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As We Say, Not As We Do


In its “Evaluation of Corporate Compliance Programs” the Department of Justice lists various factors it will use to assess “whether, and to what extent, the corporation’s compliance program was effective at the time of the offense, and is effective at the time of a charging decision or resolution, for purposes of determining the appropriate (1) form of any resolution or prosecution; (2) monetary penalty, if any; and (3) compliance obligations contained in any corporate criminal resolution (e.g., monitorship or reporting obligations).”

Among the questions the DOJ will ask pursuant to the CEP are: does a company have a process for tracking various information relevant to compliance; does a company monitor various aspects relevant to compliance; and does a company measure various aspects relevant to compliance.

Several other DOJ policy documents could also be cited which stand for the same propositions and in recent months the DOJ “onboarded” an individual into its Corporate Enforcement, Compliance & Policy Unit (a dedicated group within the Fraud Section) who “brings incredible expertise in the use of data analytics.”

Ironic then that the Government Accountability Office (GAO – a legislative branch agency that provides auditing, evaluative, and investigative services for Congress) recently issued a report in which it found the DOJ deficient in all of the above areas in responding to Congressional inquiries.

In summary fashion, the report states:

“The Department of Justice (DOJ) lacks some key information that is preventing it from effectively tracking and monitoring responses to congressional correspondence. Specifically, DOJ does not systematically maintain quality data to track and monitor the status of responses, lacks guidance to ensure tracking system data quality, and has limited efforts to measure timeliness performance.

Quality data to track and monitor responses.

DOJ does not systematically maintain readily available, accurate, and complete data on the universe of responses to congressional requests in DOJ’s department-wide correspondence management system. For example, GAO analysis of available DOJ congressional correspondence data found that there are records with hundreds or over a thousand days between the date on the letter and the date DOJ documented receipt of the letter. However, certain components have taken steps to help ensure data quality. For example, the FBI has developed a data system tool that displays infographics of aggregate data with the status of pending letters to Congress that it uses to track and monitor response times and assess which stages of the process are potentially contributing to delays.

Guidance on data quality.

DOJ has not established guidance on data quality to ensure the department and its components maintain reliable data on congressional correspondence from receipt to disposition. For example, DOJ’s Correspondence Manual does not address how to maintain the data in its department-wide tracking system. However, the manual establishes policies and procedures for managing correspondence. GAO found that certain components also have inaccurate or incomplete congressional correspondence data. For example, GAO analysis of Federal Bureau of Prisons data found variation in the accuracy and completeness of date fields related to the receipt and disposition of congressional correspondence.

Timeliness performance measures.

DOJ’s Office of Legislative Affairs and three of the five components GAO reviewed have not yet developed performance measures to monitor the timeliness of their responses to Congress, but two have such measures. For example, the FBI has a performance goal of responding to certain oversight correspondence within 90 days. Federal internal control standards call for agencies, as part of program management, to develop and monitor performance measures to compare actual performance to expected results.

Ensuring its congressional correspondence tracking data are readily available, accurate, and complete, and developing guidance on data quality would help ensure that DOJ has the ability to systematically track and monitor efforts to develop timely responses and make any needed process improvements. Further, developing timeliness performance measures would better position DOJ to systematically identify the components or types of responses that are taking longer than expected and help DOJ and its components better manage the timeliness of responses to Congress.”

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