House Republicans, IG spar once again over stream-rule documents

E&E News
By Manuel Quinones
September 11, 2014

Rep. Doug Lamborn (R-Colo.) said today the Interior Department's acting inspector general, Mary Kendall, should be held in contempt of Congress for failing to turn over documents following a March subpoena.

But Kendall countered that the House Natural Resources Committee's beef is with Interior, not her office. Turning over the documents from her office, she said, could jeopardize her ability to conduct investigations.

The dispute was the latest in a long series of disagreements between Republican lawmakers and Kendall.

"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," Chairman Doc Hastings (R-Wash.) said.

Lamborn then told Kendall: "I believe you should be held in contempt."

In a report released last year, the IG cleared Interior's Office of Surface Mining of wrongdoing in its ongoing rulemaking to protect waterways from coal mining.

At issue was whether the agency played politics with potential job-loss numbers. While Kendall's office found OSM pressured former contractors to change job loss calculations, it didn't do so improperly (E&ENews PM, Dec. 20, 2013).

"The problem here is this investigation has no purpose," said Rep. Jared Huffman (D-Calif.). "The majority has demanded documents for the sake of demanding documents. This is clearly wasteful."

But panel Republicans are furious at the IG for producing two separate reports, one redacted for Congress, based on input from the Office of the Solicitor, and another to be held in the Obama administration. Kendall said it was something that "rarely" happens.

GOP panel leaders suspect the documents contain information about new problems with contractors (Greenwire, Jan. 9). And they say current law compels the IG to turn them over.

Kendall has withheld those documents at Interior's request, saying it's part of an agreement to protect documents deemed privileged. In this case, she said, the documents are part of an ongoing rulemaking.

"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," Kendall said, "and the waiver of privilege is the department's, not the OIG's."

Huffman stepped in to press that the information was "pre-decisional and privileged." And he questioned Hasting's issuing of many subpoenas to the administration for documents.

Like with previous disputes over subpoenas, Hastings noted that the administration has not officially claimed executive privilege, at least not publicly. He asked, "Have you asked the department to assert a claim of privilege on these documents?"

Kendall responded, "It is not my position to do so, sir."

The information may be from Interior officials, but GOP lawmakers say all they are asking for is unredacted versions of the IG's report. And they question Kendall giving Interior a say over what to do with the office's own document.

Kendall said turning over the documents without Interior's input could "significantly impair" the OIG's ability to seek information in the future. Lamborn asked, "So they're acting wrongfully and you're taking it out on us?" Kendall disagreed.

Earlier this year, dozens of inspectors general sent a letter to lawmakers expressing concern over some Obama administration officials for withholding information.

Kendall was not part of that letter. But although she appeared reluctant to criticize Interior leaders, she suggested constraints in obtaining 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," she said, "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."

Panel leaders said conversations were ongoing with Interior over the documents, even as they believe Kendall can hand them over herself.

At one point in the hearing, Lamborn asked, "Do you intend to comply with the subpoena?" Kendall's reply: "I have asked the committee multiple times to seek the information from the department."

While pushing for contempt appears unlikely, the committee seems committed to continuing its scrutiny of OSM's rulemaking. The agency has estimated it will have a proposal by December.