B-205151, MARCH 1, 1982, 61 COMP.GEN. 285

B-205151: Mar 1, 1982

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ETC. - FEDERAL ELECTION COMMISSION FEDERAL ELECTION COMMISSION (FEC) PROPOSAL TO HAVE MEMBERS OF PUBLIC WHO REQUEST MICROFILM COPIES OF REPORTS AND STATEMENTS FILED WITH FEC PAY FIRMS WHICH MAKE COPIES IS NOT LEGALLY OBJECTIONABLE. COMMISSION) SEEKS OUR APPROVAL OF A PROPOSED CHANGE IN THE PROCEDURE BY WHICH MEMBERS OF THE PUBLIC WHO REQUEST COPIES OF CANDIDATE AND COMMITTEE REPORTS ARE BILLED FOR THE EXPENSES OF DUPLICATION. WE HAVE NO LEGAL OBJECTION TO THE PROPOSED PROCEDURE. RECOMMEND THAT THE COMMISSION CONSIDER OTHER SYSTEMS WHICH WOULD MINIMIZE THE ADMINISTRATIVE BURDEN WHICH IS PLACED ON THE FEC. THE FEC CHARGES THE REQUESTER A SUM EQUAL TO THE AMOUNT WHICH THE COMMISSION ITSELF IS BILLED.

B-205151, MARCH 1, 1982, 61 COMP.GEN. 285

FEES - SERVICES TO THE PUBLIC - CHARGES - COLLECTION AND DISPOSITION - AGENCY RECORD DUPLICATION, ETC. - FEDERAL ELECTION COMMISSION FEDERAL ELECTION COMMISSION (FEC) PROPOSAL TO HAVE MEMBERS OF PUBLIC WHO REQUEST MICROFILM COPIES OF REPORTS AND STATEMENTS FILED WITH FEC PAY FIRMS WHICH MAKE COPIES IS NOT LEGALLY OBJECTIONABLE. PROCEDURE WHEREBY FEC SPECIFIES SCHEDULE OF FEES IN CONTRACT WITH DUPLICATING FIRM, RATHER THAN REVIEWING EACH BILL INDIVIDUALLY, WOULD ALSO BE ACCEPTABLE.

MATTER OF: FEDERAL ELECTION COMMISSION - SALES OF MICROFILM COPIES OF CANDIDATE AND COMMITTEE REPORTS, MARCH 1, 1982:

THE CHAIRMAN OF THE FEDERAL ELECTION COMMISSION (FEC; COMMISSION) SEEKS OUR APPROVAL OF A PROPOSED CHANGE IN THE PROCEDURE BY WHICH MEMBERS OF THE PUBLIC WHO REQUEST COPIES OF CANDIDATE AND COMMITTEE REPORTS ARE BILLED FOR THE EXPENSES OF DUPLICATION. WE HAVE NO LEGAL OBJECTION TO THE PROPOSED PROCEDURE, BUT RECOMMEND THAT THE COMMISSION CONSIDER OTHER SYSTEMS WHICH WOULD MINIMIZE THE ADMINISTRATIVE BURDEN WHICH IS PLACED ON THE FEC.

THE FEDERAL ELECTION CAMPAIGN ACT OF 1971 (FECA), AS AMENDED, PROVIDES IN RELEVANT PART THAT:

THE COMMISSION SHALL * * * WITHIN 48 HOURS AFTER THE TIME OF THE RECEIPT BY THE COMMISSION OF REPORTS AND STATEMENTS FILED WITH IT, MAKE THEM AVAILABLE FOR PUBLIC INSPECTION, AND COPYING, AT THE EXPENSE OF THE PERSON REQUESTING SUCH COPYING * * * . 2 U.S.C. 438(A)(4).

THE CHAIRMAN INDICATES THAT THE FEC CURRENTLY RESPONDS TO REQUESTS FOR MICROFILM COPIES OF REPORTS BY SENDING AN UNORIGINAL REEL OF THE MICROFILM TO A PRIVATE FIRM FOR DUPLICATION. THE FEC CHARGES THE REQUESTER A SUM EQUAL TO THE AMOUNT WHICH THE COMMISSION ITSELF IS BILLED. THE PAYMENT FROM THE REQUESTER IS FORWARDED TO TREASURY, WHILE THE AMOUNT DUE THE PRIVATE FIRM IS PAID FROM THE FEC'S APPROPRIATION. ACCORDING TO THE CHAIRMAN, "THE MAIN PROBLEM WITH THIS CURRENT PRACTICE IS THAT WHENEVER COPIES OF FECA (FEDERAL ELECTION CAMPAIGN ACT OF 1971, AS AMENDED) REPORTS ARE DUPLICATED, THE COMMISSION MUST DEDUCT SUCH COST FROM ITS BUDGET WITHOUT THE POSSIBILITY OF REIMBURSEMENT."

UNDER THE PROPOSED PROCEDURE, THE COMMISSION WOULD CONTINUE TO SEND UNORIGINAL REELS OF MICROFILM TO PRIVATE FIRMS FOR DUPLICATION. THE BILLING PROCEDURE WOULD BE AMENDED, HOWEVER. AT THE TIME AT WHICH AN ORDER IS PLACED, THE COMMISSION WOULD INDICATE THAT THE PARTICULAR ITEM BE BILLED TO THE REQUESTER. THE MICROFILM WOULD BE RETURNED TO THE COMMISSION, AND THE BILL EXAMINED TO ASSURE THAT THE REQUESTER WAS NOT OVERCHARGED. UPON RECEIPT OF A CHECK MADE OUT TO THE PRIVATE FIRM, THE COMMISSION WOULD TURN THE COPY OVER TO THE REQUESTER. AS A FINAL STEP, THE CHECK WOULD BE FORWARDED TO THE FIRM.

THE PROPOSED REVISION WOULD ACCOMPLISH THE END DESIRED BY FEC. BECAUSE PAYMENT FOR REPORT COPIES WOULD BE MADE BY THE REQUESTER TO THE CONTRACTOR, IT WOULD NOT BE NECESSARY FOR FEC TO CHARGE ITS APPROPRIATION. NOR WOULD REQUESTER PAYMENTS HAVE TO BE DEPOSITED IN THE TREASURY SINCE THE PAYMENTS WOULD NOT BE "FOR THE USE OF THE UNITED STATES" PURSUANT TO 31 U.S.C. 484. WE THEREFORE HAVE NO LEGAL OBJECTION TO THE PROPOSAL.

WE NOTE, HOWEVER, THAT THE TASK OF HANDLING, AND THUS BEING ACCOUNTABLE FOR, REQUESTER PAYMENTS MIGHT PROVE TO BE ADMINISTRATIVELY BURDENSOME. OUR OPINION, IT IS NOT NECESSARY FOR FEC TO MONITOR THE PRICE CHARGED FOR EACH TRANSACTION SO LONG AS THE PRICE IS REGULATED BY CONTRACT. THEREFORE, THERE IS NO REASON WHY REQUESTER PAYMENTS MAY NOT BE MADE DIRECTLY TO FEC'S CONTRACTOR AND REPORT COPIES TRANSMITTED DIRECTLY TO REQUESTERS BY THE CONTRACTOR.

WE HAVE, FOR EXAMPLE, APPROVED AT LEAST ONE OTHER SYSTEM WHICH WAS PROPOSED IN ORDER TO ACCOMPLISH ESSENTIALLY THE SAME GOALS AS THE FEC'S PROPOSAL. IN B-166506, OCTOBER 20, 1975, THE ENVIRONMENTAL PROTECTION AGENCY (EPA) REQUESTED OUR VIEWS AS TO THE PROPRIETY OF A PROCEDURE SIMILAR TO THE ONE PROPOSED BY THE FEC, THE SIGNIFICANT DIFFERENCE BETWEEN THE TWO BEING THAT EPA DID NOT PERFORM THE ADMINISTRATIVE SERVICES WHICH THE FEC PROPOSES TO FURNISH.

ACCORDING TO THE EPA SUBMISSION, THE AGENCY HAD CONTRACTED WITH A NUMBER OF PRIVATE FIRMS FOR THE PROCESSING, STORAGE, AND RETRIEVAL OF VARIOUS TYPES OF DATA. FOR EXAMPLE, ONE CONTRACTOR DEVELOPED AND PRINTED FILM, AND STORED THE NEGATIVES SO THAT CUSTOM PRINTING MIGHT BE ACCOMPLISHED AS DIRECTED BY EPA. EPA ADVISED US THAT THIS INFORMATION WAS AVAILABLE UNDER THE FREEDOM OF INFORMATION ACT, AND THAT IT INCURRED CONSIDERABLE EXPENSE IN SATISFYING REQUESTS FROM MEMBERS OF THE PUBLIC. THESE EXPENSES WERE PAID WITH FUNDS APPROPRIATED TO THE AGENCY, WHILE ANY SUMS COLLECTED FROM REQUESTERS WERE DEPOSITED IN THE TREASURY AS MISCELLANEOUS RECEIPTS PURSUANT TO 31 U.S.C. 484.

EPA THUS SOUGHT OUR APPROVAL OF A SYSTEM WHEREBY IT WOULD ADVISE REQUESTING PARTIES TO DEAL DIRECTLY WITH THE PRIVATE COMPANY WHICH PROVIDED THE AGENCY WITH ITS INFORMATION-HANDLING SERVICES. EPA ARGUED THAT WHEN A CONTRACTOR FILLED A REQUEST, THE UNITED STATES WAS NOT PROVIDING ANY SERVICES, AND ACCORDINGLY WAS NOT ENTITLED TO CHARGE ANY FEES WHEN "THE ENTIRE TRANSACTION OCCURRED) SOLELY BETWEEN THE REQUESTER AND THE FIRM HOLDING THE GOVERNMENT CONTRACT."

WE HELD THAT SO LONG AS THE PROPOSED PROCEDURES WERE NOT USED TO DELAY OR DENY ACCESS TO INFORMATION OR OTHERWISE CIRCUMVENT THE INTENT OR SPECIFIC PROVISIONS OF THE FREEDOM OF INFORMATION ACT, 5 U.S.C. 552(A)(4), OR THE USER CHARGE STATUTE, 31 U.S.C. 483A, WE HAD NO OBJECTION TO THE EPA PROPOSAL. WE NOTED THAT ALTHOUGH THE FOIA PROVIDED FOR THE PROMULGATION BY EACH AGENCY OF REGULATIONS SPECIFYING A UNIFORM SCHEDULE OF FEES FOR THE RECOVERY OF THE DIRECT COSTS OF DOCUMENT SEARCH AND DUPLICATION, NEITHER THAT ACT NOR ANY OTHER STATUTE AUTHORIZED THE UNITED STATES TO RECOVER ANY OF THE COSTS ASSOCIATED WITH DEVELOPING THE INFORMATION CONTAINED IN THE REQUESTED DOCUMENTS. WE THUS REQUIRED THAT FPA ASSURE, BY INCLUDING A PROVISION TO THIS EFFECT IN ITS AGREEMENT WITH ITS CONTRACTORS, THAT THE FEES CHARGED REQUESTERS NOT EXCEED THE FEES WHICH EPA ITSELF WOULD BE AUTHORIZED TO CHARGE IF THE AGENCY PROVIDED THE SERVICES DIRECTLY. WE FURTHER CONCLUDED THAT THE CONTRACTORS FILLING REQUESTS FOR INFORMATION WERE ACTING INDEPENDENTLY, AND NOT AS AGENTS OF EPA, AND THAT THEY WERE THEREFORE ENTITLED TO RETAIN ANY FEES WHICH THEY COLLECTED SINCE THESE WERE NOT "MONEYS RECEIVED * * * FOR THE USE OF THE UNITED STATES" PURSUANT TO 31 U.S.C. 484.

THUS, WE WOULD HAVE NO OBJECTION TO A PROCEDURE, FOR EXAMPLE, IN WHICH THE COMMISSION WOULD CONFINE ITSELF TO ADVISING PUBLIC REQUESTERS THAT THEY MAY DEAL DIRECTLY WITH THE PRIVATE FIRMS PROVIDING THE DUPLICATION. LIKE THE EPA, OF COURSE, THE FEC WOULD HAVE TO ASSURE, IN ITS AGREEMENT WITH ITS CONTRACTORS, THAT THE FEES CHARGED MEMBERS OF THE PUBLIC FOR COPIES NOT EXCEED THE FEES WHICH THE FEC WOULD HAVE BEEN AUTHORIZED TO CHARGE HAD IT PROCESSED THE REQUEST ITSELF.