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.