              National Archives Access to Taxpayer Information
N either the S ecretary o f the Treasury nor th e President can perm it the N ational A rchives and Records
    A dm in istratio n to inspect tax returns o r return inform ation pursuant to 44 U.S.C. § 2906(a)(2) for
    p u rp o ses o f appraising the records.

                                                                                                           May 28, 1997

          M   em orandum     O   p i n i o n fo r t h e   A c t in g A s s o c ia t e A t t o r n e y G e n e r a l


   You have asked whether we concur in the conclusion of the Civil and Tax
Divisions that neither “ [t]he Secretary of the Treasury [n]or the President can[]
permit [the National Archives and Records Administration (“ NARA” )] to inspect
[tax] returns or return information pursuant to 44 U.S.C. § 2906(a)(2) for purposes
of appraising the records.” 1 For the reasons set forth below, we do concur.
   Section 2906(a)(2) provides that “ [r]ecords, the use of which is restricted by
law or for reasons of national security or the public interest, shall be inspected
[by NARA], in accordance with regulations promulgated by the Administrator [of
General Services] and the Archivist, subject to the approval of the head of the
agency concerned or of the President.” Under the Internal Revenue Code, title
26 o f the U.S. Code, tax returns and tax return information “ shall be confidential”
and may not be disclosed by the Internal Revenue Service (“ IRS” ) “ except as
authorized by [title 26].” 26 U.S.C. § 6103(a) (Supp. II 1996). Because taxpayer
information is thus “ restricted by law ,” the question presented turns on whether
the Secretary o f the Treasury or the President is authorized by § 2906(a)(2) to
approve NARA access to such information, notwithstanding §6103’s prohibition
on disclosure except where authorized by the Internal Revenue Code. There are
both narrow and broad bases for concluding that they lack such authority.
   1.    The narrow basis relies on the limited scope of § 2906(a)(2) and therefore
does not even involve consideration of the impact of § 6103. Section 2906(a)(2)
is not a freestanding provision applicable to all activities undertaken by NARA
under title 44. Rather, it is contained within § 2906, which is limited to inspections
of agency records that NARA undertakes under chapter 29 of that title. These
inspections are not for NARA’s ow n appraisal purposes but rather are for the
purpose of providing agencies with recommendations on their records management
practices. The first provision of § 2906 states as follows:

          In carrying out their respective duties and responsibilities under this
          chapter , the Administrator o f General Services and the Archivist
          (or the designee of either) m ay inspect the records or the records

   1Memorandum for the Acting Associate Attorney General, from Loretta C Argrett, Assistant Attorney General,
Tax Division, and Frank W Hunger, Assistant Attorney General, Civil Division, Re- Tax Analysis, et al. v. IRS,
et al. No. 1 97CV260 JLG (D.D C.) at 1 (Mar 28, 1997) (attaching separate memoranda from each component
providing rationale for this conclusion).

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                      National Archives Access to Taxpayer Information


        management practices and programs of any Federal agency solely
       fo r the purpose o f rendering recommendations f o r the improvement
       o f records management practices and programs. Officers and
       employees of such agencies shall cooperate fully in such inspec­
       tions, subject to the provisions o f paragraphs (2) and (3) of this
       subsection.

44 U.S.C. § 2906(a)(1) (1994) (emphasis added).
  The underscored language indicates both that the NARA inspection authority
under § 2906(a)(1) is limited to inspections o f agency-records under chapter 29
and that it is further limited by the special rule on statutorily restricted records
set forth in § 2906(a)(2). NARA’s mission under chapter 29 is to “ provide guid­
ance and assistance to Federal agencies with respect to ensuring adequate and
proper documentation of the policies and transactions of the Federal Government
and ensuring proper records disposition.” Id. § 2904(a) (1994). To assist NARA
in performing this function, § 2906(a)(1) authorizes NARA to “ inspect” agency
records “ solely for the purpose of rendering recommendations for the improve­
ment of records management practices and programs.” Section 2906(a)(2) is a
limitation on the § 2906(a)(1) authority, providing that where such inspections are
of statutorily restricted information, they may take place only with the approval
of the head of the agency concerned or the President.
  The NARA appraisal function under chapter 33 is separate from its chapter
29 function of inspecting agency records in order to advise the agencies on their
records management practices. Appraisal is the function that NARA undertakes
in order to make its own determinations (in contrast to making recommendations
to agencies) on whether agency records may be destroyed. Under chapter 33,
NARA

       examine[s] the lists and schedules [of records agencies propose for
       destruction] submitted to [NARA] under section 3303 of this title.
       If [NARA] determines that any of the records listed in a list or
       schedule submitted to [it] do not, or will not after the lapse of the
       period specified, have sufficient administrative, legal, research, or
       other value to warrant their continued preservation by the Govern­
       ment, [it] may . . . (1) notify the agency to that effect; and (2)
       empower the agency to dispose of those records . . . .

44 U.S.C. §3303a(a) (1994) (emphasis added). Underscoring the decisionmaking
authority NARA has under chapter 33, the statute further provides that these
“ [authorizations granted [by NARA to agencies] shall be mandatory.” Id.
§ 3303a(b).
   Even if § 2906 did not by its terms limit its application to chapter 29, we believe
that it would be difficult to argue that the § 2906(a)(2) authority is available with

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                            Opinions o f the Office o f Legal Counsel in Volume 21


respect to the chapter 33 authority. W e have not identified any provision in chapter
33 — or anywhere else in title 44 — that links the chapter 29 inspection authority
with the chapter 33 appraisal authority. For example, the provision granting
NARA its appraisal authority is written in terms of “ examin[ing] lists and sched­
ules,” not inspecting the records identified on these lists and schedules. See id.
§ 3303a(a).
   We recognize, however, that NARA takes the view that its authorities under
chapters 29 and 33 are intertwined. See Letter for John Dwyer, Acting Associate
Attorney General, from Elizabeth A. Pugh, General Counsel, NARA, Re:
Appraisal o f IRS records containing tax return and return information at 1 (Mar.
21, 1997) ( “ NARA’s paramount concern is to fulfill its statutory obligation to
appraise and approve the disposition of IRS’s records. 44 U.S.C. §§2906; 3303,
3303a.” ). Although it may be that there is sufficient past practice by NARA to
constitute an administrative construction of title 44 to this effect, the memoranda
that have been submitted to you do not address this point. Nonetheless, we have
proceeded to assume, for the purpose of the following discussion, that the
§ 2906(a)(2) authority is available for appraisal purposes, so that we could consider
the broader question of the interaction of that provision with § 6103 of the Internal
Revenue Code.
  2. Our broader basis for concurring in the conclusion reached by the Civil and
Tax Divisions is the longstanding position of this Office that the general access
provisions of title 44 do not override the subsequently enacted, more specific
prohibition of §6103.2 W e have written several memoranda on the relationship
between NARA’s access rights under title 44 and the subsequently enacted disclo­
sure prohibition of §6103.3 We adhere to our established position, which was
summarized in the most recent of these memoranda:

            We have thoroughly reexamined [the first two] memoranda, and
          we concur in their conclusion that the statutory provisions generally

    2Section 6103 was adopted in 1976, as part o f the Tax Reform Act of 1976, Pub L. No 94-455, § 1202, 90
Stat 1520, 1667. The authority to inspect statutonly restricted records contained in § 2906(a)(2) was first provided
in 1950, by the Federal Records Act of 1950, Pub L No 754, ch 849, § 505(a), 64 Stat 578, 585. As first enacted,
the inspection could take place only with the approval of the head of the agency possessing the records. Id The
Federal Records Management Amendments of 1976 added the President as an alternative source of approval Pub
L No 94-575, § 2(a)(3), 90 Stat. 2723, 2725 This was done in order to provide “ for a clearly defined process
in those instances where the [Archivist] and the agency head cannot agree on inspection procedures ” S. Rep No
94-1326, at 10 (1976), reprinted in 1976 U S C C A N 6150, 6158 Thus, the addition of the President did not
expand the substantive reach of § 2906(a)(2) It merely gave the approval authority under that provision to an addi­
tional person, which did not amount to a significant change because the President already possessed the authority
to direct the Archivist and agency heads in their application of this provision, based on his constitutional authority
to supervise and guide executive branch officials
   3 See Transfer o f Watergate Special Prosecution Force Records to the National Archives— Income Tax Informa­
tion— 26 US C. §6I03(a), I Op O L C 216 (1977), Memorandum for Alice Daniel, Assistant Attorney General,
Civil Division, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re. Applicability
o f the Non-Disclosure Provisions o f the Tax Reform Act (Nov 7, 1980), Memorandum for Richard K Willard,
Assistant Attorney General, Civil Division, from Samuel A. Alito, J r , Deputy Assistant Attorney General, Office
of Legal Counsel, R e• Authority o f the FBI to Transfer Restricted Records to the National Archives and Records
Administration (Feb 27, 1986) (“ Alito Memorandum” ).

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                     National Archives Access to Taxpayer Information


       empowering the Archivist to obtain . . . records that are subject
       to statutory restrictions . . . do not reach tax returns and tax return
       information, which are strictly protected by the Tax Reform Act
       of 1976, 26 U.S.C. 6103. The Tax Reform Act expressly and
       unequivocally prohibited the disclosure of tax returns or tax return
       information except as authorized by that Act (26 U.S.C. 6103(a)). .
       The legislative history of the Act makes clear that these provisions
       expressed a strong congressional intent to maintain very strict pri­
       vacy for such information. . . . Because neither the statutory lan­
       guage nor legislative history of the Act provides any indication that
       Congress intended to allow the Archives to obtain such information
       . . ., we continue to believe that this specific, subsequent enactment
       must take precedence over the previously enacted and more general
       terms of the provisions relating to the Archivist. We must assume
       that the members of Congress who voted for the Tax Reform Act
       understood it to mean what the plain language of section 6103(a)
       says, viz. , that tax returns and tax return information would be dis­
       closed only under the carefully prescribed conditions set out in the
       Act. We think it is unrealistic to assume that Congress intended
       (but neglected to mention) that such materials would also be subject
       to disclosure under the Archives provisions.

Alito Memorandum at 1-2 (citations and footnote omitted).
   We are aware that there is dictum in a D.C. Circuit decision that suggests that
the § 2906(a)(2) authority may override §6103 because the contrary view “ would
effectively nullify” the provision. See American Friends Serv. Comm. v. Webster,
720 F.2d 29, 76 n.75 (D.C. Cir. 1983). However, we adhere to our previously
stated position that this dictum is incorrect. See Alito Memorandum at 2-3
( “ because [the D.C. Circuit’s] discussion is dictum, arose in a different context,
and appears to us to be incorrect, we do not believe that it provides a sufficient
basis for agreeing to a plan which, in our view, would violate important privacy
rights that Congress wished to protect” ). The Civil Division’s memorandum con­
tains a persuasive discussion of how giving effect to §6103 does not render
§ 2906(a)(2) a nullity and how the D.C. Circuit’s view fails to give effect to
§ 2906(b), which requires compliance “ with all other Federal laws.” 44 U.S.C.
§ 2906(b). See Memorandum for the Acting Associate Attorney General, from
Frank W. Hunger, Assistant Attorney General, Civil Division, Re: Tax Analysts,
e ta l. v. IRS, e t al., No. 1.97CV260 JLG (D.D.C.) at 9 (Mar. 28, 1997).

                                                        RICHARD L. SHIFFRIN
                                                  Deputy Assistant Attorney General
                                                      Office o f Legal Counsel

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