The White House: Status Review of the Executive Residence (Testimony,
11/06/97, GAO/T-OGC/AIMD-98-12).

GAO discussed the status of its work on the number of overnight guests
and stays in the Executive Residence at the White House, focusing on:
(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.

GAO noted that: (1) its first two assignments in this area, relating to
audits of certain 1996 expenditures and a review of certain processes
and procedures relating to reimbursable expenditures, are proceeding on
schedule; (2) its third assignment relates to the number and costs of
overnight stays in the Executive Residence since January 1993; (3) GAO
requested access to all books, documents, papers, or other records
related to the number of overnight guests at the Executive Residence to
achieve its objective of counting and reporting the number of overnight
guests and stays; (4) in an October 23, 1997, letter, the Associate
Counsel to the President characterized GAO's request as one to gain
access to private and personal papers of the First Family, but expressed
a willingness to continue discussing the matter; (5) GAO is open to
reviewing other materials to determine the number and duration of
overnight guests and stays at the Executive Residence; (6) in the
October 1997 letter, the Associate Counsel argued that a privacy
interest protects the First Family's notes and correspondence, and
stated that GAO's statutory right of access encompasses agency records
and does not reach records of the First Family; (7) GAO believes that
disclosure of the information is solely in aid of the congressional
power to enact legislation, oversee the operation of government, and
appropriate funds under the Constitution, with the presumption of a
valid legislative purpose; (8) the Executive Residence is a government
facility staffed by federal employees and funded with appropriated tax
dollars; (9) this subcommittee considers budget requests by the
President for the operation and maintenance of the Executive Residence,
and 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; and (10) accordingly, for purposes of GAO's audit and
access authority, GAO believes the correspondence, and other written
materials documenting use of the Executive Residence, 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.

--------------------------- Indexing Terms -----------------------------

 REPORTNUM:  T-OGC/AIMD-98-12
     TITLE:  The White House: Status Review of the Executive Residence
      DATE:  11/06/97
   SUBJECT:  Personal property
             Residences
             Right of privacy
             Congressional oversight
             Congressional powers
             Congressional/executive relations
             Audit authority
             Executive powers
             Confidential communication
             Ethical conduct

             
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Cover
================================================================ COVER


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
Thursday
November 6, 1997

THE WHITE HOUSE - STATUS OF REVIEW
OF THE EXECUTIVE RESIDENCE

Statement of Robert P.  Murphy, General Counsel

GAO/T-OGC/AIMD-98-12

GAO/OGC/AIMD-98-12t



Abbreviations
=============================================================== ABBREV

  GAO -

============================================================ Chapter 0

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 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. 


   GAO REVIEW OF THE NUMBER OF
   OVERNIGHT GUESTS AND STAYS AT
   THE EXECUTIVE RESIDENCE
---------------------------------------------------------- Chapter 0:1

As you know, in connection with requests that we determine the
average cost of an overnight stay at the Executive Residence and
provide information on related overtime compensation for domestic
staff within the Executive Residence, the Subcommittee asked us to
determine the number of persons who were overnight guests in the
Executive Residence and the total number of overnight stays since
January 1993.  The White 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 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 WHITE
      HOUSE
-------------------------------------------------------- Chapter 0:1.1

On October 16, 1997, we wrote to the Deputy Counsel to the President
to 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 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
      INTEREST
-------------------------------------------------------- Chapter 0:1.2

The Associate Counsel argues that GAO is seeking access to the
"private 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 qualifiedï¿½any intrusion must be
weighed against the congressional, public, or other interest in
reviewing the private materials.  Id.  at 458ï¿½465 (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 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 informationï¿½how many people are staying
overnightï¿½for 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 staysï¿½not 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
-------------------------------------------------------- Chapter 0:1.3

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 previously stated, your request asked GAO to conduct
several assignments.  The firstï¿½an audit of five categories of
unvouchered expenditures of the President and the Vice Presidentï¿½is
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, ï¿½ 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. 

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, 557ï¿½8 (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. 


-------------------------------------------------------- Chapter 0:1.4

Mr.  Chairman, that concludes my statement.  I will be pleased to
answer questions you or other members of the Subcommittee may have. 


*** End of document. ***