Authority of Comptroller General to Obtain Information Relating to United States Metric Board Appointments and Recent Coal Strike

• Court: Department of Justice Office of Legal Counsel
• Decided: August 31, 1978
• Status: Published

Opinion

August 31, 1978

78-96 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT

General Accounting Office— Authority to Obtain Information in Possession of Executive Branch— Constitutional Law— President— Confidential Communications— Appointments

1 am responding to your deputy’s memorandum o f July 27, 1978, asking for our advice with respect to two requests for information, each dated July 27, 1978, received from an official in the General Accounting Office (GAO). One, addressed to your deputy, relates to appointments to the United States Metric Board; the other, addressed to the Chairman of the Council of Economic Advisers (CEA), relates to data and memoranda connected with last w inter’s coal strike. We note that the requests were not signed by the Comptroller General but by a subordinate GAO official. We conclude that the Com ptroller General lacks authority to obtain the information sought.

I.

The request addressed to the Chairman of the CEA states that it is made in connection with an evaluation o f the Adm inistration’s estimate of unemploy­ ment due to last w inter’s coal strike, which evaluation is being conducted by the GAO at the request of the Subcommittee on Energy and Power of the House Committee on Interstate and Foreign Commerce. The GAO asks specifically for the following data: A description of the computer model developed by CEA to measure the unemployment impact of the coal strike including (1) assumptions used, (2) variables used, and (3) any limitations of the model. Memoranda from CEA to the White House and/or DOE concerning the computer model output on unemployment estimates and any comments, suggestions, or recommendations by CEA as to which estimate to use for policy decisions.

415 The request thus has three elements: A com puter model, memoranda to the White House, and memoranda from CEA to the Department of Energy. We have been informed by the CEA that the computer model was developed for the following purposes: Advice to the President and preparation of an affidavit by the Chairman of the CEA to be used in connection with the Taft-Hartley proceedings during last w inter’s coal strike. We also have been advised that the memoranda from CEA to the W hite House and from CEA to the Secretary of Energy also dealt with the preparation of the computer model and with advice to the President. Our analysis proceeds from what we believe are now well-accepted basic premises. First, the Com ptroller General is an officer of the Legislative branch. He has long been so viewed by Congress and by the Executive branch. See, e .g ., Corwin, Tenure o f O ffice and the R em oval P ow er, 27 Colum. L. Rev. 354, 396 (1927); W illoughby, The L egal Status and Functions o f the G eneral Accounting Office, 12-16 (1927). See also Reorganization Act of 1949, Ch. 226., 63 Stat. 205; Reorganization Act o f 1945, Ch. 582., 59 Stat. 616. His functions derive from and must be based upon the performance of appropriate congressional functions. Second, confidential Executive branch communica­ tions are presumptively privileged. See, U nited States v. N ixon, 418 U.S. 683 (1974); Nixon v. G .S .A ., 433 U.S. 425 (1977). We think it clear that this privilege, in order to be meaningful, must extend beyond the President personally to those who serve under and advise him. Thus, confidential communications between close Presidential advisers also fall within the “ presumptive privilege” identified by the Supreme Court. See, Nixon, supra, at 682 ( “ A P resident'and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions . . . . ” ); Nixon v. A dm inistrator, 433 U.S. 446, n. 10 (acknowledging the “ legitimate governmental interest in the confidentiality o f communications between high government officials, e .g ., those who advise the President” ); Nixon v. Sampson, 389 F. Supp. 107, 150 n. 112 (D .D .C . 1975). This conclusion is based on the same practical considerations that led the Supreme Court in G ravel v. U nited States, 408 U.S. 606, 617 (1972), to conclude that a Senator’s legislative side is entitled to the protections afforded by the Speech and Debate Clause. Third, it must also be acknowledged that, unlike thfe privilege governing sensitive military, diplom atic, and foreign affairs matters, the presumptive privilege for confidential com munications is not absolute. Congress has constitutional functions which it must carry out, and where collisions occur between its exercise o f those functions and the Executive branch’s need to preserve confidentiality, a careful weighing o f the respective interests must be undertaken. Nixon v. G .S .A ., supra; U nited States v. A .T . & T. C o ., 567 F. (2d) 121 (D .C . Cir. 1977), Senate S elect C om m ittee on P residential Cam paign A ctivities v. N ixon, 498 F. (2d) 725 (D.C. Cir. 1974). As stated in the most recent decision by the D .C. Circuit Court o f Appeals, where genuine and substantial competing interests are raised there is “ an implicit constitu­ tional mandate to seek optimal accommodation through a realistic evaluation

416 of the needs of the conflicting branches in the particular fact situation.” U nited States v. A .T. & T. C o ., 567 F. (2d) at 127. With these basic considerations in mind the Com ptroller G eneral’s subordi­ nate’s request can be analyzed. First, it would appear that the three sorts of documents requested fall within the presumptive constitutional privilege and, therefore, a decision not to disclose the requested documents might be properly based on the determination that disclosure here would interfere with necessary relationships of confidentiality. For the reasons stated above, we think that such ' a decision can extend not only to the direct communications between the Chairman o f CEA and the President but also to the communications between the Chairman and the Secretary of Energy and to the computer workup done in order to assist the Chairman in providing advice to the President. Before finally arriving at that conclusion, however, we think attention should be given to the Com ptroller G eneral’s subordinate’s reasons for seeking the material and the authority upon which that request is based. In response to an inquiry from your deputy, the General Counsel of the General Accounting Office stated in a letter dated August 11, 1978, that G A O ’s “ right to access to the records” in question stems from 31 U .S.C . § 54 (1976). This statute, which is G A O ’s basic provision with respect to its authority to seek documents, derives from § 313 of the Budget and Accounting Act of 1921, Ch. 18, 42 Stat. 26, and reads as follows: § 313. All departments and establishments shall furnish to the Comptroller General such information regarding the powers, duties, activities, organization, financial transactions, and methods o f busi­ ness o f their respective offices as he may from time to time require of them; and the Comptroller General, or any o f 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 o f section 291 of the Revised Statutes [31 U .S.C . § 107 (1976)]. As a matter of normal statutory construction we doubt whether this provision provides a foundation for the request made in this instance. By its terms, § 313 directs “ all departments and establishm ents” 1 to comply with requests from the Comptroller General for information concerning the “ powers, duties, activi­ ties, organization, financial transactions and methods of business of the respective offices.” Because the information in question here plainly does not relate to the powers, duties, organization, financial transactions and methods of business o f the CEA , this provision can only apply if the term “ activities” is given its very broadest meaning.

'In view o f the broad definition o f the term “ departm ents and establishm ents” in § 2 o f the Budget and Accounting Act (31 U .S .C . § 2 (1976)), we assum e arguendo that the term includes the Executive Office o f the President, in which the CEA is located, and the W hite House Office.

417 The very breadth o f that term suggests the application of the ajusdem generis rule o f statutory construction to ascertain its import. Since the other terms o f the section refer to organizational and fiscal m atters, we can properly regard the work “ activities” as relating to activities o f that nature. That view is supported by the fact that § 313 was enacted at a time when the Comptroller General’s functions were limited to those areas. The information sought here does not relate to fiscal or organizational matters; we therefore question whether the ' request can be based directly on § 313. Although the most recent letter from the General Counsel of GAO does not explicitly so state, the Com ptroller General him self has heretofore taken the position that § 313 does not constitute an independent source of investigatory power. Instead, that section has been cited as an aid in carrying out powers and responsibilities elsewhere conferred on the Comptroller General. In other words, if some statute directs the Com ptroller General to investigate, review or evaluate, § 313 has the function of enabling him to obtain information from the Executive branch. In the words o f Com ptroller General Staats, § 313 is of a “ supportive” nature.2 While we have not been directed by the General Counsel to any other applicable provision, § 204(a) of the Legislative Reorganization Act of 1970, as amended, is the only statute o f which we are aware that could serve as a basis for this request. That section directs the Comptroller General “ to review and evaluate the results o f government programs and activities carried on under existing law s.” Pub. L. 93-344, 88 Stat. 326 (1974). W hen the section was originally enacted in 1970 it was limited to fiscal and budgetary matters. Pub. L. 91-510, 84 Stat. 1140 (1970), H. Rept. 91-1215, p. 80. While certain amendments in 1974 made only minor changes in the wording of § 204(a), the relevant conference report discloses a congressional purpose to expand its scope so as to enable Congress to utilize the facilities o f GAO in connection with its legislative oversight functions.3

2M em orandum subm itted by the C om ptroller G eneral in Defense Production Act Am endm ents, Hearings before the Subcom m ittee on Production and Stabilization o f the Com m ittee on Banking, Housing and Urban A ffairs, U .S . Senate, 92d C ong., 2d sess., on S. 669 and 1901, pp. 51, 53. See also in this connection M organ, T he General A ccounting O ffice, 51 North Carolina Law Review 1279, 1352-1353 (1973). 3The pertinent portion o f the Conference Report on the Congressional Budget Act o f 1974, S. Rept. 93-924, p. 72, reads: SECTION 702. REV IEW A N D EV A LU A TIO N BY CO M PTR O LL ER GENERAL. The Senate am endm ent expanded the review and evaluation functions and duties of the C om ptroller G eneral, including assistance to com m ittees and M em bers. The conference substitute is a revision o f the Senate provision. It am ends section 204 o f the 1970 L egislative Reorganization Act to expand G A O assistance to C ongress. As am ended, section 204(a) provides that the C om ptroller Genera] shall evaluate Governm ent program s at his own initiative, when ordered by either House, or at the request o f a congressional com m ittee. Section 204(b) provides that upon request, the C om ptroller G eneral shall assist com m ittees in developing statem ents o f legislative objectives and m ethods for assessing program perform ance. The m anagers consider oversight o f executive perform ance to be am ong the principal functions o f congres­ sional com m ittees and they recognize that the usefulness o f program evaluation can be (Continued)

418 The request for information concerning the computer model may come within the scope of § 204(a) if it can fairly be said to relate to some legislative oversight o f the manner in which programs and activities o f the CEA are carried on under existing law. The only substantive piece of legislation involved in the Chairman’s activities here was the preparation of an affidavit under the Taft-Hartley Act. It should first be noted that this activity is not among the statutory functions imposed on CEA under § 4(c) of the Employment Act of 1946. Ch. 33, 60 Stat. 23, 15 U .S.C . § 1023(c) (1976). To the contrary, when the Chairman of CEA prepared and executed the affidavit, he was not administering a program subject to legislative oversight but was acting in his capacity as an adviser and assistant to the President. Assuming arguendo that the preparation and execution of a Taft-Hartley affidavit by the Chairman of the CEA might come within the scope of § 204(a) in connection with the exercise of legislative oversight of the manner in which the Taft-Hartley Act is administered, the fact is that it appears from the request that the House Subcommittee on Energy and Power is not engaged in legislative oversight with respect to Taft-Hartley and does not appear to have jurisdiction over that program or activity. Hence, § 204(a) would not appear to constitute an authority for the review and evaluation by the Comptroller General of the manner in which the Taft-Hartley Act is administered. We presume, although it is not entirely clear, that it might be claimed that this investigation is addressed to the more general question whether there is in existence adequate legislation to avert energy shortage crises in the future.4 If this is GAO’s interest, it is not clear to us how the information requested should prove relevant to that inquiry. We believe that in order to make the kind of “ accommodation” suggested by the District o f Columbia Circuit Court of Appeals, you would want to know a good deal more about the reasons why this particular information is being requested. Ordinarily, the examination o f a single historical incident would not serve as a very useful aid in evaluating the need for legislation. M oreover, to the extent that the examination o f a particular episode is deemed important, we would think that the relevant factual details could be gathered without requiring the disclosure o f this kind o f confidential information. In summary, it appears to us that there is a substantial basis upon which a decision might be made not to share this information with the Comptroller General’s staff. From the information given us by GAO we cannot readily ascertain the authority underlying the request. Nor can we assess the relevance or importance of the information sought. We suspect, however, that a more detailed factual inquiry would likely demonstrate that the interest in preserving

(Continued) enhanced by the clear expression of legislative objectives and the em ploym ent of m odem analytic m ethods. The m anagers further believe that statem ents of intent can be most appropriately developed by the com m ittee o f jurisdiction. M em bers must be provided upon request with all related inform ation after its release by the com m ittee for which it was com piled. “There is a suggestion to this effect in the letter to Chairm an Schultze dated July 27. 1978.

419 the confidentiality o f Executive branch com m unications would exceed the interest GAO might identify in support o f its request.

II.

The second request, addressed to your deputy, asks for detailed information as to whether recent Presidential appointments to the U .S. Metric Board complied with the specific qualification requirements of 15 U .S.C . § 205d (1976). This request, also signed by a subordinate GAO official, was made at the request of an individual m ember o f Congress. It is our view that compliance with this request is not required. Since the information sought does not involve fiscal matters, the Comptroller General’s authority must be based on § 204(a). See supra. A request for information under that section, however, presupposes action by either House of Congress or by a committee having jurisdiction over the program or activity under review or evaluation; a request o f a single m em ber does not authorize the Comptroller General to proceed.5 Beyond that, the request for information may well be outside the jurisdiction of the Com ptroller General as an arm of Congress. Under the Constitution, Article II, § 2, the pow er o f appointment of the members o f the Board is vested in the President and the Senate, and not in Congress as a whole. Hence, it is the responsibility o f the President and Senate to determine whether there has been compliance with the qualification requirements of. 15 U .S.C . § 205(d) (1976). As James Madison said during the First Session o f the First Congress during the Great Debate concerning the removal power o f the President: The Legislature creates the O ffice, defines the powers, limits its duration and annexes a compensation. This done the Legislative power ceases.6 M oreover, the appointment o f officers o f the United States by the President by and with the advice o f the Senate does not constitute a Government program or activity carried out under existing law as required by § 204(a). Finally, it should be noted that there is considerable question whether Congress has the power under the Appointm ents Clause significantly to restrict the President’s discretion in fulfilling his duty to nominate officers o f the United States. See, B uckley v. Valeo, 424 U .S. 1 (1976). The process whereby the President is restricted in naming members to the Board would raise serious questions if the President were therefore deprived o f discretion in performing his nominating function. 40 Op. A. G. 551 (1947); 13 Op. A. G. 516, 525

’ Section 204(a), it is true, enables the C om ptroller General to proceed on his own initiative. H ow ever, it cannot be anticipated that the C om ptroller G eneral will take that step after having received the request o f a single C ongressm an, since such a step could have the effect o f jeopardizing his “ role as an independent nonpolitical agency o f the legislative b ran ch .” See also M ansfield, The C om ptroller G eneral, 258; M organ, The G eneral Accounting O ffice, supra, at 1299-1300. 6A N N A L S o f C o n g r e s s , First Congress, First Session, C ol. 582.

420 (1871); c f , M yers v. U nited States, 272 U .S. 52, 121 (1926). We would have an even greater concern if it were concluded that those who submit names of qualified applicants could not be assured that the names remain confidential. The President might well conclude that in order adequately to fulfill his nominating responsibility he must have candid and straightforward advice from those who submit the names. If the President were so to conclude we think his decision not to disclose would be justified both on the ground that confidentiality is essential to the Appointments Clause process and on a more generalized presumptive constitutional privilege.

John M . Harm on A ssistant A ttorney G eneral Office o f L egal C ounsel