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PRESIDENT HOOVER'S ADMINISTRATION

A similar question arose in 1930 during the administration of President Hoover. Secretary of State Stimson refused to disclose to the chairman of the Senate Foreign Relations Committee certain confidential telegrams and letters leading up to the London Conference and the London Treaty. The committee asserted its right to have full and free access to all records touching the negotiations of the treaty, basing its right on the constitutional prerogative of the Senate in the treaty-making process. In his message to the Senate, President Hoover pointed out that there were a great many informal statements and reports which were given to the Government in confidence. The Executive was under a duty, in order to maintain amicable relations with other nations, not to publicize all the negotiations and statements which went into the making of the treaty. He further declared that the Executive must not be guilty of a breach of trust nor violate the invariable practice of nations. "In view of this, I believe that to further comply with the above resolution would be incompatible with the public interest" (S. Doc. No. 216, 71st Cong., special sess., p. 2).

PRESIDENT FRANKLIN D. ROOSEVELT'S ADMINISTRATION

The position was followed during the administration of President Franklin D. Roosevelt. There were many instances in which the President and his executive heads refused to make available certain information to Congress the disclosure of which was deemed to be confidential or contrary to the public interest. Merely a few need be cited.

1. Federal Bureau of Investigation records and reports were refused to congressional committees in the public interest (40 Op. A. G. No. 8, April 30, 1941). 2. The Director of the Federal Bureau of Investigation refused to give testimony or to exhibit a copy of the President's directive requiring him, in the interests of national security, to refrain from testifying or from disclosing the contents of the Bureau's reports and activities (hearings, vol. 2, House 78th Cong. Select Committee To Investigate the Federal Communications Commission (1944), p. 2337).

3. Communications between the President and the heads of departments were held to be confidential and privileged and not subject to inquiry by a committee of one of the Houses of Congress (letter dated January 23, 1944,) signed Francis Biddle, Attorney General to Select Committee, etc.).

4. The Director of the Bureau of the Budget refused to testify and to produce the Bureau's files, pursuant to subpena which had been served upon him, because the President had instructed him not to make public the records of the Bureau due to their confidential nature. Public interest was again invoked to prevent disclosure (reliance placed on Attorney General's Opinion in 40 Op. A. G. No. 8, April 30, 1941).

5. The Secretaries of War and Navy were directed not to deliver documents which the committee had requested on grounds of public interest. The Secretaries, in their own judgment, refused permission to Army and Navy officers to appear and testify because they felt that it would be contrary to the public interest (hearings, Select Committee To Investigate the Federal Communications Commission, vol. 1, pp. 46, 48–68).

PRESIDENT TRUMAN'S ADMINISTRATION

During the Truman administration also the President adhered to the traditional Executive view that the President's discretion must govern the surrender of executive files. Some of the major incidents during the administration of

President Truman in which information, records, and files were denied to congressional committees were as follows:

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Mar. 4, 1948..
Mar. 15, 1948...

March 1948...

Aug. 5, 1948.

Feb. 22, 1950..

Mar. 27, 1950..

May 16, 1951.............
Jan. 31, 1952..

Apr. 22, 1952.

Apr. 3, 1952.

FBI letter-report on Dr. Condon, Director of National Bureau of Standards, refused by
Secretary of Commerce.

President issued directive forbidding all executive departments and agencies to furnish
information or reports concerning loyalty of their employees to any court or committee
of Congress, unless President approves.

Dr. John R. Steelman, Confidential Adviser to the President, refused to appear before
Committee on Education and Labor of the House, following the service of two sub-
penas upon him. President directed him not to appear.

Attorney General wrote Senator Ferguson, chairman of Senate Investigations Sub-
committee, that he would not furnish letters, memoranda, and other notices which
the Justice Department had furnished to other Government agencies concerning
W. W. Remington.
8. Res. 231 directing Senate subcommittee to procure State Department loyalty files
was met with President Truman's refusal, following vigorous opposition of J. Edgar
Hoover.

Attorney General and Director of FBI appeared before Senate subcommittee. Mr.
Hoover's historic statement of reasons for refusing to furnish raw files approved by
Attorney General.

General Bradley refused to divulge conversations between President and his advisers
to combined Senate Foreign Relations and Armed Services Committees.
President Truman directed Secretary of State to refuse to Senate Internal Security
Subcommittee the reports and views of Foreign Service officers.

Acting Attorney General Perlman laid down procedure for complying with requests for
inspection of Department of Justice files by Committee on Judiciary:

Requests on open cases would not be honored. Status report will be furnished.
As to closed cases, files would be made available. All FBI reports and confidential
information would not be made available.

As to personnel files, they are never disclosed.

President Truman instructed Secretary of State to withhold from Senate Appropriations Subcommittee files on loyalty and security investigations of employees-policy to apply to all executive agencies. The names of individuals determined to be security risks would not be divulged. The voting record of members of an agency loyalty board would not be divulged.

Thus, you can see that the Presidents of the United States have withheld information of executive departments or agencies whenever it was found that the information sought was confidential or that its disclosure would be incompatible with the public interest or jeopardize the safety of the Nation. The courts too have held that the question whether the production of the papers was contrary to the public interest, was a matter for the Executive to determine. By keeping the lines which separate and divide the 3 great branches of our Government clearly defined, no 1 branch has been able to encroach upon the powers of the other.

Upon this firm principle our country's strength, liberty, and democratic form of government will continue to endure.

EXHIBIT No. 4

SECTION 161 OF THE REVISED STATUTES OF THE UNITED STATES (5 U.S.C. 22), (AS AMENDED BY PUBLIC LAW 85-619, 1958)

SEC. 161. The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it. This section does not authorize withholding information from the public or limiting the availability of records to the public.

EXHIBIT No. 5

THE BUDGET AND ACCOUNTING ACT

Comprising the act of 1921, as amended and extended by the Budget, and Accounting Procedures Act of 1950 and other enactments, through the 2d session of the 84th Congress

(Prepared by Legislative Digest Unit, Office of Legislative Liaison, General Accounting Office

[42 Stat. 201

PUBLIC LAW 13-67TH CONGRESS

CHAPTER 18-1ST SESSION

S. 1084

(As amended through the 2d sess. of the 84th Cong.)

[Additional and amending language shown in [brackets]]

AN ACT To provide a national budget system and an independent audit of Government accounts, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

TITLE I-DEFINITIONS

SEC. 1. This Act may be cited as the "Budget and Accounting Act, 1921" (31 U.S.C. 1).

SEC. 2. When used in this Act-

The terms "department and establishment" and "department or establishment" mean any executive department, independent commission, board, bureau, office, agency, or other establishment of the Government, including [any independent regulatory commission or board and] 1 the municipal government of the District of Columbia, but do not include the Legislative Branch of the Government or the Supreme Court of the United States;

The term "the budget” means the Budget required by section 201 to be transmitted to Congress;

The term "Bureau" means the Bureau of the Budget;

The term "Director" means the Director of the Bureau of the Budget; and The term "Assistant Director" means the Assistant Director of the Bureau of the Budget.

[The term "appropriations" includes, in appropriate context, funds and authorizations to create obligations by contract in advance of appropriations, or any other authority making funds available for obligation or expenditure.] ' (31 U.S.C. 2).

TITLE II-THE BUDGET

[SEC. 201. (a) The President shall transmit to Congress during the first fifteen days of each regular session, the Budget, which shall set forth his Budget

1 Added by sec. 201, Public Law 19 (53 Stat. 561, 565), 76th Cong.

Added by sec. 101, Public Law 784 (64 Stat. 832), 81st Cong.

2

message, summary data and text, and supporting detail. The Budget shall set forth in such form and detail as the President may determine

[(1) functions and activities of the Government:

[(2) at such times as may be practicable, information on program costs and accomplishments;

[(3) any other desirable classifications of data;

[(4) a reconciliation of the summary data on expenditures with proposed appropriations;

[(5) estimated expenditures and proposed appropriations necessary in his judgment for the support of the Government for the ensuing fiscal year, except that estimated expenditures and proposed appropriations for such year for the legislative branch of the Government and the Supreme Court of the United States shall be transmitted to the President on or before October 15 of each year, and shall be included by him in the Budget without revision;

[(6) estimated receipts of the Government during the ensuing fiscal year, under (1) laws existing at the time the Budget is transmitted and also (2) under the revenue proposals, if any, contained in the Budget;

[(7) actual appropriations, expenditures, and receipts of the Government during the last completed fiscal year;

[(8) estimated expenditures and receipts, and actual or proposed appropriations of the Government during the fiscal year in progress;

[(9) balanced statements of (1) the condition of the Treasury at the end of the last completed fiscal year, (2) the estimated condition of the Treasury at the end of the fiscal year in progress, and (3) the estimated condition of the Treasury at the end of the ensuing fiscal year if the financial proposals contained in the Budget are adopted;

[(10) all essential facts regarding the bonded and other indebtedness of the Government; and

[ (11) such other financial statements and data as in his opinion are necessary or desirable in order to make known in all practicable detail the financial condition of the Government.] 8 (31 U.S.C. 11.)

[SEC. 201. (b) Whenever the President determines there has been established a satisfactory system of accrual accounting for an appropriation or fund account, each proposed appropriation thereafter transmitted to the Congress for such account pursuant to the provisions of this Act shall be accompanied by a proposed limitation on annual accrued expenditures. The President may include in the Budget with any such proposed limitation on annual accrued expenditures, proposals for provisions authorizing the head of a department or establishment to make transfers, within his department or establishment, between such limitations on annual accrued expenditures; and such provisions may limit by amount or by per centum the size of any transfer so proposed.

[(c) Whenever an appropriation is subject to a limitation on annual accrued expenditures, there shall be charged against the limitation the cost of goods and services and other assets received, advance payments made and progress payments becoming due, and the amount of any other liabilities becoming payable, during the fiscal year concerned.

[(d) At the end of the fiscal year concerned, any unused balance of the limitation on annual accrued expenditures shall lapse, except that whenever any liabilities are incurred within the limitation provided for in any fiscal year (whether or not recorded or reported in such fiscal year), nothing in this section shall be construed to prevent the making of payment therefor in any subsequent fiscal year.

[(e) Any obligations incurred during the fiscal year concerned or in prior fiscal years which do not result in liabilities becoming payable during the fiscal year concerned shall be charged against the limitation an annual accrued expenditures for any succeeding fiscal year in which such obligations may result inliabilities becoming payable.

[(f) Nothing in subsections (b) through (e) of this section shall be construed to change existing law with respect to the method or manner of making appropriations or the incurring of obligations under appropriations].*

* Amended by sec. 102(a), Public Law 784 (64 Stat. 832), 81st Cong., and sec. 1(a), Public Law 863 (70 Stat. 782), 84th Cong.

Added by sec. 1, Public Law 759 (72 Stat. 852, 853), 85th Cong.

NOTE. The cited Public Law 759, 85th Congress, approved August 25, 1958, further provides:

"SEC. 2. (a) It shall be in order to provide in any bill or joint resolution making appropriations, or in any amendment thereto, limitations on annual accrued expenditures covering amounts becoming payable as a result of obligations incurred both in the fiscal year concerned and in prior fiscal years, and to include in any such bill or joint resolution provisions authorizing the head of a depart ment or establishment to make transfers, within his department or establish ment, between such limitations on annual accrued expenditures; and such provisions may limit by amount or by per centum the size of any transfer so provided for.

"(b) The provisions of subsection (a) of this section are enacted by the Congress

"(1) as an exercise of the rulemaking power of the Senate and the House of Representatives, respectively, and as such they shall be considered as part of the rules of each House, respectively, or of that House to which they specifically apply; and such rules shall supersede other rules only to the extent that they are inconsistent therewith; and

“(2) with full recognition of the Constitutional right of either House to change such rules (so far as relating to the procedure in such House) at any time, in the same manner and to the same extent as in the case of any other rule of such House.

"SEC. 3. This Act, and the amendments made thereby shall cease to be in effect April 1, 1962."

SEC. 202. (a) If the estimated receipts for the ensuing fiscal year contained in the Budget, on the basis of laws existing at the time the Budget is transmitted, plus the estimated amounts in the Treasury at the close of the fiscal year in progress, available for expenditure in the ensuing fiscal year, are less than the estimated expenditures for the ensuing fiscal year contained in the Budget, the President in the Budget shall make recommendations to Congress for new taxes, loans, or other appropriate action to meet the estimated deficiency.

(b) If the aggregate of such estimated receipts and such estimated amounts in the Treasury is greater than such estimated expenditures for the ensuing fiscal year, he shall make such recommendations as in his opinion the public interests require (31 U.S.C. 13).

[SEC. 203. (a) The President from time to time may transmit to Congress such proposed supplemental or deficiency appropriations as in his judgment (1) are necessary on account of laws enacted after the transmission of the Budget, or (2) are otherwise in the public interest. He shall accompany such proposals with a statement of the reasons therefor, including the reasons for their omission from the Budget.

[(b) Whenever such proposed supplemental or deficiency appropriations reach an aggregate which, if they had been contained in the Budget, would have required the President to make a recommendation under subsection (a) of section 202, he shall thereupon make such recommendation. (31 U.S.C. 14.)

[SEC. 204. (a) Except as otherwise provided in this Act, the contents, order, and arrangement of the proposed appropriations and the statements of expenditures and estimated expenditures contained in the Budget or transmitted under section 203, and the notes and other data submitted therewith, shall conform to requirements prescribed by the President.

[(b) The Budget, and statements furnished with any proposed supplemental or deficiency appropriations, shall be accompanied by information as to personal services and other objects of expenditure in the same manner and form as in the Budget for the fiscal year 1950: Provided, That this requirement may be waived or modified, either generally or in specific cases, by joint action of the committees of Congress having jurisdiction over appropriation: And provided further, That nothing in this Act shall be construed to limit the authority of committees of Congress to request and receive such information in such form as they may desire in consideration of and action upon budget estimates.] (31 U.S.C. 581.)

[SEC. 205. Whenever any basic change is made in the form of the Budget, the President, in addition to the Budget, shall transmit to Congress such explanatory notes and tables as may be necessary to show where the various items embraced

5 Amended by sec. 102(b), Public Law 784 (64 Stat. 832, 833), 81st Cong. Amended by sec. 102(c), Public Law 784 (64 Stat. 832, 833), 81st Cong.

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