oversight

The White House: Status of Review of the Executive Residence

Published by the Government Accountability Office on 1997-11-06.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                          United States General Accounting Office

GAO                       Testimony
                          Before the Subcommittee on Treasury, Postal Service, and
                          General Government, Committee on Appropriations,
                          House of Representatives


For Release on Delivery
Expected at
10:00 a.m., EDT
                          THE WHITE HOUSE
Thursday
November 6, 1997

                          Status of Review of the
                          Executive Residence
                          Statement of Robert P. Murphy, General Counsel




GAO/T-OGC/AIMD-98-12
Mr. Chairman, Mr. Hoyer, and Members of the Subcommittee:

We are pleased to be here to discuss the status of our work on the number
of overnight guests and stays in the Executive Residence at the White
House. On March 20, 1997, the Subcommittee asked us to conduct three
assignments: (1) an audit of certain fiscal year 1996 expenditures,
including those to operate the Executive Residence, that are accounted for
solely on the certificate of the President or the Vice President and referred
to as “unvouchered activities”; (2) a review of certain processes and
procedures relating to reimbursable expenditures of the Executive
Residence, such as those for political events; and (3) a review of the
number and cost of overnight stays in the Executive Residence since
January 1993.

The first assignment is proceeding on schedule. We are auditing the
unvouchered expenditures as provided in sections 105(d) and 106(b) of
title 3, United States Code. These provisions authorize GAO to examine all
necessary books, documents, papers, and records related to certain
unvouchered expenditures of the President and Vice President. Under
these sections, GAO verifies that the unvouchered expenditures were for
authorized purposes and reports any unauthorized expenditures to the
Congress. Since the enactment of these provisions in 1978, we have
conducted audits of presidential and vice presidential unvouchered
expenditures for six fiscal years: 1979, 1980, 1982, 1986, 1988, and 1991. In
each case, we reported to the Congress that the expenditures reviewed
were made for authorized purposes.

As in prior years, we are auditing presidential and vice presidential
unvouchered expenditures for fiscal year 1996 at the Executive Residence,
the White House Office, the National Park Service, and the Vice
President’s Residence. We expect to complete this work and issue our
audit report early next spring, which is generally consistent with the
timeframe for our previous unvouchered expenditure audits.

The second assignment also is proceeding on schedule. The review of
reimbursable expenditures of the Executive Residence involves official
and nonofficial events, as well as personal expenses of the First Family.
Because they are initially treated as unvouchered expenditures financed
from the Executive Residence at the White House, Operating Expenses
appropriation, we are reviewing the reimbursement processes and
procedures as part of our unvouchered audit. For example, work is
underway to assess whether fiscal year 1996 White House events were



Page 1                                                   GAO/T-OGC/AIMD-98-12
                      properly classified as reimbursable and nonreimbursable, whether the
                      amounts billed for reimbursable activities were properly authorized and
                      adequately supported, and whether the collections were promptly
                      received.


                      As you know, in connection with requests that we determine the average
GAO Review of the     cost of an overnight stay at the Executive Residence and provide
Number of Overnight   information on related overtime compensation for domestic staff within
Guests and Stays at   the Executive Residence, the Subcommittee asked us to determine the
                      number of persons who were overnight guests in the Executive Residence
the Executive         and the total number of overnight stays since January 1993. The White
Residence             House has publicly stated that there were 938 overnight guests and 831 of
                      their names have been reported in the media. The White House told us that
                      the names of the remaining people were not provided in order to preserve
                      the privacy of the First Family. We understand that White House staff or
                      other government employees who stayed overnight in the Executive
                      Residence are not included in the total of 938 overnight guests. The White
                      House has not stated how many nights the listed guests stayed. We have
                      made no progress in confirming the aggregate number of overnight guests
                      and determining the number of stays within the Executive Residence
                      because we have obtained no records from the White House.

                      To respond to the Subcommittee’s request, we simply require access to
                      documents or systems that will establish the aggregate number of guests
                      and stays. If such documents or systems do not exist, we need to ascertain
                      the overnight guests at the Executive Residence during the period
                      indicated from source documents or systems maintained by the White
                      House or others. Once the number of overnight guests is established, we
                      need to determine the number of nights each overnight guest stayed at the
                      Executive Residence. We can then determine and report the total number
                      of overnight guests and stays since January 1993.

                      We have discussed this review with White House Counsel staff and others,
                      but have made no progress in obtaining the information needed to do the
                      work requested. On April 24, 1997, we met with officials from several
                      White House offices to advise them of the Subcommittee’s request,
                      including the request for information on overnight stays at the Executive
                      Residence. On June 17, 1997, we provided the Associate Counsel to the
                      President with an informal list of four areas related to the overnight stays
                      that we wanted to discuss, including the nature, location, and people
                      responsible for source documents and systems showing overnight stays at



                      Page 2                                                  GAO/T-OGC/AIMD-98-12
                         the Executive Residence. On July 11, 1997, we met with the Deputy
                         Counsel and Associate Counsel to the President, at which time we
                         discussed a number of areas, including the sources and methods used to
                         compile the list of overnight guests that was previously made public. On
                         July 28, 1997, the Associate Counsel sent us a list of names of those who
                         were overnight guests at the Executive Residence and advised us that the
                         list had been released to the public. We made several subsequent requests
                         to the Associate Counsel for a follow-up meeting, and on September 19,
                         1997, we again met with the Deputy Counsel and Associate Counsel to
                         discuss information relating to our review, but made no progress in
                         obtaining any records.


Written Request of the   On October 16, 1997, we wrote to the Deputy Counsel to the President to
White House              insist on our access, by November 1, 1997, to all books, documents,
                         papers, or other records related to the number of overnight guests at the
                         Executive Residence and the beginning and ending dates of each guest
                         stay since January 1993. We made that request to achieve our objective of
                         counting and reporting the number of overnight guests and stays. The
                         letter did not request the identity of the overnight guests or the reasons for
                         their stay, although we recognize that the records that allow us to
                         determine the number and duration of overnight stays may identify the
                         guests by name.

                         The Associate Counsel to the President replied by letter of October 23,
                         1997, that she and others had compiled the previously published list of
                         overnight guests from documentation that included materials belonging to
                         the First Family, including “personal and private correspondence.” The
                         letter characterized our request as one to “gain access to private and
                         personal papers of the First Family.” In expressing concern about GAO
                         inspecting these materials, the Associate Counsel expressed a willingness
                         to continue discussing the matter, but as of today we have received no
                         records that would enable us to provide the Subcommittee with the
                         requested information on overnight guests and stays at the Executive
                         Residence.

                         We are not unmindful of the sensitivity of using materials of the First
                         Family in performing our review. Accordingly, we have been and continue
                         to be open to reviewing other materials to determine the number and
                         duration of overnight guests and stays at the Executive Residence. In this
                         connection, our letter did not request the “private and personal papers of
                         the First Family” or any other specific papers of the White House. We only



                         Page 3                                                   GAO/T-OGC/AIMD-98-12
                          requested documents “related to the number of overnight guests at the
                          Executive Residence and the beginning and ending dates of each guest
                          stay since January 1993.”

                          At the invitation of the Associate Counsel, we met yesterday with White
                          House staff, including the Deputy Counsel and the Associate Counsel, to
                          discuss our request. At that meeting, we presented a letter proposing that
                          we discuss the possibility of alternative sources of information with the
                          Executive Residence’s Chief Usher, Administrative Assistant, Head
                          Housekeeper, and others.

                          During our discussions, the Deputy Counsel made clear that she was not
                          representing that there were no other sources of the number of guests and
                          stays, only that the list of guests released by the White House was
                          compiled from private materials. She also stated that there was no concern
                          about GAO determining the aggregate number of guests and stays from
                          non-private materials. The White House is considering our formal request
                          to discuss alternative sources of information with the Chief Usher and
                          others.

                          There were two legal issues raised in passing in the Associate Counsel’s
                          October 23 letter. She first argues that a privacy interest protects the First
                          Family’s notes and correspondence. Second, she reminded us that our
                          statutory right of access encompasses “agency records” and advised that
                          this right of access does not reach records of the First Family. I will briefly
                          discuss each of these issues in turn.


The President’s Privacy   The Associate Counsel argues that GAO is seeking access to the “private
Interest                  and personal papers of the First Family,” suggesting that Presidential
                          privacy interests shield these documents from scrutiny. The Supreme
                          Court has recognized that, while the President has voluntarily surrendered
                          the privacy accorded non-public figures, the President and other public
                          officials “are not wholly without constitutionally protected privacy rights
                          in matters of personal life unrelated to any acts done by them in their
                          public capacity.” Nixon v. Administrator of General Services, 433 U.S. 425,
                          455, 457 (1977). This privacy interest is qualified—any intrusion must be
                          weighed against the congressional, public, or other interest in reviewing
                          the private materials. Id. at 458–465 (President’s privacy interest in private
                          documents and tape recorded conversations outweighed by limited
                          intrusion by archivists to separate private from non-private materials, the
                          lack of an alternative for separating private from other materials, the



                          Page 4                                                    GAO/T-OGC/AIMD-98-12
                         public interest in preserving historical materials mixed with private
                         materials, and other factors); Nixon v. Freeman, 670 F.2d 346, 354, 362-3
                         (D.C. Cir. 1982), cert. denied, 459 U.S. 1035 (1982) (President’s privacy
                         interest in tape recorded conversations and in tape recorded diaries
                         outweighed by limitations on proposed intrusions and other factors);
                         Dellums v. Powell, 642 F.2d 1351, 1354, 1362-3 (D.C. Cir. 1980) (President’s
                         common law privacy interests entitled to considerable measure of
                         deference by courts, but may be outweighed by competing interests).

                         The power of Congress to investigate and obtain records in aid of its
                         investigation is as broad as its power to legislate. McGrain v. Daugherty,
                         273 U.S. 173 (1926). When the executive branch withholds information
                         from Congress based on an assertion of Presidential privacy or other
                         protected interest, the courts have balanced this interest against the
                         congressional need for the information. See, e.g., United States v. AT&T,
                         567 F.2d 121 (D.C. Cir. 1977), in which the court sought to balance the
                         Congress’ interest in assuring the proper expenditure of appropriated
                         funds and the executive branch’s interest in protecting the national
                         security (requests from FBI to AT&T for warrantless wiretaps).

                         Seeking workload information—how many people are staying
                         overnight—for a taxpayer funded establishment, the Executive Residence,
                         by the relevant Subcommittee of the House Committee on Appropriations
                         is clearly a suitable congressional inquiry. See United States v. AT&T, 551
                         F.2d 384, 393 (D.C. Cir. 1976). There is no allegation that Congress is
                         seeking to “expose for the sake of exposure,” id.; in fact, the request is
                         tailored to include aggregate numbers of Executive Residence guests and
                         stays—not the identification of personal visitors or other private
                         information.

                         It is also significant that the intrusion here is at most minimal. GAO has
                         proposed that it would not remove copies or original documents from the
                         White House premises, but would merely use the materials to determine
                         aggregate numbers. GAO’s record of protecting confidential information is
                         exemplary; careful observation of confidentiality restrictions is necessary
                         for GAO to do its work. Finally, access to what the White House considers
                         “private” materials is only necessary if they are the only source for the
                         requested information.


GAO’s Access Authority   It is important to make clear the authority under which GAO is performing
                         the review of overnight guests and stays at the Executive Residence. As



                         Page 5                                                  GAO/T-OGC/AIMD-98-12
previously stated, your request asked GAO to conduct several assignments.
The first—an audit of five categories of unvouchered expenditures of the
President and the Vice President—is conducted pursuant to sections
105(d) and 106(b) of title 3, United States Code. The statute specifically
addresses unvouchered expenditures, describes the scope of our audit,
establishes our right of access to records relating to the unvouchered
expenditures, and limits our reporting responsibilities.

In contrast, our review of the number of overnight guests and stays in the
Executive Residence falls under section 712 of title 31, United States Code.
Paragraph (1) of section 712 authorizes GAO to investigate all matters
related to the use of public money. Paragraphs (4) and (5) of section 712
direct GAO to investigate and report matters ordered by a congressional
committee having jurisdiction over appropriations and to give the help and
information the committee requests.

Access to records for reviews performed under section 712 is authorized
by section 716 of title 31, United States Code. Section 716 provides that
each agency shall give GAO the information it requires concerning the
duties, powers, activities, organization, and financial transactions of the
agency. GAO may inspect agency records to get the information.

As a result of the 1982 codification of title 31 of the United States Code,
sections 101 and 701 define the term “agency” for purposes of sections 712
and 716 to mean a “department, agency, or instrumentality” of the United
States Government, but not the legislative branch or the Supreme Court.
As broad as the term “agency” is now defined, the statutory language
before the codification emphasizes its expansiveness. Before the
codification, the relevant term was “department or establishment,” defined
in 31 U.S.C. 2 (1976) to include “any executive department, independent
commission, board, bureau, office, agency, or other establishment of the
Government.” The 1982 codification of title 31 restated, without
substantive change, the laws enacted before April 16, 1982, that were
replaced by the codification. See Public Law 97-258, § 4(a), 96 Stat. 1067
(1982).

Similarly, the language of the access provision before codification
illustrates how encompassing the term “records” is as used in section 716.
The predecessor to section 716, 31 U.S.C. 54 (1976), used not just the term
“records” but also such terms as “correspondence,” “papers,” and “written
information” to describe the reach of our access authority.




Page 6                                                  GAO/T-OGC/AIMD-98-12
In analyzing the scope of our authority under sections 712 and 716, we are
aware that the Executive Residence is not considered an “agency” for
purposes of the Freedom of Information Act (FOIA). Sweetland v. Walters,
60 F.3d 852 (D.C. Cir. 1995). The FOIA definition of “agency” as interpreted
by the courts has no relevance to the definition of “agency” in title 31. The
FOIA controls public access to government information for the purpose of
furthering the public’s understanding of government operations. In light of
that purpose, the Congress has explicitly ratified an interpretation of the
term “agency” that excludes units of the Executive Office of the President
with no substantial independent authority to direct executive branch
officials. Armstrong v. Executive Office of the President, 90 F.3d 553,
557–8 (D.C. Cir. 1996).

Here, disclosure to GAO is solely in aid of the congressional power to
oversee, investigate, and legislate. Over the last century, the Supreme
Court has characterized the scope of congressional power to investigate as
penetrating and far-reaching as the potential power to enact legislation,
oversee the operation of government, and appropriate funds under the
Constitution. Barenblatt v. United States, 360 U.S. 109, 111 (1959);
McGrain v. Daugherty, 273 U.S. 173 (1926). The Court presumes a valid
legislative purpose for congressional inquiries, In re Chapman, 166 U.S.
661, 670 (1897), and will consider such sources as a committee chairman’s
opening statement to support the existence of a legislative purpose,
Wilkinson v. United States, 365 U.S. 399, 410 (1961). This has been true
even when the witness at a congressional investigation objected to the
committee’s questions on the grounds that they related to private affairs.
Sinclair v. United States, 279 U.S. 263, 295 (1929).

The Executive Residence is a government facility staffed by federal
employees and funded with appropriated tax dollars. This Subcommittee
considers budget requests by the President for the operation and
maintenance of the Executive Residence. In so doing, it desires to have
information relating to the operation of the Executive Residence and the
workload of the government employees responsible for maintaining it,
including overtime and duties associated with overnight guests, as well as
the number of overnight guests and stays. Accordingly, for purposes of our
audit and access authority, we believe the Executive Residence is an
“establishment” of the United States and that papers, correspondence, and
other written materials documenting its use, created by the President or
First Lady or received by them from private parties, and used by
government employees to compile statistics released to the public, are
“records” as that term is used in 31 U.S.C. 716.



Page 7                                                  GAO/T-OGC/AIMD-98-12
Mr. Chairman, that concludes my statement. I will be pleased to answer
questions you or other members of the Subcommittee may have.




Page 8                                               GAO/T-OGC/AIMD-98-12
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