Oversight Matters

The Department of the Interior’s Failure to Cooperate with Congressional Oversight Requests


SEPTEMBER 26, 2019

Good morning Chairman Grijalva, Ranking Member Bishop, and members of the Committee. My name is Dan Jo:jani, and I am the Principal Deputy Solicitor for the United States Department of the Interior, an agency charged with protecting America's landscapes and heritage, fulfilling unique responsibilities to the Insular areas and our trust responsibilities to the American Indian tribes and their members, and overseeing the responsible development and use of our country’s natural resources.

At the outset, I would like to thank you, Mr. Chairman, for the opportunity to address the Committee's oversight interests and the Department’s robust accommodation of the many congressional requests throughout this session. As the Department has consistently stated, we recognize and respect the Committee's oversight role with respect to the varied activities of the Department.

I believe that ongoing communication between the Department and the Committee allows for a better mutual understanding of the respective interests of each separate branch of government. Importantly, this conversation can allow the Department to meet the legitimate oversight needs of the Committee while minimizing the impact on the Department's ability to carry out its missions and day-to-day work.

The judicially-recognized process of responding to Congressional requests, known as the accommodation process, has its roots in the United States Constitution, extensive case law, and long-standing practice. 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 in Response to a Congressional Subpoena, 5 Op. O.L.C. 27, 31 (1981)), This process is nonpartisan - administrations of both parties have relied upon it for decades, and it has been supported by top Department officials, both Democrats and Republicans alike.

Within the Department, the Office of the Solicitor, the Office of Congressional and Legislative Affairs, and the Office of the Executive Secretariat and Regulatory Affairs, work together with the Department's bureaus and offices to comply with congressional oversight requests. To manage these requests, the Department, in accordance with longstanding roles, responsibilities and processes, relies on dedicated career civil servants to collect, review, and timely produce responsive materials. The shared responsibility by bureaus and offices ensures that the Department cooperates with congressional oversight requests to the fullest extent, consistent with our constitutional and statutory responsibilities.

The Solicitor's Office plays a critical role in the Department's oversight process. My Office ensures that congressional oversight productions protect the legal interests of the Department, including our litigation and on-going rulemaking interests. We work closely with the Office of Congressional and Legislative Affairs and the Office of the Executive Secretariat and Regulatory Affairs to collectively fulfill the Department's oversight obligations.

At times, congressional committees request information that can implicate Executive Branch confidentiality interests. In these instances, the Department, under the leadership of Secretary Bernhardt, has remained dedicated to accommodating legitimate oversight requests and working to provide Congress with the information it seeks.

The Department has received a significant number of congressional requests from several different committees for information and documents in the 116th Congress. Since the government reopened in late January 2019, the Department has received at least 27 separate oversight requests and has worked diligently to respond to each as it is able. According to the Office of Congressional and Legislative Affairs, the Department and its bureaus have transmitted nearly three dozen substantive letters to assist oversight investigations and provide a deeper understanding of requested issues, resulting in the resolution of at least 6 separate matters. We have initiated productions in 17 different matters, several of which are now closed, while seeking to accommodate many other Committee requests through staff briefings and prioritization of requested records.

The production of responsive information is similarly robust, totaling over 13,500 documents consisting of more than 100,000 pages. Many of these productions have been accompanied by offers of briefings by subject matter experts and senior Department officials to better inform the Committee's interest in information.

The Department's pace of reply to oversight requests is also consistent with the previous Administration’s efforts. For instance, data acquired from the Department's Office of Executive Secretariat and Regulatory Affairs, which historical correspondence for the Department, shows that during the first 9 months of 2011 , after the Republican majority took control of the House of Representatives and conducted significant oversight of the Obama Administration, the Department received 21 congressional oversight requests and provided 38 letters and productions of documents and information. Correspondingly, as noted earlier, the Department has received 27 requests and provided more than 42 separate letters and document productions.

The Department's commitment to accommodating Congress's legitimate oversight functions and, at the same time, protecting important Executive Branch functions, is robust, and we have dedicated taxpayer resources to complying with these requests.

Additionally, the Department has requested to brief the Chairman on multiple occasions on the many ongoing requests of the Department. Although none of these offers have been accepted, Departmental staff have been able to meet with Committee staff to review requests on a few occasions and look forward to more such opportunities in the future.

I believe a non-partisan review of the Department's accommodation of the Committees' oversight requests reflects the Secretary's respect for Congress's authority as a co-equal branch of government. The Department will continue to diligently review and respond to unresolved and future oversight requests. I look forward to answering any questions the Committee has and I thank you again for the opportunity to testify today.


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