Letter_Walkeraug17let.txt

Comptroller General
of the United States United States General Accounting Office
Washington, DC 20548

B-287944
August 17, 2001
The Vice President of the United States
Dear Mr. Vice President:
Pursuant to 31 U.S.C. § 716(b), I am submitting this report
because the Vice President, as Chair of the National Energy Policy
Development Group (NEPDG), has not provided the General Accounting
Office (GAO) with access to certain records relating to the process
by which the National Energy Policy was developed. I requested
these records in writing on July 18, 2001, in accordance with
section 716. Despite repeated attempts, we have been unable to
resolve this dispute.
The Vice President and his representatives have asserted that
GAO lacks the statutory authority to examine the activities of the
NEPDG, recognizing only GAO«s authority to audit its financial
transactions. They have also asserted that our examination would
unconstitutionally interfere with the functioning of the executive
branch. In addition to the arguments previously advanced by the
Vice President«s representatives and addressed in our June 22
letter to the Counsel to the Vice President (see Enclosure 1), the
Vice President«s August 2 letter to the Congress asserts that the
study is not authorized by statute because GAO is limited to
looking at the ƒresults≈ of programs and that GAO does not have a
right of access to documents because the Vice President is not
included under the term ƒagency≈ used in GAO«s statute.
As discussed below, we strongly disagree with the Vice
President«s positions. Disclosing the records we are seeking would
not reveal communications between the President and his advisers
and would not unconstitutionally interfere with the functioning of
the executive branch. Furthermore, GAO has ample authority to
conduct this review, and this authority has been recognized by
various presidential administrations for many years. Finally,
neither the plain meaning of the statute nor the legislative
history supports the Vice President«s interpretation of the terms
ƒresults≈ and ƒagency.≈
The GAO as an institution, and the Comptroller General as an
officer of the legislative branch, assist the Congress in
exercising its responsibilities under the Constitution to oversee,
investigate, and legislate. In order to help members of Congress
carry out their role and evaluate the process used to develop the
National Energy Policy, GAO needs selected factual and
non-deliberative records that the Vice President, as Chair of the
NEPDG, or others representing the Group, are in a position to
provide GAO. The records we are requesting will assist the review
of how the NEPDG spent public funds, how it carried out its
activities, and whether applicable law was followed.1 Descriptions
of the records we are requesting, our efforts to obtain them, and
our statutory authorities are summarized below.


Description of Records Requested
In May 2001, the Comptroller General authorized this GAO study
based on a request from Representatives John D. Dingell and Henry
A. Waxman, Ranking Minority Members of the House Committee on
Energy and Commerce and the House Committee on Government Reform,
respectively. Our study is narrowly focused to answer the question,
ƒWhat process did the NEPDG use to develop the National Energy
Policy?≈ To answer that question, we have requested documents that
provide the following information:


•
Who was present at each of the group meetings conducted
by the NEPDG?


•
What are the names of the professional staff assigned to
provide support to NEPDG?


•
Who did each of the members of the NEPDG (including the
Vice President as Chair) and its support staff meet with to gather
information for the National Energy Policy, including the date,
subject, and location of the meetings?


•
What direct and indirect costs were incurred in
developing the National Energy Policy?


In communications with the Vice President«s Counsel prior to the
August 2 letter, we offered to eliminate our earlier request for
minutes and notes and for the information presented by members of
the public. Even though we are legally entitled to this
information, as a matter of comity, we are scaling back the records
we are requesting to exclude these two items of information.2
Furthermore, we have repeatedly emphasized that we are flexible in
how information is provided to GAO. Despite these and other efforts
on our part to resolve the impasse, the Vice President«s
representatives have shown no interest in reaching any
accommodation.
1
For example, the information on who was present at each of the
group meetings conducted by the NEPDG can be used to confirm that
only full-time officers or employees of the federal government
attended the meetings and thus rule out the possibility that the
Federal Advisory Committee Act (FACA) is applicable to meetings of
the group. FACA exempts from its provisions those committees
composed wholly of full-time federal officers or employees.
Similarly, information on whom individual NEPDG members and staff
met with and the dates and subjects of the meetings would be
relevant in confirming that meetings with members of the public did
not trigger FACA. 5 U.S.C. app. 2 (2000).
2
These items of information are described in paragraph 3(d) and
(e), and paragraph 4(d) and
(e) of our letter of July 18, 2001.


Efforts to Obtain Records
GAO began its efforts to conduct this review on May 7 by
following our standard practice of calling a designated contact to
set up an initial meeting with NEPDG staff. (See Enclosure 2 for a
chronology of our efforts to obtain the records.) Numerous phone
calls did not produce a meeting date. Instead, on May 16, the Vice
President«s Counsel sent GAO a letter questioning the
appropriateness of GAO«s review, expressing reluctance to supply
the information requested and asking for a statement of GAO«s legal
authority to conduct the review. We responded on June 1 that the
request was consistent with our authorities and asked for access to
records containing the information requested.
On June 7, the Vice President«s Counsel again questioned GAO«s
authority to conduct this review, and in our June 22 reply we
explained our statutory authorities in detail. We also repeated our
request for information relevant to our study. Subsequent to our
June 22 letter, GAO officials have engaged in numerous
conversations with the Vice President«s representatives. However,
in these conversations, the Vice President«s representatives have
focused entirely on their view that GAO lacks authority to conduct
this review, rather than on reaching an accommodation.
On July 18, 2001, the Comptroller General issued a letter to the
Vice President in his capacity as Chair of the NEPDG, under 31
U.S.C. § 716(b), requesting access to certain records relating to
our study, restating our authority for inspecting the records, and
the reason for our inspection.3 The Vice President did not respond
to GAO with a description of the records withheld and the reasons
for withholding them as required by the statute. Instead, he sent
letters to the House of Representatives and the Senate on August 2,
2001, to inform them of GAO«s actions and to serve as a response to
GAO«s July 18 letter. In these letters, he asserted that I
ƒexceeded≈ my ƒlawful authority≈ by undertaking this study. He also
refused to acknowledge GAO«s basic statutory authorities and
asserts that if the ƒComptroller General«s misconstruction of the
statutes≈ were to prevail, ƒhis conduct would unconstitutionally
interfere with the functioning of the Executive Branch.≈
When records are not made available to GAO within a reasonable
time, the provisions of 31 U.S.C. § 716(b) establish mechanisms for
resolution of GAO access-to-records problems. Section 716(b)(1)
provides that when GAO is not given access to records within a
reasonable time, the Comptroller General may make a written request
for such records to the agency head. The official then has 20 days
to respond and the response is required to describe the record
withheld and the reason the record is being withheld. If GAO is not
given an opportunity to inspect the record during this time period,
the Comptroller General may file a report to the President, the
Congress, and other executive branch officials. Twenty days after
filing the report, the Comptroller General may bring a civil action
in the district court of the United States for the District of
Columbia to require the official involved to produce the withheld
records.
As this letter makes clear, as Comptroller General of the United
States, I have broad discretion to conduct audits, investigations,
and examinations of executive branch activities either at the
request of Congress or on my own authority. Furthermore, we do not
agree that disclosure of the limited factual and non-deliberative
information we are seeking, such as the names of participants at
meetings, would ƒunconstitutionally interfere with the functioning
of the executive branch.≈ In support of this proposition, the Vice
President«s August 2 letter states that ƒpreservation of the
ability of the executive branch to function effectively requires
respecting the confidentiality of communications among a President,
a Vice President, the President«s other senior advisers and
others.≈ However, as we have made clear in several discussions with
the Vice President«s representatives, we are not asking for any
communications involving the President, the Vice President, or the
President«s senior advisers. We are simply asking for facts that
the Vice President, as Chair of the NEPDG, or others representing
the group, would be in a position to provide to GAO. These include
the names of attendees, dates and locations, and the subjects of
the meetings.
The Vice President has also expressed concern regarding certain
requests for his personal schedule. We understand and appreciate
the Vice President«s concerns regarding release of his personal
schedule. As a result, we have made clear to the Vice President«s
representatives that we are not seeking a copy of his calendar or
information on meetings held other than in his capacity as Chair of
the NEPDG. As we have emphasized, we are seeking certain factual
information on meetings the Vice President held in his capacity as
Chair of the Group.
Although the Vice President did not use the term ƒExecutive
Privilege≈ in his August 2 letter, his assertion that providing
these facts would unconstitutionally interfere with the executive
branch and his focus on confidentiality of communications use the
same language and reasoning as assertions of Executive Privilege.4
In our view, the information that GAO seeks is not protected by
Executive Privilege. As noted above, the information we are seeking
is factual and non-deliberative in nature. In fact, the Vice
President«s Counsel has already informed the House Committee on
Energy and Commerce and the House Committee on Government Reform,
that the meetings the support staff and other NEPDG members had
were to gather information relevant to the NEPDG«s work and were
not deliberative in
The right to invoke Executive Privilege rests with the
President, and Presidents have had different procedures for
asserting it. President Reagan, for example, required the agency
head, if a substantial question was raised, to notify and consult
with the Attorney General and the White House Counsel«s Office. The
President would decide whether to assert the privilege. President
Clinton modified President Reagan«s policy by requiring the agency
head to directly notify the White House Counsel. The White House
Counsel was to seek an accommodation, and if unsuccessful, to
consult with the Attorney General. Again, the President determined
whether to invoke the privilege.
5
nature. Even where the President has made a formal claim of
Executive Privilege, which is not the case here, federal courts
have held that the executive and legislative branches have a duty
to attempt to reach a mutual accommodation.6 As we have stated
earlier, the Vice President«s representatives have declined to
discuss reaching any accommodation.
The information we are seeking is of the type that has been
commonly provided to GAO for many years spanning several
administrations. Furthermore, in prior GAO reviews of working
groups established by the President, we have received information
on participation by outside parties. Most recently, GAO reviewed
activities of the White House China Trade Relations Working Group,
which was established at the request of President Clinton in the
exercise of his Constitutional powers. In this review, GAO was
provided thousands of documents including copies of e-mails and
other information identifying group members« contacts with outside
groups and individuals. Previously, at the request of the
Republican Ranking Minority Member of the House Committee on
Government Operations, GAO reviewed activities of President
Clinton«s Task Force on Health Care Reform and was provided with an
extensive listing of working group participants drawn from the
government and from outside organizations. Moreover, some members
of the NEPDG have already provided us with information identical in
kind to the type of information we are seeking from the Vice
President in his capacity as Chair of the NEPDG and from NEPDG
staff members. For example, the Secretaries of Energy and Interior
and the Administrator of the Environmental Protection Agency, have
provided us with information concerning who they met with to
develop the National Energy Policy, when the meetings occurred,
where they occurred, and what the general topics were.


GAO«s Basic Audit Authority
GAO«s basic authority stems from the Budget and Accounting Act
of 1921, which, as discussed below, provides GAO with broad and
comprehensive authority to investigate all matters relating to the
use of public money. Succeeding legislation affecting GAO«s
authority has generally served to emphasize the role of review and
analysis by GAO as a means of enhancing congressional oversight
over activities of the executive branch.7 The
5
Letter from David S. Addington, Counsel to the Vice President,
to the House Committee on Energy and Commerce and the House
Committee on Government Reform (May 4, 2001). The letter enclosed
the responses of the Executive Director of the NEPDG to a letter
dated April 19, 2001, from the Ranking Minority Members of the two
committees.
6
See, e.g., United States v. American Telephone and Telegraph
Co., 567 F. 2d 121 (D.C. Cir. 1977).
7
As the principal legislative history accompanying the General
Accounting Office Act of 1980 explains, ƒWith the growth in the
number of Federal programs and agencies, the Congress has by
necessity become more dependent on GAO assistance in fulfilling its
oversight and legislative responsibilities. GAO not only provides
Congress with essential information about Federal programs, but
also, uniquely, exercises statutory authority to
(continued…)
GAO, headed by the Comptroller General, is a principal means by
which the legislative branch conducts oversight of executive
programs and activities.8
Notwithstanding the broad authority vested in GAO and the
Comptroller General by the Congress, the Vice President«s August 2
letter again questioned GAO«s basic authority to do this review.
However, as we explained in our June 22, 2001, letter to the
Counsel to the Vice President, our inquiry is authorized by 31
U.S.C. §§ 712 and 717. Section 712(1) authorizes GAO to investigate
"all matters related to the receipt, disbursement, and use of
public money," and there is no doubt that public money was used to
fund the activities of the NEPDG. The Counsel has asserted that
section 712(1) limits GAO's audit authority to financial
transactions. As we explained in our June 22 letter, the Counsel«s
narrow interpretation of section 712 is inconsistent with the
language and legislative history of the statute, as well as years
of GAO practice. The statute extends GAO«s audit authority to ƒall
matters≈ related to the use of public money, not just costs of
activities.
Section 717(b) also clearly authorizes this study. It provides
that the Comptroller General "shall evaluate the results of a
program or activity the Government carries out under existing law."
The Counsel«s assertion that the phrase ƒexisting law≈ is limited
to statutes and excludes the Constitution is unsupported. As we
explained in our June 22 letter, the Counsel failed to supply any
evidence from the statutory language, legislative history, or case
law to support the assertion that Congress intended the phrase
"existing law" to exclude the Constitution, the highest law of the
land.
The Vice President«s August 2 letter noted that section 717
authorizes GAO to review the ƒresults≈ of agency programs and
activities and stated that "the Comptroller General is not
evaluating the 'results' of the Group's work; he is attempting to
inquire into the process by which the results of the Group's work
were reached." In effect, the August 2 letter suggests that section
717 does not provide GAO with authority to review the processes an
agency follows in establishing or implementing a program or
activity. We strongly disagree with this view.
The Presidential Memorandum establishing the NEPDG provided that
one of the results of this action would be the gathering of
information relevant to a national energy policy. Thus, the
meetings that are the focus of our review were the result of a
governmental activity−the establishment of the NEPDG. The NEPDG
carried out many activities, the results of which are subject to
evaluation by GAO under the plain meaning of the statute. However,
the Vice President«s August 2 letter in effect interprets ƒresults≈
as being restricted to ƒend results≈ or ƒultimate results.≈ Under
this narrow construction of the statute, GAO would be
prohibited
(…continued)
participate directly in the oversight process as an independent
congressional entity.≈ S. Rep. No. 96-570, at 2 (1979), reprinted
in 1980 U.S.C.C.A.N. 732, 733.
8 Id. at 1.
from scrutinizing any agency activity except the final program
result. Thus, even if GAO were able to identify certain
deficiencies in a land management plan, for example, GAO would be
prohibited from examining the process used to develop the plan in
order to suggest improvements. This would clearly be contrary to
the role that Congress has established for GAO.
There is no indication in section 717 or its legislative history
that Congress intended to take such a narrow view of GAO«s
authority. In fact, GAO has long interpreted its audit authority as
encompassing reviews of agency processes. This position, which has
not been challenged by any prior administration, is reflected in
the many congressional requests we receive to review agency
processes for a broad variety of activities. Several recent
examples include GAO«s review of the process the Forest Service
used to modify the Tongass National Forest plan,9 the process used
by NASA to contract for the design and delivery of the
international space station propulsion module,10 and the process
used by the Army Corps of Engineers in preparing an environmental
impact statement for actions related to the Snake River dams.11
The legislative history of the Legislative Reorganization Act of
1970, which enacted the authority now contained in section 717(b),
supports a broad interpretation of GAO«s authority. The objective
was to enhance GAO«s role of review and analysis, as part of a
larger effort to fortify congressional oversight by ļmak[ing] more
information available to Members and Committees of the Congress,
andºprovid[ing] them a means of interpreting the information they
have.≈12 Clearly it would have been contrary to the overall thrust
of the Act for Congress to exclude from GAO«s purview agency
processes and activities that are routinely the subject of
congressional oversight.13 Accordingly, it is unreasonable to
conclude that by using the term ƒresults≈ in section 717, Congress
intended to limit and restrict GAO«s review authority to simply
reviewing end results. Moreover, in any event,
9
Tongass National Forest: Process Used to Modify the Forest Plan,
GAO/RCED-00-45 April 17, 2000.
10
International Space Station Propulsion Module Procurement
Process, GAO-01-576R, April 26, 2001.
11
Army Corps of Engineers: An Assessment of the Draft
Environmental Impact Statement of the Lower Snake River Dams,
GAO/RCED-00-186, July 24, 2000.
12
H.R. Rep. No. 91-1215, at 12-13, reprinted in 1970 U.S.C.C.A.N.
4417, 4428.
13
There is no question that Congress has expansive oversight
powers with respect to agency processes and activities. Numerous
Supreme Court precedents recognize a broad and encompassing power
in Congress to engage in oversight and investigation. Thus, in
Eastland
v. United States Servicemen's Fund, 421 U.S. 491, 504 n. 15
(1975), the Court stated that the scope of Congress« power of
inquiry ƒis as penetrating and far-reaching as the potential power
to enact and appropriate under the Constitution.≈
section 712 grants GAO broad authority to investigate all
matters related to the use of public money and necessarily includes
the agency processes in implementing programs.14
While generally asserting that GAO lacks authority to do this
review, the Vice President has acknowledged GAO«s authority in one
area, agreeing that we can look into the direct and indirect
expenses of the NEPDG under section 712. To this end, on June 21,
his representatives provided us with 77 pages of miscellaneous
documents purporting to relate to direct and indirect costs
incurred in the development of the National Energy Policy. As we
have advised the Vice President«s representatives, the submission
is incomplete and is not fully responsive. Moreover, it is
virtually impossible to analyze the documentation.15 We cannot do a
meaningful review without an explanation of the nature and purposes
of these costs and the appropriation that was charged. Thus far, we
have sought to obtain adequate, relevant records and explanations
without success.


GAO«s Statutory Right of Access
The Vice President in his August 2 letter also asserts that the
term ƒagency≈ in 31 U.S.C. § 716 does not include the Vice
President because he is a constitutional officer of the government.
However, as noted above, we are requesting records from the Vice
President in his capacity as Chair of the NEPDG. The Vice President
provides no support for interpreting the term ƒagency≈ in Title 31
as excluding the NEPDG. Title 31 defines an ƒagency≈ subject to
GAO«s authority very expansively, to mean a ƒdepartment, agency, or
instrumentality≈ of the United States government, but not the
legislative branch or the Supreme Court. As broadly as the term
ƒagency≈ is now defined, the statutory language before the
codification of Title 31 in 1982 emphasizes its expansiveness.
Before the codification, the relevant term was ƒdepartment or
establishment,≈ defined in 31 U.S.C. § 2 (1976) to include ƒany
executive department, independent commission, board, bureau,
office, agency, or other establishment of the Government.≈ Given
the breadth of the statutory language, the NEPDG as chaired by the
Vice President is clearly an agency under Title 31 of the United
States Code.
The legislative history of the General Accounting Office Act of
1980, which amended GAO«s access statute (now 31 U.S.C. § 716) to
authorize GAO to enforce its right of access to agency records,
made it abundantly clear that Congress viewed the President and
his
14
See Enclosure 1, pp. 3-5, for a fuller discussion.
15
For example, some pages provided are simply numbers or dollar
amounts without an indication of the nature or purpose associated
with the amount or consist only of a drawing of cell or desk
phones. Others have multiple charges for moving phones or other
equipment, without identifying whether the moves were for NEPDG
staff, and which of the multiple charges are relevant to the moves.
In addition, there is nothing that identifies the support staff and
the White House Fellow, referred to as the group support staff,
assigned to provide support to the NEPDG.
closest advisers as being within GAO«s access authority and
subject to access enforcement actions. A key purpose of the 1980
Act was to strengthen GAO«s ability to obtain access to records in
the face of opposition by agencies including the White House. The
principal legislative history accompanying the Act16 chronicled the
different access problems GAO had encountered in obtaining records
to which it was legally entitled, including ƒserious access to
records difficulties at the White House.≈ These included an audit
that required GAO to obtain unemployment estimates from the Council
of Economic Advisers.17
The Senate report accompanying the 1980 Act explicitly
recognized that ƒthe President and his principal advisers and
assistants≈ are within the scope of GAO«s access rights and
enforcement authority.18 In order to accommodate executive branch
concerns about the extent to which GAO could judicially compel
disclosure of highly sensitive information, Congress added the
ƒcertification≈ mechanism. This enables the President and the
Director of the Office and Management and Budget (OMB) to preclude
a suit by the Comptroller General under certain special
conditions.19 As the Senate report explained:
ƒ[W]ith regard to enforcement actions at the Presidential level,
certifications provided for under section 102(d)(3) [now section
716(d)(1)(C)] are intended to authorize the President and the
Director of the Office of Management and Budget to preclude a suit
by the Comptroller General against the President and his principal
advisers and assistants, and against those units within the
Executive Office of the President whose sole function is to advise
and assist the President, for information which would not be
available under the Freedom of Information Act.≈20
16
S. Rep. No. 96-570, reprinted in 1980 U.S.C.C.A.N. 732.
17
The Justice Department ultimately conceded that the Council of
Economic Advisors was subject to GAO«s access authority and
provided the records. In this regard, during hearings that predated
the 1980 Act, the Deputy Assistant Attorney General of the Office
of Legal Counsel testified, ƒ[T]he long and the short of it is that
virtually every piece of information that was requested was
eventually provided and it was provided because the Attorney
General said this is what we think the law requires.≈ GAO
Legislation: Hearings before the Subcomm. on Energy, Nuclear
Proliferation, and Federal Services of the Senate Comm. on
Governmental Affairs, 96th Cong. 78 (1979).
18
S. Rep. No. 96-570, at 8, reprinted in 1980 U.S.C.C.A.N. at
739.
19
The certification provision, now contained in 31 U.S.C. §
716(d)(1)(C), precludes a suit by the Comptroller General if the
President or Director of OMB certifies that (1) the records could
be withheld under either of two Freedom of Information Act
exemptions in 5 U.S.C. § 552(b)(5)(deliberative process) and 5
U.S.C. § 552(b)(7)(law enforcement records) and (2) disclosure
could reasonably be expected to impair substantially the operation
of the government.
20
S. Rep. No. 96-570, at 8, reprinted in 1980 U.S.C.C.A.N. at
739.
Thus, it is clear that Congress crafted the certification
provision as a carefully balanced compromise that ensures the
President can protect the confidentiality of highly sensitive
information, the disclosure of which would substantially impair the
operations of government, while affording the Comptroller General
the access to information he needs to fulfill his responsibilities
under the law. Congress would not have needed to add the
certification provision to protect the presidential advisers if
their records were not within the scope of GAO«s access
authority.
Submission of Report
Since GAO has a legal right of access to the requested documents
and since full access was not provided within 20 days following our
July 18 letter pursuant to 31 U.S.C. §716(b)(1), I now submit this
report to you and the other designated officials. Unless an
exemption under section 716(d)(1) is invoked, such as certification
by the President or Director of OMB, I am authorized to bring a
civil action for judicial enforcement of our access request if full
and complete access to the records we are requesting is not
provided to GAO within 20 days following the filing of this
report.
I seek your assistance in resolving this matter in a timely
manner. We are hopeful that this pending access problem can be
resolved expeditiously, without litigation, and in a manner that
will allow us to fulfill our oversight and reporting
responsibilities to the Congress. If you or your representatives
have any questions or would like to meet to resolve this issue,
please contact me at [phone] or Anthony Gamboa, General
Counsel, at (202) 5125400.
Thank you for your time and attention to this important
matter.
Respectfully yours,
(signed)
David M. Walker Comptroller General of the United States
Enclosure 1 June 22, 2001 letter from the General Counsel of GAO
to the Counsel for the
Vice President Enclosure 2 Chronology of GAO«s Attempts to
Obtain Information