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.