[Congressional Record: October 2, 2008 (Senate)]
[Page S10468-S10470]
REPORT OF THE SBA INSPECTOR GENERAL
Mr. KERRY. Mr. President, on behalf of Senator Snowe and myself, I
rise today to express our concern that the Small Business
Administration has taken steps to hide from public view the details of
one of the largest lending scandals in that agency's history. As
chairman and ranking member of the Senate Committee on Small Business
and Entrepreneurship, we take our oversight role of the SBA seriously,
and we believe that transparency is vital to a well-functioning
government.
On July 11, 2007, the SBA's Office of Inspector General issued a
report on the agency's oversight of Business Loan Center, LLC,
otherwise known as BLX. That report was not made publicly available
until October of the same year, in a heavily redacted form. BLX was one
of SBA's largest 7(a) lenders when the $76 million in fraudulent loans
it made was exposed in January 2007. An OIG investigation regarding
allegations of the fraudulent loans helped lead to the arrest of a BLX
executive vice president and 18 other individuals, who were not BLX
employees. OIG followed up the investigation by releasing the report on
SBA's oversight of BLX. Despite the obvious need for more, not less,
transparency of SBA's oversight activities, when the report was made
publicly available in October of that year, it was heavily redacted and
virtually useless to the public in trying to determine what the SBA is
doing to address the multimillion dollar loan fraud that took place
under its watch.
To further underscore the damage that took place, it is important to
note that, in the time that has elapsed since the report was issued,
BLX--now called Ciena Capital has declared bankruptcy. According to the
company, it will continue to manage its assets as a ``debtor in
possession'' under the jurisdiction of the bankruptcy court. However,
we are still concerned that the former BLX will not fulfill its
obligations to the SBA and the American taxpayer, in turn.
Even so, as detailed in hearings on SBA lender oversight, our
committee remains very concerned by the number and breadth of the
redactions of the BLX report. At the lender oversight hearing on
November 13, 2007, then SBA Administrator Steven Preston promised to
work with the committee to make more of the report publicly available.
To date, there has been no agreement on a meaningful release of
redacted material.
In the context of conducting oversight, it has become apparent to the
committee that the OIG did not exercise independent authority on what
was redacted and instead let the agency it was investigating dictate
that large sections of the report be redacted. This is contrary to the
usual process that occurs with SBA OIG reports. Of the 15 reports that
the OIG has released this year, there have been none with a volume of
redactions even close to those in the BLX report. Of the 30 reports OIG
issued in 2007, only 3 reports have a comparable amount of text
redacted and those are all reports regarding agency information
security.
In this statement, I will bring to light the OIG's first three
recommendations to the SBA and a summary of the SBA's comments on the
recommendations, which were redacted in the publicly released report.
There is nothing in this material that should have been withheld. In
fact, on August 3, 2008, the New York Times reported in an article that
revealed the substance of the three redacted recommendations that
``With the American taxpayer assuming responsibility for all manner of
bad loans made by reckless lenders, it's puzzling that a scathing 2007
audit of the Small Business Administration's
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oversight of one of its top private lenders remains hidden from view.''
Additionally, even if there had been a reason to withhold this
information, the public interest would outweigh that. Given the crisis
in the credit market, it is more important than ever that the public
have confidence that SBA can handle its lender oversight
responsibilities.
The redacted portion is a recommendation on how to go forward in
improving SBA's lender oversight and is illustrative of a process that
broke down in this instance and needlessly made information
confidential without due consideration.
According to both the SBA's Office of General Counsel and the OIG,
the SBA followed a preemptive Freedom of Information Act process when
preparing for the public release of the BLX report. At its heart, the
FOIA is a disclosure statute, with certain outlined exemptions. Indeed,
although FOIA responsiveness has been problematic at best under the
Bush administration, it has at least recognized FOIA's importance on
paper as a tool to increase accountability of Government. As is stated
in former Attorney General John Ashcroft's FOIA memo of October 12,
2001, which set the policy standard for FOIA compliance for the
Administration: ``It is only through a well-informed citizenry that the
leaders of our nation remain accountable to the governed and the
American people can be assured that neither fraud nor government waste
is concealed.''
Unfortunately, discussions with the OIG and OGC make clear that
neither office fully evaluated each redaction with the above-mentioned
guidance in mind. The OIG faced a large number of requested redactions
from the OGC and, rather than challenge the OGC on them, simply decided
to release the report with SBA's huge number of requested redactions
intact. The OGC expressed surprise the OIG did not push back more on
their requested redactions and seemed to have clearly acted on the
instinct to ask for more redactions they expected to have made. The end
result was a report that did nothing to increase transparency of
Government and was virtually useless to the public.
As I mentioned earlier, the treatment of this report is in stark
contrast to that of other OIG reports, which tend to have few
redactions. Indeed, the followup report on lender oversight that was
released by OIG in May 2008 had comparatively few redactions. However,
in the BLX report, the redactions were so severe that the OIG felt
compelled to write a summary as a cover page because the extensive
redactions made the report difficult to understand. Without question,
the nature of this report also contributed to the number of redactions,
since it concentrated on SBA's oversight of one company. Even so, a
more thorough process would have undoubtedly resulted in far fewer
redactions being made to the public version of this report. That said,
Senator Snowe and I would like to see the OIG write reports in a manner
that allows for the maximum availability of information for the public
whenever possible.
The redacted passages that the committee is making public, in
accordance with both Senate and committee rules, are those that the
committee believes will be the most useful to the public and that were
redacted under privileges that, given the passages themselves, are
outweighed by the public good that can be gained by their disclosure.
The SBA asserted that the first three recommendations and the summary
paragraph in its response should be redacted due to the ``deliberative
process privilege,'' and for the first recommendation they also
included the bank examination FOIA exemption and privilege. The
deliberative process privilege is exemption (b)(5) of the FOIA and
covers ``inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency in
litigation with the agency.'' It traditionally covers the advice,
recommendations and subjective evaluation that agency staff make in the
performance of their duties. In this case, the public can see from the
release of this information how the SBA and its OIG were interacting in
the investigation of SBA's failed oversight of BLX, a lender making
Government-backed loans. Regarding the ``bank examination'' FOIA
exemption (b)(8) and privilege claim, that exemption only pertained to
a portion of recommendation No. 1, for which SBA indicated it believed
it could approve the release of an unredacted version.
SBA claims that the deliberative process privilege exemption applies
because the OIG is a part of the agency. However, we believe that
applying the exemption to the OIG--which is an independent office
created within the SBA by law to conduct and supervise audits,
inspections, and investigations relating to SBA programs and supporting
operations; and to detect and prevent waste, fraud, and abuse--in the
blanket manner SBA has done has the potential to render the OIG
useless. If the deliberative process privilege exemption is as broad as
SBA asserts, then the recommendations in the reports that preceded this
one, as well as the two recommendations in the BLX report it did not
redact, should have also been redacted. If that were the case, there
would be virtually no use in having an OIG.
We are very concerned that the SBA's actions in redacting key
information and recommendations in the BLX could undermine the future
authority and efficacy of the OIG. The OIG is an independent office
created within the SBA by law to conduct and supervise audits,
inspections, and investigations relating to SBA programs and supporting
operations; to detect and prevent waste, fraud, and abuse; and to
promote economy, efficiency, and effectiveness in the administration
and management of SBA programs. According to the SBA Web site, the SBA
inspector general ``keeps the SBA Administrator and the Congress fully
informed of any problems, recommends corrective actions, and monitors
progress in the implementation of such actions.''
To resolve this situation, the committee has engaged in staff
discussions with OIG and OGC with the intention of coming to an
agreement with the OGC on additional portions of the report that could
be released. However, OGC has simply not been responsive. Even when
made aware of the committee's concern about the adequacy of its
response, in subsequent followup by the committee, OGC did not address
critical issues and did not agree to make any new releases of
information. It also continued asserting Executive Privilege which, as
the committee has previously pointed out, must be, and has not been,
asserted by the President personally.
Therefore, to put an end to this matter, the committee is putting on
the record some information that was withheld to serve as an example of
a process gone wrong that prevented accountability in Government by
keeping from the public information about the oversight capabilities of
an agency that, though comparatively small, can have a huge impact on
our economy. BLX made over $76 million in fraudulent Government-backed
loans despite SBA's oversight of their lending activities. More
transparency, not less, is called for to explain to the American people
what happened and how it will be prevented in the future.
Without objection, I ask to have the redacted portion of the OIG's
recommendations printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
We recommend that the Associate Administrator for Capital
Access take further action to mitigate the risk posed by BLX
and to promote consistent and uniform enforcement actions by:
1. Setting specific performance goals and target dates for
BLX to demonstrate improvement. At a minimum, the goals
should require BLX to obtain a risk rating of at least ``3.''
2. Reducing the guaranty percentages for all new loans
originated by BLX, until such time as BLX has demonstrated
the required level of performance.
3. Suspending BLX's delegated lending authorities until the
goals in recommendation one are met.
The SBA's comments on those recommendations were completely redacted.
These sentences are from the first paragraph of the section that
summarizes the SBA's response.
SBA management partially agreed with recommendation 1,
neither agreed nor disagreed with recommendation 2, provided
a conflicting and unclear response to recommendation 4, and
disagreed with recommendations 3 and 5. Management noted that
it recently created a new Office of Credit Risk Management
(OCRM) out of the
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former OLO, which is now responsible for lender oversight. ).
While the former BLX's bankruptcy makes the contents of the report
moot to that particular company, we want to set the record straight on
how this matter was handled so that, hopefully, SBA will handle such
reports with more openness in the future.
Thank you, Mr. President.
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