Section 301 (a) (31 U.s.c. 866), “that in Making the Audits ..

the Comptroller General shall, to the fullest extent deemed by him to be practicable, utilize reports of examination of Government corporations made by a supervising administrative agency pursuant to law.” The legislative reports on that act, Senate Report 694, page 10, contains the following significant language:

“The audit provisions are intended to give the Congress the independent audit reports of its agent, the Comptroller General, as to the operations and financial condition of every Government corporation in which the Government has a capital interest.... If the audit by the Comptroller General is to be a truly independent audit, he must not be restricted in such a way as to prevent him from examining into and reporting the transactions of any Government corporation to the extent deemed by him to be necessary.

“The Comptroller General has stated that in making his audits he will give full consideration to the effectiveness of the existing systems of internal accounts, procedures, and controls and of external examinations by an administrative supervisory agency. The bill includes a specific provision requiring the Comptroller General in making his audits to utilize, to the fullest extent deemed by him to be practicable, reports of examinations of Government corporations by a supervising administrative agency pursuant to law.”

The Budget and Accounting Procedures Act of 1950 requires each executive agency to maintain systems of accounting and internal control and provides, in section 117 (a) (31 U.S.C. 67 ), that the Comptroller General in determining auditing procedures and the extent of examination to be given accounts and vouchers give consideration to “the effectiveness of accounting organizations and systems, internal audit and control, and related administrative practices of the respective agencies.”

The Comptroller General is required to audit the activities of the executive departments and agencies; to make expenditure analyses to determine whether funds have economically been expended; and to give consideration to the departments’ internal audit and control and related administrative practices. To perform these duties he is given the clear statutory authority to require information of the departments and agencies regarding their organization, activities, and methods of business, coupled with the right to access to any books, documents, papers, or records of any such establishment (except as to the confidential State Department funds).

There have been no court cases construing the statutes giving the Comptroller General access to records. However, in 1925, the Attorney General in an opinion to the Secretary of War (34 Op. Atty. Gen. 446), concerning a request by the Comptroller General for information relative to an award of a contract showing that the lowest bid was accepted, or if otherwise, a statement for the reasons for accepting other than the lowest bid, advised, in part, as follows:

“It will be observed that the Comptroller General states that this requirement is made necessary in order that a satisfactory audit may be made. What papers or data he should have to make such an audit would seem to be a matter solely for his determination. Moreover, section 313 of the Budget and Accounting Act provides (p. 26):

“All departments and establishments shall furnish to the Comptroller General such information regarding the powers, duties, activities, organization, financial transactions, and methods of business of their respective offices as he may from time to time require of them; and the Comptroller General, or any of 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....”

Questions as to whether the General Accounting Office has a right to access to records claimed to be confidential for security or other reasons have arisen from time to time and the General Accounting Office has always taken the position that it has the right to the information, even though certain provisions of law relating to disclosure might be applicable to it.

The General Accounting Office recognizes that certain of the functions of the inspectors general, such as criminal and personnel investigations, are of a confidential nature and it will normally accept summaries of facts contained in such reports to the extent they are needed in connection with its work. However, the inspectors general also have as a part of their respective missions and duties responsibility for conducting inspections, surveys, and examinations of the effectiveness of operations and overall efficiency of a command, installation, or activity. These functions may be performed on a periodic or special basis as directed by competent authority. The performance of these functions constitutes an important part of the process of management evaluations and internal reviews as distinguished from criminal or personnel investigations. They provide officials and appropriate personnel of authority with an independent appraisal of the effectiveness of operations and overall efficiency. Moreover, a very considerable part of the inspections and reviews made by the inspectors general involve reviews of procedures and policies and as such are an important segment of the internal reviews and control which the General Accounting Office, under section 117 (a) of the Budget and Accounting Procedures Act of 1950 is required to consider and recognize in determining the audit procedures to be followed in its reviews.

The scope of inspection and survey programs of the inspectors general is similar in character to much of the work the General Accounting Office has scheduled in requirements, procurement, supply management, and research and development areas. The programs of the Deputy Inspector General for Inspection of the Air Force covering the period July 1, to December 31, 1958, include (1) a survey of Air Force procurement methods (advertising versus negotiation); (2) a survey of procurement quantitative and qualitative program changes; (3) a survey of procurement of commercial communications and utility services; (4) a survey of contract cost overruns; (5) a survey of maintenance programs; (6) a survey of modification programs; (7) a survey of the application of electronic data processing systems and other like subjects. All of these subjects represent internal and management evaluations which would clearly be a part of “internal audit and control” within the meaning of section 117 (a) of the Accounting and Auditing Act of 1950. It is essential that such reports be made available to the General Accounting Office in order that it can evaluate the effectiveness of the department’s system of internal control and to preclude unwarranted and unnecessary duplication of effort in the internal audit and the independent review made by this Office. The Air Force Inspector General’s report on the ballistic missiles program clearly falls within the term “internal audit and control.”

The Secretary of the Air Force in refusing the Comptroller General access to the Inspector General’s report on the ballistic missiles program stated that the Inspector General’s reports are prepared solely for the use of responsible officials within the Air Force, and that the objective of self-criticism can be obtained only if the Inspector General’s organization has the assurance that its reports will, without exception, be kept within the Department. The Secretary also stated that the report in question concerned the internal management of the Department, and was prepared solely for the benefit and use of those officers and employees of the Department who are responsible for its administration, and that the release of such reports to persons outside the Department would have a serious effect on the effective administration of the Department. The Secretary concluded that these considerations compelled him to conclude that the public interest would best be served by not releasing the report.

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