Justice Department Watchdog Fears Redaction Creep Will Obstruct Oversight

The Justice Department’s internal watchdog says his problems getting access to critical information while performing his job will only get worse now because of an ambiguous legal opinion from the department, which says inspectors general do not in fact have access to “all” information.

“Just yesterday I’m told in our review of the FBI’s use of the bulk telephony statute — a review that this committee has very much been interested in our doing —  we got records with redactions,” Department of Justice Inspector General Michael Horowitz said during a Senate Judiciary Committee hearing on Tuesday.

On July 23, the Justice Department’s Office of Legal Counsel published a lengthy opinion delving into the powers of the Inspectors General, concluding that, contrary to the law that established the job in the first place, they can have timely access to information “most” of the time rather than all.

The opinion said that IGs should not be given access to some information unless there is a defined counterintelligence or legal purpose, to be decided by a team of the department’s own lawyers—not the IG’s.

The OLC opinion specified three instances when separate federal statues might delay or restrict IG access to sensitive records: grand jury materials, wiretap records, and credit reports. However, the FBI has listed ten other types of information of “concern” that it may choose to limit access to in the future, just in case the disclosure of the documents breaks any other laws.

The ambiguity of the opinion might make that possible, despite the OLC’s insistence that it didn’t “intend” to override Congress.

That’s what concerns Horowitz and others who worry that allowing the FBI to comb through its own documents before allowing the inspector general to inspect them defeats the purpose of independent oversight.

Photo of Justice Department Inspector General Michael Horowitz, Associate Deputy FBI Director Kevin Perkins, Associate Deputy Attorney General Carlos Uriarte, and Acting Commerce Inspector General David Smith testifying at the Senate Judiciary Hearing on August 5.