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Week Ending August 1, 2008

H.R.6388 To provide additional authorities to the Comptroller General of the United States, and for other purposes.

Once the General Accounting Office now the General Accountability Office, the GAO helps Congress investigate waste, fraud and abuse in the federal government. To do so, the GAO needs unfettered access to federal agencies. The bill report holds that executive branch officials have made efforts to withhold information from the GAO thereby impeding Congress’ ability to legislate effectively, conduct meaningful oversight and audit the use of appropriated funds.

The bill specifies the GAO effort to obtain information about the operations of Vice President Cheney’s energy task force (Walker v. Cheney) was curtailed by a District Court decision that the Comptroller General did not have standing to enforce GAO’s right to information. Leadership does not agree with the court decision, holding that it invades Congress’ constitutional prerogatives to determine how best to carry out its investigative responsibilities.

To address the problem the bill clearly authorizes the GAO to pursue civil action if federal agencies improperly withhold federal records. The GAO is given the authority to interview federal employees when conducting evaluations and investigations and gives the authority to administer the Oath to witnesses, not just when auditing and settling accounts. The bill explains this provision as a legislative repudiation to the District Court decision.

GAO right to specific records is affirmed in the bill including records at the FDA and Centers for Medicare and Medicaid Services. The GAO is required to report to Congress if federal agencies do not cooperate. In one case, federal law prohibits proprietary business information from being available through a Freedom of Information request. The bill makes clear that FOIA does not apply to GAO and so those documents should also be made available. The GAO must prescribe procedures necessary to ensure that trade secrets and other sensitive information is protected from public disclosure and remains confidential.

The GAO is to report annually to Congress on cooperation by federal agencies.

Sponsor:  Rep. Henry Waxman (D-CA-30^th)

Vote: Passed House by voice vote July 29, 2008

Cost to the taxpayers: “CBO estimates that implementing H.R. 6388 would have no significant effect on the federal budget. The additional authorities provided by the bill would facilitate GAO's audit procedures and other activities. The requirement to protect confidential information would have no effect because the agency already has such procedures in place.”

Earmark Certification:   H.R. 6388 does not include any congressional earmarks, limited tax benefits, or limited tariff benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.

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MORE INFORMATION

SECTION-BY-SECTION

Section 1: Short title

The short title of the bill is the `Government Accountability Office Improvement Act of 2008.'

Section 2: Authority to obtain records

This section makes clear that Congress authorizes GAO to pursue civil actions if federal agencies or the White House improperly withhold federal records. In litigation arising from GAO's efforts to obtain information about the operations of Vice President Cheney's energy task force, a federal district court held that the Comptroller General lacked standing to enforce GAO's right to information (Walker v. Cheney, 230 F. Supp. 2d 51 (D.D.C. 2002)). This case was wrongly decided and misconstrued congressional intent regarding the role of the Comptroller General. The decision was also an improper invasion into Congress' constitutional prerogatives to determine how best to carry out its investigative responsibilities. While another court considering this issue would almost certainly reach a different decision, passing new legislation is the most expedient way to confirm the authority of the Comptroller General. For this reason, this section contains express authorization from Congress to the Comptroller General to pursue litigation if documents are improperly withheld from GAO, without the need for additional approval as the Walker v. Cheney court incorrectly suggested. In effect, this provision represents a legislative repudiation of the court's decision in Walker v. Cheney.

While GAO has had a longstanding right of access to agency records, its audit, evaluation, and investigation efforts have occasionally been frustrated by a lack of willingness on the part of agency officials and employees to discuss the information contained in those records, as well as background information relevant to programs under review. In addition, many agency activities are not documented for subsequent audit, and cooperation from these individuals provides the only viable means for GAO to obtain critical information about these activities. Accordingly, this section also enhances GAO's existing access authority by providing an express right to interview agency officers and employees under section 716(a) of Title 31.

Section 3: Administering oaths

This section amends 31 U.S.C. Sec. 711 to allow the Comptroller General greater authority, subject to appropriate safeguards, to administer oaths to witnesses. Presently, section 711 authorizes the Comptroller General to administer oaths when auditing and settling accounts. When GAO was established in 1921, auditing and settling accounts were its principal focus, but that is no longer the case. The Comptroller General has been called upon to perform many other audit, investigative, and adjudicative roles for the Congress. These roles periodically raise situations involving potential criminal or ethical violations or conflicting testimony or assertions concerning material and sensitive subjects. In such situations, the ability to administer oaths can be an important tool for the Comptroller General to accomplish the Comptroller General's work for the Congress.

Section 4: Access to certain information

Section 4 adds a new section 721 to title 31 to ensure that provisions contained in the Social Security Act, the Federal Food, Drug, and Cosmetic Act, and the Hart-Scott-Rodino Act are not construed to limit GAO's rights of access to agency information.

The new section 721(a) is intended in part to correct an erroneous interpretation by the Department of Health and Human Services of provisions of the Social Security Act pertaining to the Medicare prescription drug benefit (Part D). Under its interpretation, the Department has refused to disclose certain information related to Medicare Part D to GAO. The new section 721(a) provision confirms GAO's right to obtain information from the Department and ensures that GAO is able to conduct congressionally requested and statutorily required audits, including audits of Parts C and D of the Medicare program. The Committee is aware that there are efforts by the Ways and Means Committee to pass similar corrective legislation to clarify the rights that other congressional support agencies, like the Congressional Research Service, have to this information. The Committee fully supports these efforts, but could not include those provisions in this bill because it does not have jurisdiction over legislative branch agencies other than GAO.

The Food and Drug Administration, citing a provision of the Federal Food, Drug, and Cosmetic Act, has taken the position that it will only disclose trade secrets information to GAO for studies conducted at the request of a chair of a committee or subcommittee of jurisdiction, and only when the requests for the studies specifically refer to GAO's need for such information. The new section 721(b) is designed to remove any doubt as to GAO's authority to obtain trade secrets information from the Food and Drug Administration, including when GAO is conducting an investigation at the Comptroller General's initiative.

The Federal Trade Commission has cited provisions of the Hart-Scott-Rodino Act to deny GAO access to pre-merger information and will only provide such information to the chairman of a committee or subcommittee of Congress. Hart-Scott-Rodino exempts from public disclosure, under the Freedom of Information Act (FOIA), the pre-merger materials required to be filed with the FTC and the Department of Justice. However, because FOIA does not apply to GAO, access to these pre-merger filings under GAO's basic access authority should continue to apply. The new section 721(c) makes clear GAO's authority to obtain this information from the Federal Trade Commission and the Department of Justice.

Section 5: Comptroller General reports

This section amends 31 U.S.C. Sec. 719 by adding two new reporting requirements. The first is designed to provide critical information to the Congress regarding the overall cooperation of federal agencies in all aspects of the work of GAO. It does so by requiring that for all agencies subject to the Chief Financial Officers Act of 1990 (31 U.S.C. 901-903), and other agencies designated by the Comptroller General, the Comptroller General will report to Congress annually regarding the overall degree of cooperation exhibited by the agencies or their staff in making personnel available for interviews, in providing written answers to questions, in submitting to an oath authorized by the Comptroller General, in granting access to records, in providing timely comments to draft reports, in adopting report recommendations, and in responding to such matters as the Comptroller General deems appropriate. Section 5 also requires that the Comptroller General report to Congress, as soon as practicable, when an agency or other entity does not respond to a request regarding the matters discussed above.

These reporting requirements will enable the Comptroller General to keep Congress apprised of the general state of cooperation between GAO and other agencies and entities concerning the work of the office. While the Comptroller General will advise Congress as soon as practicable when GAO concludes that an agency or entity is not reasonably cooperating in an audit or investigation, it is anticipated that the annual report will provide greater insight into the ongoing relationships between GAO and the agencies it audits and investigates in a balanced and fair manner.

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