B-154167, AUGUST 5, 1964, 44 COMP. GEN. 56

B-154167, AUGUST 5, 1964, 44 COMP. GEN. 56

DEPARTMENTS AND ESTABLISHMENTS - SERVICES BETWEEN - INFORMATION - FURNISHING STATUTORY DUTY WHEN FURNISHING INFORMATION BETWEEN AGENCIES IS A STATUTORY DUTY, THE COST OF THE OPERATION IS A PROPER CHARGE AGAINST THE APPROPRIATION OF THE FURNISHING AGENCY, AND 45 U.S.C. 228E (K) (3) AUTHORIZING THE RAILROAD RETIREMENT BOARD AND THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE TO SUPPLY EACH OTHER WITH CERTIFIED REPORTS OF SPECIFIED RECORDS, THE SOCIAL SECURITY ADMINISTRATION IS REQUIRED TO FURNISH THE BOARD WITH REQUESTED INFORMATION FROM THE NATIONAL EMPLOYEE INDEX FILE, AND WITHOUT CHARGE, IN VIEW OF THE FACT THE STATUTORY PROVISION IS SILENT AS TO REIMBURSEMENT, AND NOTWITHSTANDING 42 U.S.C. 1306 GRANTS THE SECRETARY DISCRETIONARY AUTHORITY TO FURNISH INFORMATION AND REQUEST PAYMENT FOR SUCH SERVICE, THE GENERAL PROVISION CONTAINED IN 42 U.S.C. 1306 NOT SUPERSEDING THE SPECIFIC PROVISION IN 45 U.S.C. 228E (K) (3), PLACING A MANDATORY OBLIGATION UPON THE TWO AGENCIES TO FURNISH INFORMATIONAL SERVICES TO EACH OTHER.

COMPTROLLER CAMPBELL TO THE CHAIRMAN, RAILROAD RETIREMENT BOARD, AUGUST 5, 1964:

YOUR LETTER OF MAY 11, 1964, WHICH PRESENTED FOR OUR CONSIDERATION A QUESTION AS TO THE PROPRIETY OF A CHARGE AGAINST THE BOARD PROPOSED TO BE MADE BY THE SOCIAL SECURITY ADMINISTRATION FOR CERTAIN INFORMATION REQUESTED BY THE BOARD, HAS BEEN GIVEN CAREFUL CONSIDERATION. WE HAVE ALSO CAREFULLY CONSIDERED THE VIEWS OF THE SOCIAL SECURITY ADMINISTRATION ON THE QUESTION AS EXPRESSED IN ITS LETTER AND MEMORANDUM DATED JUNE 9, 1964, AND THE FURTHER EXPRESSION OF YOUR VIEWS CONTAINED IN YOUR LETTER OF JUNE 18, 1964.

YOUR LETTER OF MAY 11, 1964, INDICATES THAT IN ORDER TO PROPERLY "POLICE" THE PAYMENTS OF BENEFITS BY YOUR BOARD, YOU HAVE DETERMINED THAT IT IS NECESSARY TO OBTAIN CERTAIN INFORMATION FROM THE NATIONAL EMPLOYEE INDEX FILE MAINTAINED BY THE SOCIAL SECURITY ADMINISTRATION AND HAVE REQUESTED THAT ADMINISTRATION TO FURNISH SUCH INFORMATION. THE SOCIAL SECURITY ADMINISTRATION HAS AGREED TO FURNISH THE REQUESTED INFORMATION, BUT HAS INSISTED THAT IT IS ENTITLED TO PAYMENT THEREFOR. THE BOARD MAINTAINS THAT THE INFORMATION MUST BE FURNISHED WITHOUT CHARGE AND THE MATTER WAS SUBMITTED TO OUR OFFICE FOR DETERMINATION.

THE BOARD RELIES PRINCIPALLY UPON THE PROVISIONS OF SECTION 5 (K) (3) OF THE RAILROAD RETIREMENT ACT OF 1937, AS ADDED BY SECTION 213 OF THE ACT OF JULY 31, 1946, CH. 709, 60 STAT. 729, AS AMENDED, 45 U.S.C. 228E (K) (3), WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

THE BOARD AND THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE SHALL, UPON REQUEST, SUPPLY EACH OTHER WITH CERTIFIED REPORTS OF RECORDS OF COMPENSATION OR WAGES AND PERIODS OF SERVICE, OF DETERMINATIONS UNDER SECTION 228C (E) OF THIS TITLE, OR SECTION 416 (I) OF TITLE 42, OF PERIODS OF DISABILITY WITHIN THE MEANING OF SUCH SECTION 416 (I) OF TITLE 42, AND OF OTHER RECORDS IN THEIR POSSESSION OR WHICH THEY MAY SECURE, PERTINENT TO THE ADMINISTRATION OF THIS SECTION, SECTION 228C (E) OF THIS TITLE, OR SUBCHAPTER II OF CHAPTER 7 OF TITLE 42 AS AFFECTED BY PARAGRAPH (1) OF THIS SUBSECTION. * * *

THE ADMINISTRATION TAKES THE POSITION THAT UNDER SECTION 1106 OF THE SOCIAL SECURITY ACT, AS AMENDED BY SECTION 701 OF THE SOCIAL SECURITY AMENDMENTS OF 1958, APPROVED AUGUST 28, 1958, PUBLIC LAW 85 840, 72 STAT. 1055, 42 U.S.C. 1306, AND ITS REGULATIONS PROMULGATED THEREUNDER, IT MAY PROPERLY CHARGE THE BOARD FOR FURNISHING THE REQUESTED INFORMATION. THE CITED PROVISION READS IN PERTINENT PART AS FOLLOWS:

(A) NO DISCLOSURE OF * * * ANY INFORMATION * * * SHALL BE MADE EXCEPT AS THE SECRETARY * * * MAY BY REGULATIONS PRESCRIBE. * * *

(B) REQUESTS FOR INFORMATION, DISCLOSURE OF WHICH IS AUTHORIZED BY REGULATIONS PRESCRIBED PURSUANT TO SUBSECTION (A) OF THIS SECTION, AND REQUESTS FOR SERVICES, MAY, SUBJECT TO SUCH LIMITATIONS AS MAY BE PRESCRIBED BY THE SECRETARY * * * BE COMPLIED WITH IF THE AGENCY, PERSON, OR ORGANIZATION MAKING THE REQUEST AGREES TO PAY FOR THE INFORMATION OR SERVICES REQUESTED IN SUCH AMOUNT, IF ANY (NOT EXCEEDING THE COST OF FURNISHING THE INFORMATION OR SERVICES), AS MAY BE DETERMINED BY THE SECRETARY * * * . PAYMENTS FOR INFORMATION OR SERVICES FURNISHED PURSUANT TO THIS SECTION SHALL BE MADE * * * AS MAY BE REQUESTED BY THE SECRETARY * * * AND SHALL BE DEPOSITED IN THE TREASURY AS A SPECIAL DEPOSIT TO BE USED TO REIMBURSE THE APPROPRIATIONS * * * FOR THE UNIT OR UNITS OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE * * * WHICH FURNISHED THE INFORMATION OR SERVICES.

THE QUOTED PROVISION OF THE RAILROAD RETIREMENT ACT IS MANDATORY AND REQUIRES THE BOARD AND THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE TO SUPPLY EACH OTHER, UPON REQUEST, CERTAIN INFORMATION WHICH INCLUDES THE IDENTICAL INFORMATION HERE IN QUESTION. CONVERSELY, THE QUOTED PROVISION OF THE SOCIAL SECURITY ACT GRANTS THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE DISCRETIONARY AUTHORITY TO FURNISH OR WITHHOLD INFORMATION, AS HE SEES FIT, TO AN "AGENCY, PERSON OR ORGANIZATION" WHICH REQUESTS IT AND EMPOWERS THE SECRETARY TO WITHHOLD INFORMATION, WHICH OTHERWISE MAY BE FURNISHED UNDER HIS REGULATIONS, IF THE "AGENCY, PERSON, OR ORGANIZATION" REQUESTING IT REFUSES TO PAY THEREFOR THE AMOUNT DETERMINED BY THE SECRETARY TO BE PROPER. THERE IS NOTHING IN THE LATTER PROVISION TO INDICATE THAT IT WAS INTENDED TO SUPERSEDE OR IN ANY WAY MODIFY THE MANDATORY REQUIREMENT OF 45 U.S.C. 228E (K) (3) THAT THE RAILROAD RETIREMENT BOARD AND THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE FURNISH EACH OTHER THE INFORMATION COVERED THEREBY. MOREOVER, IT IS NOT REASONABLE TO ASSUME THAT THE CONGRESS WOULD BY MERE IMPLICATION AND WITHOUT REFERENCE TO THE MANDATORY STATUTE SO ALTER A MANDATORY RECIPROCAL DUTY TO FURNISH INFORMATION AS TO ALLOW ONE OF THE BOUND PARTIES TO FURNISH OR WITHHOLD SUCH INFORMATION AT HIS DISCRETION. FURTHERMORE, IT SEEMS APPARENT THAT 45 U.S.C. 228E (K) (3) IS SPECIFIC, IN THAT IT APPLIES SPECIFICALLY TO REQUESTS BETWEEN THE TWO AGENCIES HERE INVOLVED FOR THE EXACT TYPE OF INFORMATION UNDER CONSIDERATION, WHEREAS 42 U.S.C. 1306 IS GENERAL IN THAT IT CONTEMPLATES REQUESTS FOR VARIED TYPES OF INFORMATION FROM VARIOUS SOURCES WHICH DO NOT OTHERWISE HAVE A STATUTORY RIGHT THERETO. THE PAYMENT REQUIREMENT OF THE LATTER SECTION IS BY ITS TERMS APPLICABLE ONLY TO "REQUESTS FOR INFORMATION, DISCLOSURE OF WHICH IS AUTHORIZED" BY REGULATIONS ISSUED PURSUANT THERETO, AND NOT TO INFORMATION REQUIRED TO BE FURNISHED BY A SEPARATE AND DISTINCT STATUTE.

HENCE, THE INFORMATION HERE IN QUESTION MUST BE FURNISHED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5 (K) (3) OF THE RAILROAD RETIREMENT ACT, 45 U.S.C. 228E (K) (3), RATHER THAN SECTION 1106 OF THE SOCIAL SECURITY ACT, 42 U.S.C. 1306.

THE CITED RAILROAD RETIREMENT ACT PROVISION IS SILENT AS TO WHETHER THE FURNISHING OF INFORMATION AS REQUIRED THEREBY IS TO BE ON A REIMBURSABLE OR NONREIMBURSABLE BASIS. LIKEWISE, NOTHING HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF THE PROVISION WHICH WOULD INDICATE THE INTENT OF THE CONGRESS IN THAT REGARD. HOWEVER, SINCE THE FURNISHING OF INFORMATION AS REQUIRED BY THE PROVISION IS RECIPROCAL, WITH EACH AGENCY BEING REQUIRED TO FURNISH THE OTHER INFORMATION CONTAINED IN ITS RECORDS, WE DO NOT BELIEVE THAT THE CONGRESS CONTEMPLATED THAT EITHER AGENCY WOULD BE REQUIRED TO PAY THEREFOR. IN THIS CONNECTION THE SOCIAL SECURITY ADMINISTRATION CONTENDS THAT IT SHOULD NOT BE REQUIRED TO DEFRAY THE COSTS OF ADMINISTERING THE RAILROAD RETIREMENT ACT AND REFERS TO RULINGS BY THE COMPTROLLER GENERAL TO THE EFFECT THAT A FEDERAL AGENCY MAY EXPEND MONEYS APPROPRIATED TO IT BY THE CONGRESS ONLY FOR THE PURPOSES FOR WHICH THE CONGRESS HAS AUTHORIZED IT TO SPEND THE FUNDS. IT IS OUR VIEW, AS INDICATED ABOVE, THAT 45 U.S.C. 228E (K) (3) PLACES A MANDATORY OBLIGATION UPON EACH OF THE TWO NAMED AGENCIES TO FURNISH THE OTHER, UPON REQUEST, THE INFORMATION COVERED THEREBY. HENCE THE FURNISHING OF SUCH INFORMATION IS A STATUTORY DUTY OF EACH AGENCY AND THE COST THEREOF IS A PROPER CHARGE AGAINST THE APPROPRIATION OF THE FURNISHING AGENCY. THE OPERATION OF FURNISHING IN SUCH CASES IS A LEGALLY AUTHORIZED AND PROPER OPERATION OF THE AGENCY SO FURNISHING, AND CONSTITUTES ONE OF THE STATUTORY FUNCTIONS OF THE FURNISHING AGENCY.

IN VIEW OF THE ABOVE, I AM CONSTRAINED TO HOLD THAT THE SOCIAL SECURITY ADMINISTRATION IS REQUIRED BY 45 U.S.C. 228E (K) (3) TO FURNISH THE BOARD THE INFORMATION HERE IN QUESTION AND THAT, UNDER EXISTING LAW, WE WOULD NOT BE JUSTIFIED IN REQUIRING THE BOARD TO REIMBURSE THE ADMINISTRATION FOR THE COST THEREOF.

A COPY OF THIS DECISION IS BEING FURNISHED TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE.