GAO Access to National Directory of New Hires
Title 42, section 653(l ) of the U.S. Code prohibits the Department of Health and Human
Services from providing the Government Accountability Office access to personally
identifiable information from the National Directory of New Hires, notwithstanding
GAO’s general access provision, 31 U.S.C. § 716(a).
August 23, 2011
MEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL
DEPARTMENT OF HEALTH AND HUMAN SERVICES
You have asked whether the Department of Health and Human Services
(“HHS”) may provide the Government Accountability Office (“GAO”)
access to the National Directory of New Hires (“NDNH”) “for unspeci-
fied purposes related to GAO’s investigatory duties” pursuant to 31
U.S.C. § 716(a) (2006), notwithstanding the restrictions on the use and
disclosure of such information contained in 42 U.S.C. § 653(l ) (2006).
See Letter for John E. Bies, Deputy Assistant Attorney General, Office of
Legal Counsel, from William B. Schultz, Acting General Counsel, HHS
(June 8, 2011). For the reasons discussed below, we believe that 42
U.S.C. § 653(l ) prohibits HHS from providing GAO access to personally
identifiable NDNH information.
Answering your question requires us to determine how two statutory
provisions interact: a provision limiting disclosure of information in the
NDNH, 42 U.S.C. § 653(l ), and a provision authorizing GAO to access
Executive Branch information, 31 U.S.C. § 716(a). We begin our analysis
with the NDNH provision. Part of the Federal Parent Locator Service
(“FPLS”) operated by HHS, the NDNH contains individual employment
information for use in enforcement of state child support orders, among
other applications. 42 U.S.C. § 653(i)(1) (2006). HHS obtains this infor-
mation from the states, which gather it as part of maintaining their own
directories of new hires. 42 U.S.C. §§ 653(i)(1) & 653a(g)(2) (2006).
Section 653 expressly authorizes the Secretary of HHS to share certain
information in the NDNH under particular circumstances and conditions
with various state and federal officials, including “authorized” state
agents and specified Executive Branch officials. 42 U.S.C. § 653(b), (c),
( j ) (2006 & Supp. III 2009).
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GAO Access to National Directory of New Hires
The creation of the NDNH in 1996 pursuant to the Omnibus Personal
Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L.
No. 104-193, § 316, 110 Stat. 2105, 2214–20, greatly expanded the col-
lection and use of personal information through the FPLS. In the same
Act, Congress imposed limits on the use and disclosure of that infor-
mation by including the following provision, entitled “Restriction on
disclosure and use”: “Information in the Federal Parent Locator Service,
and information resulting from comparisons using such information, shall
not be used or disclosed except as expressly provided in this section,
subject to section 6103 of the Internal Revenue Code of 1986.” 42 U.S.C.
§ 653(l )(1).
In its letter to HHS asserting a right to access NDNH information,
GAO does not argue that any provision in the FPLS statute expressly
permits GAO to use or access NDNH information. See Letter for Kath-
leen Sebelius, Secretary of HHS, from Lynn H. Gibson, General Coun-
sel, GAO (Mar. 31, 2011) (“GAO Letter”). Instead, GAO invokes its
“broad statutory right of access to agency records” under 31 U.S.C.
§ 716. GAO Letter at 1. Section 716(a) provides that “[e]ach agency shall
give the Comptroller General information the Comptroller General re-
quires about the duties, powers, activities, organization, and financial
transactions of the agency. The Comptroller General may inspect an
agency record to get the information.” 31 U.S.C. § 716(a). 1 GAO argues
that this provision “requires all agencies to provide GAO with information
about their duties and activities and authorizes GAO to inspect agency
records to obtain such information. Maintenance of the NDNH is both a
statutory duty and an activity of HHS, and thus, HHS is required by
section 716 to provide GAO with access to information in the database.”
GAO Letter at 1. 2
1 The Comptroller General is the head of GAO.
2 You have asked us to consider GAO’s position that 31 U.S.C. § 716(a) entitles it to
access personally identifiable information in the NDNH from HHS notwithstanding the
restrictions on the use and disclosure of such information contained in 42 U.S.C. § 653(l ).
We assume without deciding that GAO would be entitled to such NDNH information
pursuant to 31 U.S.C. § 716(a) in the absence of 42 U.S.C. § 653(l ), and do not address
other statutory authority, if any, under which GAO might potentially seek access to such
information.
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35 Op. O.L.C. 106 (2011)
This Office has previously opined that section 716(a) does not author-
ize GAO to access information that is subject to a statutory provision
restricting dissemination of the information to specified parties, not
including GAO. In GAO Access to Trade Secret Information, 12 Op.
O.L.C. 181 (1988) (“1988 Opinion”), this Office addressed whether GAO
was entitled to access trade secret information held by the Food and Drug
Administration (“FDA”). At that time, 21 U.S.C. § 331( j ) (1982) (section
301( j ) of the Federal Food, Drug, and Cosmetic Act of 1938) prohibited
the FDA from revealing such information “other than to the Secretary [of
HHS] or officers or employees of [HHS], or to the courts when relevant
in any judicial proceeding.” 3 We first found that “there is . . . no excep-
tion in section 301( j ) for disclosure to the GAO,” 1988 Opinion, 12 Op.
O.L.C. at 182, and we then went on to reject the view that section 716(a)
“authorizes the GAO to gain access to the trade secret information cov-
ered by section 301( j ),” id. We explained:
Under established rules of statutory construction concerning statutes
that may arguably conflict, . . . section 301( j ) controls in this situa-
tion. It is a cardinal axiom of statutory construction that “[w]here
there is no clear [congressional] intention otherwise, a specific stat-
ute will not be controlled or nullified by a general one, regardless of
priority of enactment.” Morton v. Mancari, 417 U.S. 535, 550–51
3 In 1990, Congress amended this statutory provision to specify that the provision does
not bar disclosing trade secret information to Congress: “This paragraph does not author-
ize the withholding of information from either House of Congress or from, to the extent of
matter within its jurisdiction, any committee or subcommittee of such committee or any
joint committee of Congress or any subcommittee of such joint committee.” Pub. L. No.
101-508, § 4755(c)(2), 104 Stat. 1388, 1388-210 (codified at 21 U.S.C. § 331( j ) (Supp. II
1990)). Prior to our 1988 Opinion and the 1990 amendment, the Attorney General had
concluded that 21 U.S.C. § 331( j ) forbade disclosure of trade secret information to
Congress. See Federal Food, Drug and Cosmetic Act—Prohibition on Disclosure of
Trade Secret Information to a Congressional Committee, 43 Op. Att’y Gen. 116, 116
(1978) (The Secretary of Health, Education, and Welfare is “required by § 301( j ) [of the
Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 331( j )] to decline to furnish trade
secret data covered by that section to Congress or one of its Committees. I base this
conclusion on the unqualified language of § 301( j ), the consistent and longstanding
interpretation to this effect by [the Department of Health, Education and Welfare], and
prior congressional approval of that interpretation through the rejection of an amendment
to create an express exemption permitting disclosures to Congress.”). Our 1988 Opinion
addressed whether that reasoning extended to GAO.
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GAO Access to National Directory of New Hires
(1974); see also Busic v. United States, 446 U.S. 398, 406 (1980)
(“[A] more specific statute will be given precedence over a more
general one, regardless of their temporal sequence.”). Since section
301( j ) is a specific statute directly addressing one executive branch
agency’s handling of trade secret information, while section 716(a)
is a general statute addressed to all kinds of information in posses-
sion of the executive branch, section 301( j ) controls in the absence
of congressional intent to the contrary. We have reviewed the legis-
lative history of section 716(a) and have found no evidence of any
such intent.
Id. at 182–83. In informal advice to HHS in 2007 regarding a different
statute, we reaffirmed this analysis of the interaction between section
716(a) and a specific statutory provision that authorizes the sharing of
specified information with only certain parties, not including the Comp-
troller General or GAO. See E-mail for Daniel Meron, General Counsel,
HHS, from John Elwood, Deputy Assistant Attorney General, Office of
Legal Counsel at 4–6 (Sept. 26, 2007).
As was the case with the disclosure restrictions at issue in our 1988
Opinion, the plain language of section 653(l ) prohibits disclosure to
GAO. Section 653(l ) is a flat prohibition on disclosure of FPLS infor-
mation by HHS unless affirmative authority is “expressly provided”
elsewhere in section 653. We could find no such affirmative authority in
section 653 providing for disclosure of personally identifiable information
in the NDNH to GAO.
Nor is there any other evidence of a congressional intent to except
GAO from section 653(l )’s limitation on disclosure. The fact that section
653 affirmatively authorizes and circumscribes disclosure of FPLS infor-
mation to certain Executive Branch officials shows that Congress was
cognizant of disclosure issues within the federal government when it
passed section 653(l ). See, e.g., 42 U.S.C. § 653( j ) (permitting disclo-
sures of FPLS information in certain circumstances to the Social Security
Administration and the Secretaries of Education, the Treasury, and Veter-
ans Affairs). Section 653(l )’s allowance of only “expressly provided”
uses and disclosures is thus, in context, designed to address disclosures
within the federal government, and not just outside it. Furthermore, Con-
gress saw fit to specify that the disclosure limitation is “subject to section
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35 Op. O.L.C. 106 (2011)
6103 of the Internal Revenue Code of 1986,” 42 U.S.C. § 653(l )(1), a
provision that permits certain disclosures of tax return information to
Congress, including to GAO, in certain circumstances. See 26 U.S.C.
§ 6103(f ), (i)(8) (2006). 4 If Congress had understood an independent
4 Title 26, section 6103 provides that tax “[r]eturns and return information shall be
confidential.” 26 U.S.C. § 6103(a) (Supp. III 2009). Section 6103 then sets forth various
permitted disclosures of such information, including to congressional committees accord-
ing to certain processes. 26 U.S.C. § 6103(f ) (2006). Title 26, section 6103(i)(8) further
provides for disclosures of return and return information to the Comptroller General, head
of the GAO, subject to certain conditions:
(A) Returns available for inspection. Except as provided . . . , upon written re-
quest by the Comptroller General of the United States, returns and return infor-
mation shall be open to inspection by, or disclosure to, officers and employees of
the Government Accountability Office for the purpose of, and to the extent neces-
sary in, making—
(i) an audit of the Internal Revenue Service, the Bureau of Alcohol, Tobacco,
Firearms, and Explosives, Department of Justice, or the Tax and Trade Bureau,
Department of the Treasury, which may be required by section 713 of title 31,
United States Code, or
(ii) any audit authorized by subsection (p)(6), except that no such officer or
employee shall, except to the extent authorized by subsection (f ) or (p)(6), dis-
close to any person, other than another officer or employee of such office whose
official duties require such disclosure, any return or return information de-
scribed in section 4424(a) in a form which can be associated with, or otherwise
identify, directly or indirectly, a particular taxpayer, nor shall such officer or
employee disclose any other return or return information, except as otherwise
expressly provided by law, to any person other than such other officer or em-
ployee of such office in a form which can be associated with, or otherwise iden-
tify, directly or indirectly, a particular taxpayer.
(B) Audits of other agencies
(i) In general. Nothing in this section shall prohibit any return or return infor-
mation obtained under [title 26] by any Federal agency (other than an agency re-
ferred to in subparagraph (A)) or by a Trustee as defined in the District of Co-
lumbia Retirement Protection Act of 1977, for use in any program or activity
from being open to inspection by, or disclosure to, officers and employees of the
Government Accountability Office if such inspection or disclosure is—
(I) for purposes of, and to the extent necessary in, making an audit author-
ized by law of such program or activity, and
(II) pursuant to a written request by the Comptroller General of the United
States to the head of such Federal agency.
(ii) Information from Secretary. If the Comptroller General of the United
States determines that the returns or return information available under clause (i)
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statutory provision that was written in broad terms authorizing or requir-
ing disclosure to trump the “except as expressly provided” language of
section 653(l )(1), it would have had no reason to include this explicit
carve-out for section 6103. To the contrary, Congress’s decision to clarify
expressly that section 653(l )’s limitation on disclosure is subject to sec-
tion 6103 suggests that Congress was aware that, absent such a cross-
reference (or an express provision elsewhere in section 653), the stringent
restrictions it was enacting on the use and disclosure of FPLS infor-
mation, including NDNH information, might limit disclosure of this
information under other statutes governing access to sensitive Executive
Branch information. Congress nevertheless did not provide expressly in
section 653 that such information could be disclosed to the Comptroller
General or GAO. Insofar as Congress knows how to make clear that a
statute that limits the use or disclosure of information in the possession of
the Executive Branch nevertheless authorizes disclosure to Congress, the
are not sufficient for purposes of making an audit of any program or activity of a
Federal agency (other than an agency referred to in subparagraph (A)), upon
written request by the Comptroller General to the Secretary, returns and return
information (of the type authorized by subsection (l ) or (m) to be made available
to the Federal agency for use in such program or activity) shall be open to in-
spection by, or disclosure to, officers and employees of the Government Ac-
countability Office for the purpose of, and to the extent necessary in, making
such audit.
...
(iv) Certain restrictions made applicable. The restrictions contained in subpar-
agraph (A) on the disclosure of any returns or return information open to inspec-
tion or disclosed under such subparagraph shall also apply to returns and return
information open to inspection or disclosed under this subparagraph.
(C) Disapproval by Joint Committee on Taxation. Returns and return information
shall not be open to inspection or disclosed under subparagraph (A) or (B) with re-
spect to an audit—
(i) unless the Comptroller General of the United States notifies in writing the
Joint Committee on Taxation of such audit, and
(ii) if the Joint Committee on Taxation disapproves such audit by a vote of at
least two-thirds of its members within the 30-day period beginning on the day
the Joint Committee on Taxation receives such notice.
26 U.S.C. § 6103(i)(8) (2006).
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35 Op. O.L.C. 106 (2011)
Comptroller General, or GAO, as it has done in other statutes, 5 the ab-
sence of such an authorization here is significant. Cf. Omni Capital Int’l,
Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 106 (1987) (observing that
Congress “knows how to” authorize nationwide service of process “when
it wants to” and that the fact that “Congress failed to do so here argues
forcefully that such authorization was not its intention”).
The relevant legislative history of the Omnibus Personal Responsibility
and Work Opportunity Reconciliation Act (the Act that created the
NDNH) also does not indicate any intent to except GAO from the disclo-
sure prohibition. Rather, the legislative history simply frames the disclo-
sure limitation in terms as broad as that of the statutory provision itself.
See, e.g., H.R. Rep. No. 104-725, at 349 (1996) (Conf. Rep.) (“Infor-
mation from the FPLS cannot be used for purposes other than those pro-
vided in this section, subject to section 6103 of the Internal Revenue Code
(confidentiality and disclosure of returns and return information).”); H.R.
Rep. No. 104-651, at 1409–10 (1996) (Conf. Rep.) (same). At the same
time, unrelated portions of the legislative history contain references to
similar provisions, either existing or proposed, authorizing Congress, the
Comptroller General, or GAO to access other protected information,
which further highlights the fact that Congress was cognizant of these
disclosure issues at the time of enactment, yet did not include a provision
in section 653 expressly authorizing disclosure of information in the
NDNH to Congress or GAO. See, e.g., H.R. Rep. No. 104-651, at 139
(quoting existing statutory language providing that “safeguards which
limit the use or disclosure of information . . . shall not prevent the use or
disclosure of such information to the Comptroller General of the United
States”); id. at 303–04 (quoting proposed statutory language providing
that certain information “shall not be disclosed by the Secretary or the
Secretary of Veterans Affairs . . . except . . . to permit the Comptroller
5 See, e.g., 10 U.S.C. § 1102(d)(2) (2006) (“Nothing in this section shall be construed
as authority to withhold any . . . record from a committee of either House of Congress,
any joint committee of Congress, or the Comptroller General if such record pertains to
any matter within their respective jurisdictions.”); 41 U.S.C. § 423(h)(5) (2006) (“This
section does not . . . authorize the withholding of information from, nor restrict its receipt
by, Congress, a committee or subcommittee of Congress, the Comptroller General, a
Federal agency, or an inspector general of a Federal agency.”); 41 U.S.C. § 2107(5)
(Supp. V 2011) (similar).
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GAO Access to National Directory of New Hires
General to review the information provided”). The absence of an express
exception here, where the plain language of section 653(l ) would other-
wise bar disclosure to GAO, is meaningful against this backdrop.
Having concluded that section 653(l ) cannot be construed to except
GAO from its limitation on disclosure, we turn to the question we ad-
dressed in our 1988 Opinion—whether section 716 nevertheless author-
izes GAO to access the information. We find that section 716 cannot be
read to operate in this way. Section 653(l ) explicitly restricts which
recipients have access to FPLS information, including NDNH infor-
mation, and under what circumstances. It is a specific provision with
regard to the use and disclosure of FPLS information. Section 716, in
contrast, grants GAO general access to all kinds of information across the
Executive Branch. In circumstances where there is no textual basis or
legislative history to indicate that section 716(a) is intended to override
specific access restrictions or that section 653 is not intended to apply to
GAO, section 653’s explicit restriction on disclosure controls. See Cen-
sus Confidentiality and the PATRIOT Act, 34 Op. O.L.C. 1, 15 (2010)
(concluding that use restrictions in the Census Act control in the face of a
general access provision and noting that our Office has applied a “strong
presumption of confidentiality in concluding that such [general access
provisions] did not override more specific confidentiality protections”);
Disclosure of Confidential Business Records Obtained Under the Na-
tional Traffic and Motor Vehicle Safety Act, 4B Op. O.L.C. 735, 736–37
(1980) (noting that “a specific statute will not be controlled or nullified
by a general one,” and observing that the disclosure limitation at issue “is
not only a later enactment” than an intragovernmental information ex-
change statute, “but also deals with the specific issue of the disclosure of
[the information at issue], rather than . . . with the general matter of
intragovernmental exchange of information” (internal quotation marks
omitted)).
GAO advances two other arguments for access to NDNH information.
First, GAO argues that section 716’s enforcement provisions empower
GAO to enforce a request for access to NDNH information, and therefore
demonstrate that GAO is authorized to access that information:
While section 716 does provide some exceptions to GAO’s ability,
to file an action in district court to enforce its access authority, the
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35 Op. O.L.C. 106 (2011)
circumstances in which those exceptions may be invoked are nar-
rowly circumscribed. As relevant here, section 716(d)(1)(B) pro-
vides that GAO may not bring a civil action to enforce its right of
access if a record is “specifically” exempted from disclosure to GAO
by a statute that: (a) requires without discretion that the record be
withheld from GAO; (b) establishes particular criteria for withhold-
ing the record from GAO; or (c) refers to particular types of records
to be withheld from GAO. Although the NDNH statute contains re-
strictions on the disclosure of NDNH data, it does not specifically
prohibit disclosure to GAO. In fact, the statute makes no mention of
GAO. Therefore, since it does not qualify under the statutory criteria
for which Congress barred an enforcement under section 716, a for-
tiori, Congress did not bar GAO’s access to NDNH data.
GAO Letter at 1–2. Even assuming that GAO is correct that section 653
does not “specifically” exempt NDNH information from disclosure to
GAO because its limitation on disclosure does not mention GAO ex-
pressly, this argument, like a similar argument addressed in our 1988
Opinion,
ignores the fundamental distinction between a right and a judicial
remedy to enforce the right: these other subsections simply address a
method of enforcing GAO’s right to information under section
716(a); they do not define in any way the right itself. The question of
the applicability of GAO’s right to information under section 716(a)
is separate from, and does not depend on, any questions that may
arise under other subsections of 31 U.S.C. § 716 concerning judicial
enforcement of that right.
1988 Opinion at 183 n.2.
Second, GAO argues that “an interpretation of the NDNH statute to
prohibit disclosure to GAO would constitute an implied repeal of GAO’s
right of access under section 716,” and that implied repeals are disfa-
vored. GAO Letter at 2. But this is no implied repeal. “Where a later
special or local statute is not irreconcilable with a general statute to the
degree that both statutes cannot have a coincident operation, the general
statute is not repealed, and the special or local statute exists as an excep-
tion to its terms.” 1A Norman J. Singer & J.D. Shambie Singer, Suther-
land on Statutes and Statutory Construction § 23:16, at 509 (7th ed.
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GAO Access to National Directory of New Hires
2009). Rather than constituting a repeal by implication, we understand
section 653(l ) to set forth a statutory prohibition that is not overridden by
section 716(a) and that therefore exists as an exception to section 716(a)’s
general grant of access.
* * * * *
For the foregoing reasons, we conclude that 42 U.S.C. § 653(l ) prohib-
its HHS from providing GAO access to personally identifiable NDNH
information.
JOHN E. BIES
Deputy Assistant Attorney General
Office of Legal Counsel
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