Chapter XXI: Appendix: C

_Correspondence on the Right of Access to Information by the General Accounting Office_

_November 12, 1958_

Hon. DWIGHT D. EISENHOWER,
_President of the United States,
Washington, D.C._

DEAR MR. PRESIDENT: I just returned to Washington for a hearing
of the Government Information Subcommittee. The subcommittee, I
understand, will inquire into the matter of General Accounting
Office access to Air Force Inspector General’s reports. In that
context, my attention has been directed to your press conference
comments of November 5, and to some newspaper speculation about
those comments.

The text of your remarks to which I refer is as follows:

“Q. (Clark R. Mollenhoff, Des Moines Register). Mr. President, you
have mentioned the spending in the Defense Department here as one
of the important issues, and the General Accounting Office, which
is the watchdog on frauds and extravagance in the various agencies,
has been barred from reports over in the Air Force and the Defense
Department generally, and on this they claim that they have
authority from you to withhold reports any time it is ‘inexpedient
to do so.’

“I wonder if you have given that authority and if you feel that
the GAO should have a full rein to go in and investigate all
indications of fraud and extravagance.

“The PRESIDENT. You are obviously talking about some special thing
that I would have to study before I could make—give an answer.

“I have stated this time and again: I believe that every
investigating committee of the Congress, every auditing office,
like the GAO, should always have an opportunity to see official
records if the security of our country is not involved.

“Q. (Clark R. Mollenhoff, Des Moines Register). Well, they claim
this, Mr. President, under executive privilege.

“The PRESIDENT. No, that’s all I have to say—I told you that is all
I had to say for the moment.”

While this question-and-answer exchange did not identify Inspector
General reports, and while you did preface your comment by saying
this obviously referred to some special thing you would have to
study before giving an answer, I would nevertheless like to ask
this: Did you mean to imply by your comments that the complete text
of Inspector General reports, including recommendations, be made
available to Congress and the General Accounting Office?

Respectfully,
CLARE E. HOFFMAN

THE WHITE HOUSE,
_Washington, November 12, 1958._

Hon. CLARE E. HOFFMAN,
_House of Representatives, Washington, D.C._

DEAR MR. HOFFMAN: Thank you for your letter inquiring about
comments in my November 5 press conference.

I believe, of course, that the public, the Congress, and such
auditing units as the General Accounting Office should have
all the information departments and agencies can properly make
available. However, the public interest also demands order and
efficiency in the operation of these departments and agencies.
And in my judgment the public interest is not necessarily served
by divulging the advice, suggestions, or recommendations which
subordinate employees periodically make to their superiors. In this
connection, recommendations of inspectors general have been a most
useful advisory tool in administering the military departments;
and historically, recommendations and other advisory matter in
such reports have not been released. I think this practice is a
correct one, and is in the best interest of the Nation. At the
same time, I want to add that the facts are distinct from advice
and recommendations in these reports. It is my understanding that
all the facts developed in the inspector general’s report to which
you refer are being made available at the request of the General
Accounting Office.

Sincerely,
DWIGHT D. EISENHOWER

UNITED STATES GENERAL ACCOUNTING OFFICE,
OFFICE OF GENERAL COUNSEL,
_Washington, D.C., November 4, 1958_.

MEMORANDUM ON RIGHT OF THE COMPTROLLER GENERAL TO ACCESS TO A
REPORT OF THE INSPECTOR GENERAL OF THE AIR FORCE ENTITLED “SURVEY
OF MANAGEMENT OF THE BALLISTIC MISSILES PROGRAM”

The basic statutory authority of the Comptroller General for access
to records of departments and agencies is set forth in section 313
of the Budget and Accounting Act, 1921 (31 U.S.C. 54). Section 313
provides:

“_All departments and establishments shall furnish to the
Comptroller General such information_ regarding the powers, duties,
activities, organization, financial transactions, and methods of
business of their respective offices _as he may_ from time to time
_require of them_; and the Comptroller General, or any of his
assistants or employees, when duly authorized by him, shall, for
the purpose of securing such information, have access to and the
right to examine _any_ books, documents, papers, or records of
_any_ such department or establishment. The authority contained in
this section shall not be applicable to expenditures made under the
provisions of section 291 of the Revised Statutes.”

It will be noted that the only exception in section 313 relates to
expenditures made under section 291, Revised Statutes (31 U.S.C.
107), which authorizes the Secretary of State to account for
certain confidential expenditures in connection with intercourse
or treaties with foreign nations by certificate where, in his
judgment, he may think it advisable not to specify the details
of such expenditure. Since that is the only exception stated and
following the legal maxim that the specific setting forth of one
type of exception precludes others from arising, it seems clear
that the Comptroller General may require, and the departments are
required to furnish, documents, etc., as to any other transaction
or activity. Also, the language of section 313 itself [except as
to the expenditures under 291 R. S.] in requiring the departments
to furnish such information as the Comptroller General “may
require of them” and its requirement that he be _given access to
any_ documents of the departments, clearly gives him access to
_all_ such documentation. If he has access to _any_ document, he
has access to _all_. The legislative background of the Budget and
Accounting Act, 1921, makes no qualification as to what records
can be required; the provision itself apparently being considered
sufficiently specific. The legislative reports do bring out that
one of the principal functions of the Comptroller General is to
enable the Congress to be kept advised as to expenditures of
the Government, and that the Comptroller General is expected to
criticize extravagance, duplication, and inefficiency in executive
departments. There is no doubt, in passing the act, the Congress
did not intend that the executive agencies could, or would,
withhold any books, documents, papers, or records needed by the
Comptroller General. Otherwise, the very purpose of the act would
be nullified.

The authority and duty of the Comptroller General was amplified
by section 206 of the Legislative Reorganization Act of 1946 (31
U.S.C. 60), which authorized and directed him to make expenditure
analyses of each agency in the executive branch of the Government
which “will enable Congress to determine whether public funds have
been economically and efficiently administered and expended” and
to make reports thereon from time to time to the Committees on
Government Operations, and Appropriations and other committees
having jurisdiction over legislation relating to the operation
of the agencies involved. The work of the Comptroller General,
together with the activities of the Committees on Government
Operations, were to serve as a check on the economy and efficiency
of administrative management. See pages 6 and 7, Senate Report No.
1400 on the Legislative Reorganization Act of 1946.

The Congress has also directed that the Comptroller General in
performing his duties give full consideration to the administrative
reports and controls of the departments and agencies. The
Government Corporation Control Act specifically provides in
section 301 (a) (31 U.S.C. 866), “That in making the audits ...
the Comptroller General shall, to the fullest extent deemed by him
to be practicable, utilize reports of examination of Government
corporations made by a supervising administrative agency pursuant
to law.” The legislative reports on that act, Senate Report 694,
page 10, contains the following significant language:

“The audit provisions are intended to give the Congress the
independent audit reports of its agent, the Comptroller General,
as to the operations and financial condition of every Government
corporation in which the Government has a capital interest.... If
the audit by the Comptroller General is to be a truly independent
audit, he must not be restricted in such a way as to prevent
him from examining into and reporting the transactions of any
Government corporation to the extent deemed by him to be necessary.

“The Comptroller General has stated that in making his audits he
will give full consideration to the effectiveness of the existing
systems of internal accounts, procedures, and controls and of
external examinations by an administrative supervisory agency.
The bill includes a specific provision requiring the Comptroller
General in making his audits to utilize, to the fullest extent
deemed by him to be practicable, reports of examinations of
Government corporations by a supervising administrative agency
pursuant to law.”

The Budget and Accounting Procedures Act of 1950 requires each
executive agency to maintain systems of accounting and internal
control and provides, in section 117 (a) (31 U.S.C. 67 [a]), that
the Comptroller General in determining auditing procedures and
the extent of examination to be given accounts and vouchers give
consideration to “the effectiveness of accounting organizations and
systems, internal audit and control, and related administrative
practices of the respective agencies.”

The Comptroller General is required to audit the activities of the
executive departments and agencies; to make expenditure analyses
to determine whether funds have economically been expended; and to
give consideration to the departments’ internal audit and control
and related administrative practices. To perform these duties he is
given the clear statutory authority to require information of the
departments and agencies regarding their organization, activities,
and methods of business, coupled with the right to access to _any_
books, documents, papers, or records of any such establishment
(except as to the confidential State Department funds).

There have been no court cases construing the statutes giving
the Comptroller General access to records. However, in 1925, the
Attorney General in an opinion to the Secretary of War (34 Op.
Atty. Gen. 446), concerning a request by the Comptroller General
for information relative to an award of a contract showing that
the lowest bid was accepted, or if otherwise, a statement for the
reasons for accepting other than the lowest bid, advised, in part,
as follows:

“It will be observed that the Comptroller General states that this
requirement is made necessary in order that a satisfactory audit
may be made. What papers or data he should have to make such an
audit would seem to be a matter solely for his determination.
Moreover, section 313 of the Budget and Accounting Act provides (p.
26):

“All departments and establishments shall furnish to the
Comptroller General such information regarding the powers, duties,
activities, organization, financial transactions, and methods
of business of their respective offices as he may from time to
time require of them; and the Comptroller General, or any of his
assistants or employees, when duly authorized by him, shall, for
the purpose of securing such information, have access to and the
right to examine any books, documents, papers, or records of any
such department or establishment....”

Questions as to whether the General Accounting Office has a right
to access to records claimed to be confidential for security
or other reasons have arisen from time to time and the General
Accounting Office has always taken the position that it has the
right to the information, even though certain provisions of law
relating to disclosure might be applicable to it.

The General Accounting Office recognizes that certain of the
functions of the inspectors general, such as criminal and personnel
investigations, are of a confidential nature and it will normally
accept summaries of facts contained in such reports to the
extent they are needed in connection with its work. However, the
inspectors general also have as a part of their respective missions
and duties responsibility for conducting inspections, surveys,
and examinations of the effectiveness of operations and overall
efficiency of a command, installation, or activity. These functions
may be performed on a periodic or special basis as directed by
competent authority. The performance of these functions constitutes
an important part of the process of management evaluations and
internal reviews as distinguished from criminal or personnel
investigations. They provide officials and appropriate personnel
of authority with an independent appraisal of the effectiveness of
operations and overall efficiency. Moreover, a very considerable
part of the inspections and reviews made by the inspectors general
involve reviews of procedures and policies and as such are an
important segment of the internal reviews and control which the
General Accounting Office, under section 117 (a) of the Budget
and Accounting Procedures Act of 1950 is required to consider and
recognize in determining the audit procedures to be followed in its
reviews.

The scope of inspection and survey programs of the inspectors
general is similar in character to much of the work the General
Accounting Office has scheduled in requirements, procurement,
supply management, and research and development areas. The
programs of the Deputy Inspector General for Inspection of the
Air Force covering the period July 1, to December 31, 1958,
include (1) a survey of Air Force procurement methods (advertising
versus negotiation); (2) a survey of procurement quantitative
and qualitative program changes; (3) a survey of procurement of
commercial communications and utility services; (4) a survey of
contract cost overruns; (5) a survey of maintenance programs;
(6) a survey of modification programs; (7) a survey of the
application of electronic data processing systems and other like
subjects. All of these subjects represent internal and management
evaluations which would clearly be a part of “internal audit and
control” within the meaning of section 117 (a) of the Accounting
and Auditing Act of 1950. It is essential that such reports be made
available to the General Accounting Office in order that it can
evaluate the effectiveness of the department’s system of internal
control and to preclude unwarranted and unnecessary duplication
of effort in the internal audit and the independent review made
by this Office. The Air Force Inspector General’s report on the
ballistic missiles program clearly falls within the term “internal
audit and control.”

The Secretary of the Air Force in refusing the Comptroller General
access to the Inspector General’s report on the ballistic missiles
program stated that the Inspector General’s reports are prepared
solely for the use of responsible officials within the Air Force,
and that the objective of self-criticism can be obtained only if
the Inspector General’s organization has the assurance that its
reports will, without exception, be kept within the Department.
The Secretary also stated that the report in question concerned
the internal management of the Department, and was prepared solely
for the benefit and use of those officers and employees of the
Department who are responsible for its administration, and that
the release of such reports to persons outside the Department
would have a serious effect on the effective administration of
the Department. The Secretary concluded that these considerations
compelled him to conclude that the public interest would best be
served by not releasing the report.

It is our understanding that the position of the Secretary is
premised on paragraph 151 (b) (3) of the Manual for Courts Martial
(1951) which was prescribed by the President on February 8, 1951,
through Executive Order 10214, pursuant to the act of May 5,
1950 (64 Stat. 107), and on the general basis that the heads of
executive departments have the right to withhold information or
papers which they deem confidential, in the public interest.

The Manual for Courts Martial, 1951, Executive Order 10214, dated
February 8, 1951, was issued pursuant to article 36 of the act of
May 5, 1950 (64 Stat. 120). Article 36 (a) provides:

“The procedure, including modes of proof, in cases before
courts-martial, courts of inquiry, military commissions, and
other military tribunals may be prescribed by the President by
regulations which shall, so far as he deems practicable, apply the
principles of law and the rules of evidence generally recognized in
the trial of criminal cases in the United States district courts,
but which shall not be contrary or inconsistent with this code.”

Article 151 (b) (3) of the Manual for Courts Martial provides:

“The Inspectors General of the various armed forces, and their
assistants, are confidential agents of the Secretaries of the
military or executive departments concerned, or of the military
commander on whose staff they may be serving. Their investigations
are privileged unless a different procedure is prescribed by
the authority ordering the investigation. Reports of such
investigations and their accompanying testimony and exhibits are
likewise privileged, and there is no authority of law or practice
requiring that copies thereof be furnished to any person other than
the authority ordering the investigation or superior authority.
However, when application is made to the authority by court-martial
certain testimony, or an exhibit, accompanying a report of
investigation, which testimony or exhibit has become material
in a trial (to show an inconsistent statement of a witness, for
example), he should ordinarily approve such application unless the
testimony or exhibit requested contains a state secret or unless
in the exercise of a sound discretion he is of the opinion that
it would be contrary to public policy to divulge the information
desired.

“In certain cases, it may become necessary to introduce evidence
of a highly confidential or secret nature, as when an accused is
on trial for having unlawfully communicated information of such a
nature to persons not entitled thereto. In a case of this type, the
court should take adequate precautions to insure that no greater
dissemination of such evidence occurs than the necessities of the
trial require. The courtroom should be cleared of spectators while
such evidence is being received or commented upon, and all persons
whose duties require them to remain should be warned that they are
not to communicate such confidential or secret information....”

Since the Manual for Courts Martial was issued pursuant to the
authority of the President to prescribe procedure for such trials,
and Article 151 (b) MCM by its language is addressed to procedures
of such courts, it obviously does not affect access by the General
Accounting Office to Inspector Generals reports determined by the
Comptroller General to be necessary to the performance of his work,
particularly where the report requested is not one dealing with
personnel or criminal investigations.

Air Force Regulation 120-3, paragraph 9, October 11, 1954, and
similar regulations provide:

“Disclosure of or access to matters pertinent to an inquiry or
investigation will be limited to persons whose official duties
require such knowledge. The Manual for Courts Martial, 1951, states
that inspector-general investigations are privileged information.
The same privileged status applies to inquiries and investigations
conducted under this Regulation. Also paragraph 3, AFR 190-16,
29 July 1954, excludes investigative reports and reports of
inspectors general and base inspectors from release to the public
as information. Reports by investigators will not be released or
disclosed outside the Air Force without approval of the Secretary
of the Air Force.”

Presumably these regulations were issued pursuant to section 161,
Revised Statutes, title 5, United States Code, section 22, or
similar authority, authorizing the head of a department to issue
regulations, _not inconsistent with law_, for the conduct of his
department and the custody and use of its records. Since under
section 313 of the Budget and Accounting Act the Secretary is
required to give the Comptroller General access to the records, any
construction of the Air Force regulation denying the Comptroller
General access is improper, and the regulation to that extent,
being inconsistent with law, has no effect.

With reference to the right or privilege of the head of the
“Executive” branch of the Government to refuse to the legislative
and judicial branch of the Government free access to records in the
custody of the executive departments, support for such claim of
right or privilege is found in 25 Op. Atty. Gen. 326, 40 Op. Atty.
Gen. 45, and cases referred to therein.

Assuming, arguendo, that such right or privilege does exist, we
do not believe it warrants an executive agency denying to the
Comptroller General information or access to its documents in view
of section 313 of the Budget and Accounting Act which clearly
provides that “all departments ... shall furnish ... information
...” required by the Comptroller General and that he shall have
“access to and the right to examine any ... documents of any such
department....” The opinion of the Attorney General in 1925, 34
Op. Atty. Gen. 446, discussed earlier, clearly recognizes the
prerogative of the Comptroller General to determine what papers he
should have to enable him properly to perform his audits and that
the departments are required to furnish them.

The right or privilege asserted from time to time by the executive
branch was considered in a study by the staff of the House
Committee on Government Operations entitled “The right of Congress
to obtain information from the Executive and from other agencies
of the Federal Government,” committee print dated May 3, 1956, and
in great detail by the House Committee on Government Operations
in connection with Public Law 85-619 approved August 12, 1958, as
were the court cases cited and relied upon by the Attorney General.
See House Report No. 1461, 85th Congress, 2d session. Also, there
was there considered a line of later decisions starting with
_McGrain_ v. _Daugherty_, 273 U. S. 135 (1927) which upheld the
power of Congress to require information sought for legislative
purposes. None of the cases relied upon by the Attorney General
involved demands by the Congress for information from the executive
agencies. This was considered in a study on the matter furnished
the committee by the Attorney General. See page 2938 of the
printed hearings before a subcommittee of the House Committee on
Government Operations on June 20 and 22, 1956, on “Availability of
Information from Federal Departments and Agencies” wherein after
citing and quoting from numerous court decisions he stated “None of
the foregoing cases involved the refusal by a head of department to
obey a call for papers or information. There has been no Supreme
Court decision dealing squarely with that question.”

As indicated, the precise question of whether the Congress has a
right to obtain information from the Executive which it refuses
to furnish because of its confidential nature has not been the
subject of a court decision. Where information sought by Congress
by an executive department has been refused, the Congress has,
at times, succeeded in bringing sufficient pressure to bear to
obtain the information, or the executive department has, upon
reconsideration, relented and furnished it. At other times the
Congress has not pressed the matter—possibly because of its feeling
that the President was in such a position that he should know
whether the information should be withheld, or that the Congress
had no machinery to force his compliance—and the information was
not furnished. But, regardless of whether such right or privilege
exists, it is clear that the Congress in passing on future
appropriations and other legislation has a right to know whether
the funds appropriated are being properly and efficiently used for
the purposes it intended and that any information available in that
regard should be available to the Comptroller General.

In view of the above, and in the absence of any judicial
determination specifically dealing with the rights of the
Comptroller General under section 313, we do not believe that the
position of the Secretary of the Air Force that the report in
question can be legally withheld is proper.

ROBERT F. KELLER, _General Counsel_

_Letter from the Attorney General to the President_

_December 22, 1960_

The PRESIDENT,
_The White House_.

DEAR MR. PRESIDENT: You have requested my advice whether, under
the Constitution and laws of the United States, you have the
authority as Chief Executive to issue the two attached directives
to, respectively, the Secretary of State and the Secretary of the
Treasury, concerning the availability of mutual security program
funds for the expenses of the Office of the Inspector General and
Comptroller established under section 533A of the Mutual Security
Act of 1954, as amended.

In an opinion I have furnished you at your request, I have
advised you of my conclusions that: First, the view taken by
the Comptroller General in his letter of December 8, 1960, that
the proviso contained in section 533A(d) of the Mutual Security
Act of 1954, as amended, has operated to cut off the funds here
in question, is erroneous. Second, that if this view of the
Comptroller General as to the meaning of the proviso is correct,
the proviso is unconstitutional. Third, that therefore, despite the
Comptroller General’s letters of December 8, 1960, and December 13,
1960, these mutual security program funds continue to be available
as heretofore for the expenses of the Office of the Inspector
General and Comptroller. The reasons for these conclusions are set
forth at length in my opinion.

Your directives to the Secretaries of State and the Treasury are,
you advise me, in your judgment desirable to insure that mutual
security program funds will be available until the end of your term
of office on January 20, 1961, as heretofore for the expenses of
the Office of the Inspector General and Comptroller. Under these
circumstances, I am of the opinion that you, as Chief Executive,
have the authority to issue the directives.

Respectfully,
WILLIAM P. ROGERS,
_Attorney General_

_Opinion of the Attorney General of the United States Dated December 19, 1960_

MUTUAL SECURITY PROGRAM—CUTOFF OF FUNDS FROM OFFICE OF INSPECTOR GENERAL AND COMPTROLLER

Section 533A(d) of the Mutual Security Act of 1954 added by
section 401(h) of the Mutual Security Act of 1959 (73 Stat. 253),
which directs that the expenses of the Office of the Inspector
General and Comptroller with respect to programs under the Mutual
Security Act be charged to the appropriations made to carry out
such programs, _provided_ that all documents, reports, and other
materials relating to the operations and activities of that Office
are furnished upon request to the General Accounting Office, or
to any appropriate congressional committee or duly authorized
subcommittee, does not authorize the funds of the Office of the
Inspector General and Comptroller to be cut off because of the
failure of the State Department to furnish certain documents
relating to that Office to a congressional subcommittee, if the
President has issued a certificate pursuant to section 101(d) of
the Mutual Security and Related Agencies Appropriation Act, 1961
(74 Stat. 778), to the effect that he has forbidden the production
of those documents and states his reasons for so doing. A contrary
conclusion reached by the Comptroller General is incorrect, and,
therefore, funds continue to be available as heretofore for the
Office of the Inspector General and Comptroller.

The proviso in section 533A(d) does not expressly authorize the
funds of the Office of the Inspector General and Comptroller to
be cut off, and such a drastic consequence should not lightly be
inferred from ambiguous statutory language. Other provisions of the
Mutual Security Act of 1959, the Mutual Security Act of 1960 (74
Stat. 134), the Mutual Security and Related Agencies Appropriation
Act, 1960 (73 Stat. 717), and the Mutual Security and Related
Agencies Appropriation Act, 1961, indicate a congressional purpose
not to compel the disclosure of information concerning the mutual
security program which the President considers to be incompatible
with the security of the United States. Section 533A(d) should be
read in the light of this purpose.

Section 533A(d) has been suspended by section 101(d) of the
Mutual Security and Related Agencies Appropriation Act, 1961,
which provides that the failure to furnish documents, etc., to
Congress or to the Comptroller General will not result in a cutoff
of appropriated funds if the President certifies that he has
prohibited the production of the documents and states the reasons
for this action.

A construction of the proviso to section 533A(d), requiring funds
for the Office of the Inspector General and Comptroller to be
cut off for failure to supply documents, notwithstanding the
President’s certification, must be avoided because it not only
creates constitutional doubts, but would, if correct, render the
proviso unconstitutional. Congress cannot by direct action compel
the President to furnish to it information the disclosure of which
he considers contrary to the national interest. It cannot achieve
this result indirectly by placing a condition upon the expenditure
of appropriated funds.