B-213490, DECEMBER 6, 1983, 63 COMP.GEN. 98

B-213490: Dec 6, 1983

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PRIVACY AND SUNSHINE ACTS IT IS THE POLICY OF THE GENERAL ACCOUNTING OFFICE TO REFRAIN FROM COMMENTING ON MATTERS IN LITIGATION UNLESS THE COURT EXPRESSES AN INTEREST IN OUR OPINION. BECAUSE QUESTION IS CURRENTLY BEFORE THE U.S. IT WOULD BE INAPPROPRIATE FOR GAO TO COMMENT ON WHETHER NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK) IS SUBJECT TO THE GOVERNMENT IN THE SUNSHINE ACT. REDUCING FROM A MAJORITY TO A MINORITY THE NUMBER OF DIRECTORS ON AMTRAK'S BOARD THAT ARE APPOINTED BY THE PRESIDENT WITH THE ADVICE AND CONSENT OF THE SENATE. A MAJORITY OF WHOM ARE PRESIDENTIAL APPOINTEES. THIS AMENDMENT HAS AN OBVIOUS BEARING ON THE QUESTION OF WHETHER AMTRAK IS SUBJECT TO THE GOVERNMENT IN THE SUNSHINE ACT.

B-213490, DECEMBER 6, 1983, 63 COMP.GEN. 98

NATIONAL RAILROAD PASSENGER CORPORATION - APPLICABILITY OF FREEDOM OF INFORMATION, PRIVACY AND SUNSHINE ACTS IT IS THE POLICY OF THE GENERAL ACCOUNTING OFFICE TO REFRAIN FROM COMMENTING ON MATTERS IN LITIGATION UNLESS THE COURT EXPRESSES AN INTEREST IN OUR OPINION. THEREFORE, BECAUSE QUESTION IS CURRENTLY BEFORE THE U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, IT WOULD BE INAPPROPRIATE FOR GAO TO COMMENT ON WHETHER NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK) IS SUBJECT TO THE GOVERNMENT IN THE SUNSHINE ACT, 5 U.S.C. 552B. HOWEVER, SUBSEQUENT TO GAO DECISION AT 57 COMP.GEN. 733 (1978), THE OMNIBUS BUDGET RECONCILIATION ACT OF 1981 AMENDED THE RAIL PASSENGER SERVICE ACT, REDUCING FROM A MAJORITY TO A MINORITY THE NUMBER OF DIRECTORS ON AMTRAK'S BOARD THAT ARE APPOINTED BY THE PRESIDENT WITH THE ADVICE AND CONSENT OF THE SENATE. BECAUSE 5 U.S.C. 552(B) DEFINES AGENCIES COVERED BY THE ACT TO INCLUDE COLLEGIAL BODIES, A MAJORITY OF WHOM ARE PRESIDENTIAL APPOINTEES, THIS AMENDMENT HAS AN OBVIOUS BEARING ON THE QUESTION OF WHETHER AMTRAK IS SUBJECT TO THE GOVERNMENT IN THE SUNSHINE ACT.

TO THE HONORABLE WILLIAM V. ROTH, JR., UNITED STATES SENATE, DECEMBER 6, 1983:

THIS RESPONDS TO YOUR OCTOBER 5, 1983, LETTER TO OUR OFFICE REQUESTING OUR OPINION ON A MATTER BROUGHT TO YOUR ATTENTION BY MR. ALFRED E. EHM OF SAN ANTONIO, TEXAS. MR. EHM IS CONCERNED WITH THE EFFORTS OF THE NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK) TO EXEMPT ITSELF FROM THE PROVISIONS OF THE GOVERNMENT IN THE SUNSHINE ACT (SUNSHINE ACT), 5 U.S.C. 552B, ON LEGAL GROUNDS. HE HAS TAKEN AN APPEAL FROM THE DECISION OF THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA IN CIVIL ACTION NO. 83-1316, ALFRED E. EHM V. NATIONAL RAILROAD PASSENGER CORPORATION (EHM V. AMTRAK) IN WHICH THE COURT FOUND THAT AMTRAK IS NOT SUBJECT TO THE SUNSHINE ACT. MR. EHM BELIEVES THAT THE DISTRICT COURT DECISION IN EHM V. AMTRAK CONTRAVENES OUR DECISION OF 57 COMP.GEN. 773 (1978) AND CLEARLY EXPRESSED CONGRESSIONAL INTENT THAT AMTRAK BE SUBJECT TO THE SUNSHINE ACT.

IT IS OUR POLICY TO REFRAIN FROM COMMENTING ON MATTERS IN LITIGATION UNLESS SO REQUESTED BY THE COURT. SEE, E.G., 58 COMP.GEN. 282, 286 (1979). HENCE IT WOULD NOT BE APPROPRIATE FOR US TO EXPRESS ANY OPINION CONCERNING THE ISSUES IN THE CASE OF EHM V. AMTRAK, OR THE APPEAL, NO. 83-1852 (D.C. CIR., DOCKETED AUG. 12, 1983).

IT IS IMPORTANT TO NOTE, HOWEVER, THAT SUBSEQUENT TO OUR DECISION AT 57 COMP.GEN. 773 (1978), SECTION 1174 OF THE OMNIBUS BUDGET RECONCILIATION ACT OF 1981, PUB. L. 97-35, 95 STAT. 357, 689, AMENDED THE RAIL PASSENGER SERVICE ACT, 45 U.S.C. 543, REDUCING THE NUMBER OF DIRECTORS ON AMTRAK'S BOARD APPOINTED BY THE PRESIDENT WITH THE ADVICE AND CONSENT OF THE SENATE TO LESS THAN A MAJORITY. THE SUNSHINE ACT AT 5 U.S.C. 552BA)(1) STATES:

(A) FOR PURPOSES OF THIS SECTION--

(1) THE TERM "AGENCY" MEANS ANY AGENCY, AS DEFINED IN SECTION 552(E) OF THIS TITLE, HEADED BY A COLLEGIAL BODY COMPOSED OF TWO OR MORE INDIVIDUAL MEMBERS, A MAJORITY OF WHOM ARE APPOINTED TO SUCH POSITION BY THE PRESIDENT WITH THE ADVICE AND CONSENT OF THE SENATE AND ANY SUBDIVISION THEREOF AUTHORIZED TO ACT ON BEHALF OF THE AGENCY;

THE 1981 AMENDMENT HAS AN OBVIOUS BEARING ON THE QUESTION OF WHETHER AMTRAK IS SUBJECT TO THE SUNSHINE ACT. WE HOPE THAT THIS INFORMATION WILL ASSIST YOU.