Case Information

*1 May 11, 1979 79-30 MEMORANDUM OPINION FOR THE

GENERAL COUNSEL, FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Tax Returns—Disclosure (26 U.S.C. § 6103; 18 U.S.C. § 1905)

This responds to your request for our opinion whether the Federal Mine Safety and Health Review Commission (Commission) is prohibited by 26 U.S.C. §§ 6103, 7213, 7217 (1976), or by 18 U.S.C. § 1905 (1976), from publishing, in an opinion or an order, financial inform ation about a mine operator derived from a copy o f an income tax return produced and sub mitted as evidence by the operator and entered o f record in a proceeding within the Commission’s jurisdiction. We find no such prohibition in the statutory provisions cited. Neither will such a publication subject the Commissioners to civil or criminal liability under either the title 26 provi sions or § 1905 o f title 18 o f the United States Code.

I. Title 26 Section 6103 o f title 26 makes tax returns and tax return information confidential. It prohibits an officer o r employee o f the United States from disclosing any return or return inform ation “ obtained by him in any m an ner in connection with his service as such an officer or an employee or otherwise,” except as authorized by title 26. Complementary provisions, 26 U.S.C. §§ 7213 and 7217, subject officers and employees who disclose information or docum ents made confidential by § 6103 to criminal and civil liability, except as to disclosures authorized by title 26.

It is im portant to note that §§ 7213 and 7217 are restricted in their appli cation to the disclosure o f “ any return or return inform ation (ay defined in section 6103(b)).” [Emphasis added.] A nd, o f course, the confidentiality rule of § 6103 itself applies only to returns and return inform ation that are within the relevant statutory definitions o f those terms. Crucial to

our consideration is that a return, as defined by § 6103(b)(1), is “ any tax or inform ation return * * * which is filed with the Secretary [of the Treasury]” and that the term “ return inform ation” means “ a taxpayer’s identity * * * or any other data, received by, recorded by, prepared by, *2 furnished to, or collected by the Secretary. ” § 6103(b)(2). [Emphasis added.] Thus, the confidentiality rule and the civil and criminal liability provisions o f titlfe 26, even read most broadly, apply only when there is a nexus between the inform ation disclosed and information that has been in the possession o f the Secretary o f the Treasury. The requisite nexus is ab sent when, as with the inform ation that the Commission proposes to publish, the source docum ent is one that has never been within the custody or control o f the Secretary.

It is immaterial that a layman might view the source docum ent as an income tax return. It is also immaterial that the docum ent is a copy (pro duced by the taxpayer) o f a return that actually was filed with the Secre tary. Section 6103 and its com plementary provisions protect the confiden tiality o f inform ation filed with or collected or generated by the Secretary o f the Treasury in connecton with his administration o f the tax system and inform ation so filed, collected, or generated that has been distributed under the authority o f § 6103. By its terms it does not and was not in tended to shield from disclosure a tax return, or inform ation derived from a tax return, produced by the taxpayer and given voluntarily to the Governm ent in a proceeding unconnected with the administration o f the tax laws. Such a docum ent (even if a copy o f a return actually filed) and such inform ation cannot reasonably be said to have been “ filed with” or “ received by, recorded by, prepared by, furnished to, or collected by” the Secretary o f the Treasury.

O ur conclusion, stated simply, is that § 6103 and §§ 7213 and 7217 of title 26 are inapplicable to the issue o f the disclosure o f financial inform a tion derived from a copy o f an income tax return produced by the taxpayer and voluntarily filed as evidence in an administrative proceeding.

II. 18 U .S.C . § 1905

Section 1905 provides:

W hoever, being an officer or employee o f the United States or of any departm ent or agency thereof, publishes, divulges, discloses, or makes known in any m anner or to any extent not authorized by law any inform ation coming to him in the course o f his em ployment or official duties or by reason o f any examination or investigation made by, or return, report or record made to or filed with, such departm ent or agency or officer or employee thereof, which inform ation concerns or relates to the trade secrets, processes, operations, style o f work, or apparatus, or to the identity, confidential statistical data, am ount or source of any income, profits, losses, or expenditures o f any person, firm, partnership, corporation, or association; or permits any in come return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person ex cept as provided by law; shall be fined not more than $1,000, or imprisoned not more than one year, or both; and shall be re moved from office or employment.

You have informed us that the Commission proposes to publish in its opinion inform ation derived from an income tax return.' M oreover, the information to be published includes, inter alia, the gross income o f the operator company for 1 year and the total compensation paid by the com pany to three o f its officers in 2 different years. Such inform ation would appear to be within the scope o f inform ation protected from disclosure by § 1905.2 It, however, prohibits only disclosures made “ in any m anner or to an extent not authorized by law.” Thus, its bar is not absolute.

The Attorney General has opined that, as used in § 1905, the phrase “ au *3 thorized by law” does not require that an otherwise prohibited disclosure be specifically authorized by law. “ [I]t is sufficient if the activity is ‘authorized in a general way by law’ ” (citation omitted). This includes an authorization that is reasonably implied. 41 Op. A tt’y Gen. 166, 169 (1953).

There is no statute that specifically authorizes the Commission to publish, in its opinions or orders, inform ation within the scope o f the pro hibitions o f § 1905. However, the Commission is a quasi-judicial body with the authority both to hold hearings in the first instance and to review decisions made by its administrative law judges. 30 U .S.C . § 823 (1978 Supp.). As is normally the case with such bodies, its decisions, whether in itial or appellate, must be based upon the record as well as the law. See 30 U.S.C. §§ 823(d)(2)(C), 815 (c)(2) and (d) (1978 Supp.). It is authorized and directed to make findings o f fact, id., which must be sustained on judicial review if supported by substantial evidence. 30 U.S.C. § 816(a)(1) (1978 Supp.). Thus, the Commisison is, we believe, authorized by clear implication o f law to include in its opinions and orders a recitation of evidence in the record upon which its findings and legal conclusions are 1 As used in § 1905, “ income retu rn " is not limited, as it is in 26 U .S.C . § 6103 (1976), to returns filed with the Secretary o f the Treasury. 2 An argument can be made that the intended scope o f § 1905 is not as broad as its language would indicate. For an articulation o f this argum ent, see D. Clem ent, “ Rights of Submitters to Prevent Agency Disclosure of Confidential Business Inform ation: The Reverse Freedom o f Inform ation Act Law suit,” 55 Tex. L.R. 587, 602-617 (1977). In connection with the Clement article see, Muniz v. Hoffman, 422 U .S. 454 (1975). We need not here delimit the scope o f § 1905 since we conclude that, even if the inform ation that the Com mis sion proposes to publish is within the intended scope, disclosure in an opinion o f the C om mission is nevertheless permissible.

are based. This is sufficient authorization by law, within the meaning of § 1905, to allow the Commission to publish in its opinions and orders evidence of record that would otherwise be protected from disclosure.

J o h n M . H a r m o n Assistant A ttorney General Office o f Legal Counsel