When the National Oceanic and Atmospheric Administration issued a report on the size of the BP oil spill
last year, one congressman had some questions about it. And six months later, he still does.
In fact, Rep. Raul Grijalva
(D-Ariz.), formerly the chairman and now ranking member of a House Natural Resources subcommittee, believes his efforts to learn more about the report have been stonewalled. He's so frustrated in his efforts that on Tuesday he sent a complaint letter
to the White House, alleging unacceptable redactions to the records he received from NOAA and refusal by political appointees at the Department of Commerce, of which NOAA is part, to work with his staff on the matter.
Furthermore, Grijalva raised several concerns about the scientific integrity of the report, noting that an early version of it listed a BP official as one of the reviewers and pointing out that input from technical experts at the EPA was ignored. (Grijalva believes this was because the White House was looking to score a public relations win regarding the effects of controversial chemical dispersants
, which were used to break up the oil.)
What may have first grabbed the congressman's attention was the widely recognized glib nature of the report, which sought to explain how much oil spilled into the Gulf of Mexico and what happened to it -- this in only four pages, with no calculations, but a very visually appealing pie chart.
Since Republicans now control the House, Grijalva is no longer the chairman of the National Parks, Forests & Public Lands subcommittee, but the questions he raised with the White House remain pertinent, and he planned to raise the stonewalling issue at a hearing Wednesday afternoon on the oil spill.
"A committee or subcommittee chair can initiate an investigation through informal . . . letters, interviews, or staff studies without the need for committee votes or minority participation, and the subjects of such actions can't determine who they will deal with on the committee," said Morton Rosenberg, an attorney and specialist in public law who recently retired from Congressional Research Service, an advisory group to Congress.
During his time in that role, Rosenberg was the go-to guy for congressional staffers trying to understand how to deal with difficult targets of congressional investigations. For the record, he said, administration officials who fail to respond to a congressional inquiry can be charged with a criminal offense under 18 USC 1505
, which covers penalties for obstructing a congressional inquiry.
In his letter to the president, Grijalva pointed out that large portions of the records he requested from NOAA were redacted, including entire e-mails. When the records were sent to his office, an agency official wrote that redactions were made to protect "pre-decisional and deliberative material." But while such material can be redacted in response to a Freedom of Information Act request, Congress is not governed by FOIA when the request is made by a committee or subcommittee chairman.
According to Grijalva's staff, the initial inquiry to NOAA was ignored by Commerce Department employees because, the staff was told, the request "wasn't on committee letterhead." There is, however, no protocol stating how a chairman should send such requests; as a former congressional staffer myself, I can say with some authority that legislative affairs liaisons are well advised to hop to such requests, regardless of how they arrive. (Congressional committees can make life miserable for agencies -- by cutting budgets, badgering appointees during hearings, and in the case of the Senate, placing a hold on political nominees.)
Later, when Grijalva's staff called to complain about the redactions, they were told that the agency was asserting "agency privilege." Again, there is no legal precedent for such a claim -- Congress is exempt from Privacy Act
restrictions that protect personal information from disclosure, and may request information typically denied from disclosure
to the public under the Freedom of Information Act.
The only real claim to refuse disclosure is "executive privilege
," a time-honored but rarely invoked right of the president to withhold information from Congress. But that was not cited in this case.
By denying Grijalva these records, Commerce officials have only kicked the can down the road. In his letter, Grijalva warned the president, "I take my oversight duties seriously, and I feel it appropriate to inform you that I will continue my efforts with all colleagues interested in doing the same."
It's likely that Republicans, who are now running the House, hold the same view. (Efforts to reach the new chairman of the Natural Resources Committee, Rep. Doc Hastings of Washington state, and Grijalva's successor on the subcommittee, Rep. Rob Bishop of Utah, were not immediately successful.)
Paul D. Thacker is an investigator at the Project on Government Oversight and former investigator on the Senate Finance Committee.