtained during  the course of our work. We are statutorily required to maintain the same  level of confidentiality of information as is required of the agency from  which it is received, and we take very seriously our obligation to safeguard  the wide range of sensitive information we routinely receive. For example,  we ensure that GAO employees have appropriate security clearances to  access information. We also have well-established security policies and  procedures.
Timely access to information, facilities, and other relevant locations is in  the best interests of both GAO and the agencies. We need to efficiently use  the time available to complete our work to minimize the impact on the  agency being reviewed and to meet the time frames of our congressional  clients. Therefore, we expect that an agency’s leadership and internal  procedures will recognize the importance of and support prompt  responses to our requests for information. When we believe that delays in  obtaining requested access significantly impede our work, we contact the  agency’s leadership for resolution and notify our congressional clients, as  appropriate.
section_title: DHS Has Implemented Burdensome Processes for Working with GAO
paragraphs: Unlike those of many other executive agencies, DHS’s processes for  working with us includes extensive coordination among program officials,  liaisons, and attorneys at the departmental and component levels and  centralized control for all incoming GAO requests for information and  outgoing documents. In an April 2004 directive on GAO relations, DHS  established a department liaison to manage its relationship with us. In  addition, DHS has a GAO coordinator within all of its components and,  within the DHS General Counsel Office, an Assistant General Counsel for  General Law who provides advice on GAO relations. According to the  directive, the department liaison (1) receives and coordinates all GAO  notifications of new work, (2) participates in all entrance conferences, and  (3) notifies the Assistant General Counsel of new work to obtain  participation of counsel. The directive requires the Assistant General  Counsel to participate in all entrance meetings to ensure that the scope of  any request is clear and finite, and that mutual obligations between DHS  and GAO are met. The component coordinator handles all matters  involving GAO for the component, generally participates in GAO entrance  meetings, and seeks advice of component’s counsel, as appropriate.
The following figure illustrates the coordination of information among  DHS officials described above when we make a request for information.  Typically when we begin an engagement, we send a letter to the  department liaison to notify DHS that we are starting a new engagement  and we request an entrance meeting to discuss the work. During the  course of our review, we provide written requests for meetings and  documents to component coordinators using a DHS-prescribed form. The  component coordinators then forward our requests to program officials  and consult with component counsel, who may consult with the Assistant  General Counsel.
Figure 1. DHS Process for Working with GAO.
In a memo that transmitted the above directive to senior managers in DHS  components, the then-Under Secretary for Management emphasized the  importance of a positive working relationship between the two agencies.  The memo stated that failure to meet or brief GAO staffs in a timely  manner, as well as being viewed as nonresponsive to GAO document  requests, could result in tense and acrimonious interactions. The Under  Secretary also reminded senior officials that prompt and professional  discharge of their responsibilities to GAO requests could affect both DHS’s  funding and restrictions attached to that funding.
section_title: GAO Has Experienced Difficulties Accessing DHS Information
paragraphs: In testimony before this committee and the House Committee on  Appropriations, Subcommittee on Homeland Security in February 2007,  we stated that DHS has not made its management or operational decisions  transparent enough to allow Congress to be sure that the department is  effectively, efficiently, and economically using its billions of dollars of  annual funding.  We also noted that our work for Congress to assess  DHS’s operations has been significantly hampered by long delays in  obtaining access to program documents and officials. We emphasized that  for Congress, GAO, and others to independently assess the department’s  efforts, DHS would need to become more transparent and minimize  recurring delays in providing access to information on its programs and  operations.
At most federal agencies and in some cases within DHS, we obtain the  information we need directly from program officials, often on the spot or  very soon after making the request. For example, our work on the Secure  Border Initiative (SBI) has so far met with a very welcome degree of  access to both DHS officials and documents. SBI is a comprehensive  multiyear program established in November 2005 to secure U.S. borders  and reduce illegal immigration. One element of SBI is SBInet, the program  within the U.S. Customs and Border Protection (CBP) responsible for  developing a comprehensive border protection system of tactical  infrastructure, rapid response capability, and technology. The fiscal year  2007 Department of Homeland Security Appropriations Act required that,  before DHS could obligate $950 million of the $1.2 billion appropriated for  SBInet, it had to prepare a plan for expending these funds, have it  reviewed by GAO, and then submit it to Congress for approval. The plan  was to be submitted within 60 days of the act’s passage.
CBP officials provided us office space at CBP headquarters, gave us access  to all levels of SBInet management, and promptly provided us with all the  documentation we requested, much of which was still in draft form and  predecisional. DHS met the 60-day requirement when it submitted its plan  to the Appropriations Committees on December 4, 2006. We met our  responsibilities by being able to review the plan as it developed over the  60-day period, and to provide the results of our review to the House and  Senate Appropriations Committees on December 7 and 13, 2006,  respectively.
In contrast to the access we were afforded in the above example, the  process used in most of our interactions with DHS is layered and time- consuming. As discussed earlier, we are asked to submit each request for  documents to the component coordinator rather than directly to program  officials even if we have already met with these officials. Also as  mentioned earlier, the component coordinator often refers our request to  component counsel. And the Assistant General Counsel for General Law in  DHS’s General Counsel’s office may become involved. The result is that we  often wait for months for information that in many cases could be  provided immediately. In some cases, DHS does not furnish information  until our review is nearly finished, greatly impeding our ability to provide a  full and timely perspective on the program under review.
Each access issue with DHS requires that we make numerous and  repetitive follow-up inquiries. Sometimes, despite GAO’s right of access to  information, DHS delays providing information as it vets concerns  internally, such as whether the information is considered deliberative or  predecisional. At other times, we experience delays without DHS  expressing either a concern or a cause for the delays. On other occasions,  DHS is unable to tell us when we might obtain requested information or  even if we will obtain it.
We have encountered access issues in numerous engagements, and the  lengths of delay are both varied and significant and have affected our  ability to do our work in a timely manner. We have experienced delays  with DHS components that include CBP, U.S. Immigration and Customs  Enforcement (ICE), FEMA, and TSA on different types of work such as  information sharing, immigration, emergency preparedness in primary and  secondary schools, and accounting systems. I have examples of two  engagements to share with you today that illustrate the types of delays we  experience and how they have affected the timing of our work.
My first example is of an engagement related to detention standards for  aliens in custody, where the team working on this engagement  experienced delays of up to 5 months in obtaining various documents. The  objective of this work, which is still under way and is being done for the  House Committee on Homeland Security, is to assess ICE efforts to review  facilities that house alien detainees, determine whether the facilities have  complied with DHS standards, and determine the extent that complaints  have been filed about conditions in the facilities. Some of the facilities are  owned and operated by DHS; others are operated under contract with  DHS. In order to determine the extent to which facilities are complying  with DHS standards, we requested that ICE provide copies of the reports  of inspections it conducted in 2006 at 23 detention facilities. We requested  those reports in December 2006 and did not receive the final four of the  inspection reports until just last week, after DHS departmental  intervention. We had several meetings and discussions with DHS officials  including program officials, liaisons, and attorneys, and we were never  provided a satisfactory answer about the reason for this 5-month delay. We  also experienced delays on this engagement obtaining a copy of the  contract for detainee phone services between ICE and the phone service  contractor. DHS took 1 month to provide the contract and redacted almost  the entire document because a DHS attorney contended the information  was “privileged.” We followed up with DHS officials to communicate that  our authority provided for access to this type of information and then  waited another 2 weeks before we were able to get an unredacted copy of  the contract.
In another engagement being done at the request of the then-Chairman of  the House Committee on Government Reform, we are reviewing an  emergency preparedness exercise that DHS conducted in June 2006 called  Forward Challenge 06. The purpose of the exercise was to allow agencies  to activate their continuity of operations plans, deploy essential personnel  to an alternate site, and perform essential functions as a means of  assessing their mission readiness. Our objective is to determine the extent  to which participating agencies were testing the procedures, personnel,  and resources necessary to perform essential functions in their continuity-  of-operations plans during the exercise. We began our work a few months  before the exercise and had arranged with DHS to observe the actual  exercise. However, 2 days before its start, DHS officials told us we would  not be permitted to observe the exercise and stated that after completion,  they would instead brief us on the exercise and the lessons they had  learned from it. They provided that briefing in August 2006, at which time  we requested relevant documentation to support the claims the DHS  officials made to us.
Subsequently, in November 2006, DHS provided us with one-third of the  agency after-action reports we requested but redacted key information,  including the identity of the participating agencies. DHS, however, was  reluctant to provide us with the balance of the documents requested,  stating that it considered these to be “deliberative materials” and  expressing concern that sharing these with us would have a significant and  negative impact on participants’ level of openness in future exercises.  Despite GAO’s right of access to the information, the involvement of GAO  and DHS officials at the highest level, and a letter of support from the  former and current chairman of the committee, we did not receive access  to the requested documentation until March 2007. Our report for this  engagement was to be issued in November 2006; because we did not  receive the needed information until March 2007, we will not be able to  issue our analysis until later this year.
section_title: GAO Has Taken and Suggested Steps to Resolve Access Issues with DHS
paragraphs: We have made good faith efforts to resolve access issues. Specifically, we  have undertaken many steps to work with DHS to resolve delays as  expeditiously as possible and gain access to information needed for our  work. At our audit team level we have asked staff to set reasonable time  frames for requesting DHS to provide information and arrange for meeting  and when we encounter resistance, to ensure that the information we  request is critical to satisfying the audit objectives. When delays occur, our  approach is to involve various management levels at both GAO and DHS,  beginning with lower-level managers and working up to the Comptroller  General and the Secretary. At each level, our managers and legal staff  contact their counterpart liaisons and counsel, component heads, or DHS  senior managers, as appropriate, either by telephone, e-mail, or letter, to  communicate our access authority and need for the information to satisfy  audit objectives. Our communication efforts have generally resulted in  obtaining the requested or alternative information, or making other  accommodations.
We have proposed to DHS that the department take several steps that  would enhance the efficiency of its process. First, our staff should be able  to deal directly with program officials after we have held our initial  entrance conference. If these officials have concerns about providing us  requested information, they can involve DHS liaison or coordinators.  Second, to the extent that DHS counsel finds it necessary to screen certain  sensitive documents, it should do so on an exception basis. Other  documents should be provided directly to us without prior review or  approval by counsel. We provide DHS several opportunities to learn how  we are using the information its officials provide us—we provide routine  updates on our work to program officials; we provide program officials,  liaisons, and counsel a “statement of facts” that basically describes what  we learned during the engagement; and we formally provide DHS a copy of  our draft report that contains our evidence, conclusions, and  recommendations for its comment. There is no reason to hold information  back from us when it has been made available to contractors, other federal  agencies, state and local governments, or the public, or when its only  sensitivity is that DHS considers it confidential or classified. The Secretary  of DHS and the Under Secretary for Management have stated their desire  to work with us to resolve access issues. We are willing to work with DHS  to resolve any access-related concerns. Nevertheless, we remain troubled  that the design and implementation of the current DHS process is  routinely causing unnecessary delays.
Mr. Chairman, this completes my prepared statement. I would be happy to  respond to any questions your or other members of the subcommittee may  have at this time.
section_title: Contact Information
paragraphs: For further information about this statement, please contact Norman J.  Rabkin, Managing Director, Homeland Security and Justice Issues, on  (202) 512-8777 or rabkinn@gao.gov.
Individuals making key contributions to this testimony include Linda  Watson, John Vocino, Jan Montgomery, Geoff Hamilton and Richard  Ascarate.
section_title: Appendix I: Key GAO Audit and Access Authorities
subsections: section_title: GAO’s Audit and Evaluation Authority
paragraphs: GAO has broad statutory authority under title 31 of the United States Code  to audit and evaluate agency financial transactions, programs, and  activities. Under 31 U.S.C. § 712, GAO has authority to investigate all  matters related to the receipt, disbursement, and use of public money.  Section 717 of title 31, U.S.C., authorizes GAO to evaluate the results of  programs and activities of federal agencies, on GAO’s own initiative or  when requested by either house of Congress or a committee of  jurisdiction. Section 3523(a) of title 31 authorizes GAO to audit the  financial transactions of each agency, except as specifically provided   by law.
section_title: GAO’s Access-to- Records Authority
paragraphs: To carry out these audit and evaluation authorities, GAO has a broad  statutory right of access to agency records. Under 31 U.S.C. § 716(a),  federal agencies are required to provide GAO with information about their  duties, powers, activities, organization, and financial transactions. When  an agency does not make a record available to GAO within a reasonable  period of time, GAO may issue a written request to the agency head  specifying the record needed and the authority for accessing the record.  Should the agency fail to release the record to GAO, GAO has the authority  to enforce its requests for records by filing a civil action to compel  production of records in federal district court.
A limitation in section 716, while not restricting GAO’s basic statutory  right of access, acts to limit GAO’s ability to compel production of  particular records through a court action. For example, GAO may not  bring such an action to enforce its statutory right of access to a record  where the President or the Director of the Office of Management and  Budget certifies to the Comptroller General and Congress (1) that a record  could be withheld under one of two specified provisions of the Freedom of  Information Act (FOIA) and (2) disclosure to GAO reasonably could be  expected to impair substantially the operations of the government.
The first prong of this certification provision requires that such record  could be withheld under FOIA pursuant to either 5 U.S.C. § 552(b)(5),  relating to inter-agency or intra-agency memorandums or letters that  would not be available by law to a party other than an agency in litigation  with the agency, or 5 U.S.C. § 552(b)(7), relating to certain records or  information compiled for law enforcement purposes.
The second prong of the certification provision, regarding impairment of  government operations, presents a very high standard for the agency to  meet. The Senate report on this section 716 limitation stated:  “As the presence of this additional test  makes  clear, the mere fact that materials sought are subject to 5 U.S.C.  552(b)(5) or (7) and therefore exempt from public disclosure does  not justify withholding them from the Comptroller General.  Currently GAO is routinely granted access to highly sensitive  information, including internal memoranda and law enforcement  files, and has established a fine record in protecting such  information from improper use or disclosure. Thus, in order for the  certification to be valid, there must be some unique or highly  special circumstances to justify a conclusion that possession by  the Comptroller General of the information could reasonably be  expected to substantially impair Government operations.”
The committee report also points out that the Comptroller General’s  statutory right of access to agency records is not diminished by the  certification provisions of the legislation. The certification simply allows  the President or Director of the Office of Management and Budget (OMB)  to preclude the Comptroller General from seeking a judicial remedy in  certain limited situations.
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