     General Accounting Office Request for Documents of the
            Federal Emergency Management Agency

T h e G e n e ra l A c c o u n tin g O ffice A c t o f 1980 gives the G e n e ra l A c c o u n tin g O ffice (G A O )
   new p o w e r to en fo rc e its requests for in fo rm atio n from ex ecu tiv e b ran ch agencies, but
   d o es not limit o r expand G A O 's u n d erly in g sta tu to ry a u th o rity to o btain such in fo rm a­
   tion.
In req u estin g d o cu m en ts o f th e F e d e ra l E m e rg e n c y M anagem ent A g e n c y (F E M A ), G A O
  acts as an ag en t o f th e C o n g ress an d th e re fo re has th e benefit o f the sam e p ro te c tio n
  against an ex ecu tiv e a g e n c y ’s assertion o f th e F re e d o m o f In fo rm atio n A c t ( F O IA )
  ex em p tio n s as d o es th e C o n g ress an d its com m ittees. A c c o rd in g ly , F E M A m ay not
  assert F O IA ex em p tio n (b)(5) as a basis for d eclin in g to release d o c u m e n ts to G A O .
T h e ex ecu tiv e b ran ch m ay, in a p p ro p ria te circu m stan ces, exercise its co n stitu tio n al a u ­
   th o rity to d eclin e to release in fo rm atio n in o rd e r to safeg u ard th e d isc h a rg e o f its
   functions.

                                                                                     September 10, 1980
                         MEMORANDUM OPINION FOR
                       TH E COUNSEL TO TH E PR ESID EN T

  This responds to the inquiry from your Office whether the General
Accounting Office Act of 1980 (GAO Act) 1 provides a basis on which
the Federal Emergency Management Agency (FEM A) 2 may decline
to provide the General Accounting Office (GAO) certain documents it
has requested. The GAO has requested access to FEM A’s documents
relating to that agency’s recommendations to the President regarding
emergencies and major disasters. Your Office explained that the re­
quested documents include requests from Governors for declarations by
the President of emergencies or major disasters.3 Also, such files in­
clude analyses of the Governors’ requests by FEM A’s regional and
national staff and officials, as well as transmittal memoranda to the
President recommending whether to declare an emergency or major
disaster.4

   1 Pub. L. No. 96-226, 94 Stat. 311.
   2 F E M A w as created pursuant to R eorganization Plan No. 3 o f 1978, 43 Fed. Reg. 41,943, to
coordinate the exercise o f pow ers previously dispersed am ong several agencies under w hich the
federal governm ent assists states in situations o f “em ergency" and “m ajor disaster." See also Executive
O rder No. 12,127, 3 C .F .R . 376 (1980).
   3 See 42 U.S.C. § 5141; 44 C .F .R . Part 20.
   4 Y our staff has confirm ed that in a particular case in w hich F E M A makes a recom m endation to
the President, a covering m em orandum will be prepared in the W hite H ouse by the D om estic Policy
StafT. W e understand that the G A O has not requested these m em oranda and that, in any event, they
are not generally available in F E M A 's files.


                                                       773
                                                   I.

   Your opinion request raises the general question whether the recently
enacted GAO Act creates any new bases on which the executive
branch would be authorized to deny the GA O ’s informational request.
For the first time, that Act extended to the GAO authority to proceed
to court to enforce its informational requests directed at executive
agencies. It also limited the Comptroller General’s power to proceed to
court in certain circumstances. Among the checks on the Comptroller
General’s authority to go to court is one pertaining to records
withholdable from a private requester under exemption (b)(5) of the
Freedom of Information Act (FO IA ),5 the disclosure of which could
reasonably be expected substantially to impair the operations of the
federal government. In order for FEM A to avail itself of this exemp­
tion, the President or the Director of the Office of Management and
Budget must certify in writing that these conditions have been satisfied,
and such official must fully explain his action.6 The legislative history
makes plain that Congress intended such a certification procedure to be
used sparingly, and only after a process of attempted accommodation
by both branches of government had been allowed to run.7
   Your Office’s inquiry, which takes note of the foregoing exemption
from the G A O ’s authority to proceed to court, asks whether it provides
a basis on which FEM A would be authorized to decline the G A O’s
informational request. For the reasons that follow, we conclude that
this provision of the GAO Act does not confer on FEM A —or on any
other agency from which the GAO seeks information—an independent
basis for refusing to provide information. It should be clearly under­
stood, however, that the documents your staff has described to us
might nonetheless be properly withheld from the GAO depending on
the considerations that historically have governed the relationship be­
tween the GAO and the executive branch.8
   A central concern underlying passage of the GAO Act was to give
the Comptroller General authority to seek judicial resolution of dis­
putes with executive departments regarding access to documents. Prior
to the A ct’s passage, the GAO had little recourse when confronted
with uncooperative executive branch agencies other than to report the
dispute to the appropriate congressional committees. Supporters of the
legislation claimed that on occasion this process has proved inadequate,
and that if the GAO were to perform its responsibilities in a thorough

   8    5 U .S.C. § 552(b)(5) pertains to “ inter-agency o r intra-agency m em orandum s o r letters which
w ould not be available by law to a party o th er than an agency in litigation w ith the agency . . .
   6 See § 102(dX3) o f the G A O Act.
   7 See S. Rep. N o. 570, 96th Cong., 2d Sess. 8 (1980).
   *    T hese considerations, grounded in the constitutional relationship betw een the executive and
legislative branches o f governm ent, are applied on a case-by-case basis. See note 13 infra.

                                                 774
and timely manner, it must have the authority to seek judicial assist­
ance. See H.R. Rep. No. 425, 96th Cong., 1st Sess. 4-9 (1979).
  Repeatedly during the hearings and debates on the bill, the point was
made that its authors intended to broaden the G A O ’s enforcement
powers while leaving untouched the underlying statutes providing au­
thority for the GAO to conduct audits and investigations. Two pas­
sages in the report of the Senate Committee on Governmental Affairs
make clear that the bill was not intended to limit or expand the G A O ’s
basic authority to obtain information from executive agencies:
          It is important to recognize that this legislation is not
          intended to alter in any way the current GAO right o f access
          to records to which GAO is entitled by statute. The legis­
          lation is neutral regarding any dispute concerning such
          right of access.9
                   *        *      *      *       *
          Although the Comptroller General's statutory right o f access
          is not diminished by this legislation, the President or the
          Director of the Office of Management and Budget may
          preclude his access to court once subsection (d)(3) is
          invoked.
S. Rep. No. 570, 96th Cong., 2d Sess. 8, 7 (1980) (emphasis added).
As these passages confirm, the bill’s extension to the GAO of power to
go to court does not affect the G A O ’s otherwise-existing statutory
rights of access to information from the executive branch. Thus, § 102
does not create any new basis for limiting those rights.9 Similarly, § 102
does not expand the G A O’s existing statutory rights of access to agency
records.10

                                                    II.

  The further issue arises whether, putting aside the GAO Act, FEM A
nonetheless may assert a right under the FOIA to decline to release to
the GAO documents that would be withholdable from a private citizen
under FOIA exemption (b)(5). The FOIA explicitly notes that its ex­
emptions from disclosure of agency records provide no authority to
withhold information from Congress. See 5 U.S.C. § 552(c). The
FO IA ’s legislative history underscores that since the Act refers only to
the public’s right to know about governmental activity; its provisions,

    9 See 125 C ong. Rec. 4287 (1980) (w here the floor sponsor, Senator G lenn, m akes clear that the bill
is designed to strengthen ‘‘G A O ’s existing authority to enforce its statutory right o f access to records
o f Federal agencies . . . .’’).
    10 See H .R. Rep. No. 425, 96th C ong., 1st Sess. 6, 8 (1979); General Accounting Office Act o f 1979,
Hearings before a Subcomm. o f the House Comm, on Government Operations, 96th Cong., 1st Sess. 1, 92
(1979) (Rep. Brooks); 125 C ong. Rec. 29,830 (1979) (Rep. Brooks). W e note that another section o f the
G A O A ct, § 101, does expand the G A O ’s access rights by granting the G A O authority to obtain
certain agency records dealing w ith “ unvouchered accounts.'* T his provision is not at issue in your
O ffice’s inquiry.


                                                   775
including its exemptions,      . . cannot . . . be backhandedly construed
as authorizing the withholding of information from the Congress, the
collective representative of the public.” S. Rep. No. 813, 89th Cong.,
 1st Sess. 10 (1965); see also H.R. Rep. No. 1497, 89th Cong., 2d Sess.
 11-12 (1966).
   O f course, Congress may and frequently does act through its agents,
such as its committees or subcommittees. Just as the FOIA exemptions
cannot be asserted against the Congress as a whole, they cannot be
asserted against its agents; as the District of Columbia Circuit Court of
Appeals has written: “a construction of section 552(c) which would
relate it only to action of Congress as an entity would render the
provision largely meaningless, and it is no doubt for that reason that it
has previously been implicitly rejected by this court, at least with
regard to the release of information to standing committees of the
Congress.” Murphy v. Dept, o f Army, 613 F.2d 1151, 1156-57 (D.C. Cir.
 1979). Accordingly, the question arises whether the GAO, in requesting
FEM A ’s documents, acts as an agent of the Congress and therefore has
the benefit of the same protection against an executive agency’s asser­
tion of the FO IA exemptions as does the Congress and its committees.
   We have frequently noted that, when the GAO is acting pursuant to
its statutory authority in investigating executive agencies on behalf of
Congress, it acts as an agent of the Congress. The status of the GAO as
an arm of the; Congress has been traditionally recognized by Con­
gress,11 as well as by the GAO itself and other authorities.12 Since the
GAO conducts any lawful investigation in its role as an agent of
Congress, it follows that an executive agency—including FEM A —
would not be able to assert against the GAO any FOIA exemption that
it could not make against Congress itself. FEM A, then, would not be
able to assert FO IA exemption (b)(5) as a basis for declining to release
documents to the GAO in this case.13

                                                    III.

  In sum, although § 102 of the GAO Act does grant the GAO a new
authority to enforce its informational requests in court, it does not alter

    11 See, e.g., 31 U.S.C. §§ 4 3 , 53, 65(d); R eorganization A ct o f 1949, 63 Slat. 205; Reorganization Act
o f 1945, 59 Stat. 616.
    12 See, e.g., 1980-81 United States Government Manual 55. See also W. W illoughby, The Legal Status
and Functions o f the General Accounting Office o f the National Government 12—16 (1927); C orw in,.
Tenure o f Office and the Removal Power, 27 C olum . L. Rev. 354, 396 (1927).
    13 W e are aw are o f no facts that w ould th ro w into question the G A O ’s statutory authority to
con d u ct the present investigation o f F E M A . N o r has any such question been raised by your Office.
W e note also that, although § 102 o f the G A O A ct and the F O IA provide no independent statutory
bases on w hich F E M A may decline to release docum ents to the G A O , the congressional recognition
in § 102(b)(3) o f the G A O A ct o f an executive branch interest in protecting its deliberative processess
reaffirm s the im portance o f th at constitutionally based interest. T h e executive branch may, in appropri­
ate cases, exercise its constitutional au th o rity to decline to release inform ation in o rd e r to safeguard
the discharge o f its functions. See generally Nixon v. Administrator o f General Services, 433 U.S. 425
(1977); United States v. Nixon. 418 U.S. 683 (1974).


                                                     776
the underlying duties and powers of the executive branch and the GAO
respectively with regard to the G A O’s statutory right of access to
executive branch documents. Further, if the GAO Act operates in the
way its proponents intended, the GA O ’s power to go to court will be
invoked only as a last resort in the rare case in which the traditional
accommodation between the two branches of government fail. We have
no reason to believe, on the basis of the information your Office has
supplied us, that this will be such a case.

                                       L arry A. H am m ond
                                Deputy Assistant Attorney General
                                    Office o f Legal Counsel




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