June 16, 1978
78-33 MEMORANDUM OPINION FOR THE GENERAL
COUNSEL, INTERSTATE COMMERCE
COMMISSION
Interstate Commerce Commission— Furnishing
Information to Congress (49 U.S.C. § 322(d))
This is in response to your inquiry whether employees of the Interstate
Commerce Commission (the Commission) may, under section 222(f) of the
Interstate Commerce Act (the Act), 49 U.S.C. § 322(f), furnish documents or
information to a member of the staff of the Subcommittee on Antitrust and
Monopoly of the Senate Committee on the Judiciary without fear of possible
criminal liability under § 222(d) of the Act, 49 U.S.C. § 322(d). We conclude
that, subject to the conditions set forth herein, employees of the Commission
may lawfully furnish to members of the Subcommittee staff information
protected by § 222(d).
1. The first question presented is whether the exception provided in § 222(0
applies to the prohibition against the release of “ any fact or information” set
forth in § 222(d). We think that § 222(0 clearly provides an exception to the
prohibition established in § 222(d). Section 222(0 provides in pertinent part:
Nothing in this part shall be construed to prevent the giving of such
information . . . to any officer or agent of the Government of the
United States or of any State, Territory, or District thereof, in the
exercise of his power.
The phrase“ nothing in this part” refers to the entire Motor Carrier Act of 1935,
Pub. L. No. 255, August 9, 1935 (49 Stat. 543), which was included at the
time of its enactment as “ Part II” of the Interstate Commerce Act. Because
§ 222(d) is a provision in “ Part II,” it would seem that the exception in
§ 222(0 applies to the latter provision as it does to all other provisions of “ Part
II.” In addition, we think the exception provided for “ such information” in
§ 222(0 is broad enough to reach the prohibition on the disclosure of “ any fact
or information” in § 222(d). We thus believe § 222(0 provides an exception to
whatever prohibition exists by reason of § 222(d).
2. You also ask whether a subcommittee investigator or attorney is an
“ officer or agent of the Government of the United States” within the meaning
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of § 222(0- We believe that such subcommittee officials come within the
meaning of this phrase.
Our conclusion is based on both the language of § 222(0 and its legislative
history. Simply relying on the plain meaning of the above phrase leads us to the
conclusion that Congress and those who work for the Congress (or its
committees) are included. This reading of the statute is supported by the
evident intent displayed by other parts of § 222(0- That provision allows
disclosure
. . . in response to any legal process issued under the authority of any
court, or to any officer or agent of the Government of the United
States or of any State, Territory, or District thereof, in the exercise of
his power, or to any officer or other duly authorized person seeking
such information for the prosecution of persons charged with or
suspected of crimes.
The Congress, by allowing disclosure in response to legal process issued by a
court, or to any officer or agent of the United States Government or of any
State, territory, or district, or to any officer or other duly authorized person
seeking information for purposes of prosecution, evidently intended that the
prohibitions against disclosure in “ Part II” of the Act should not interfere with
the orderly processes of government. This underlying purpose clearly extends
to the various activities conducted by the Congress and thus § 222(0 allows
disclosure of the information subject to § 222(d) in order to facilitate the
Congress’ legitimate activity.
The meager legislative history of § 222(0 also supports this conclusion. As
noted above, § 222(0 was enacted as part of the Motor Carrier Act of 1935, but
no explanation was offered concerning Congress’ intent underlying that
provision. However, its language closely tracks, and apparently was modeled
on, the language of § 15(13) of the Interstate Commerce Act, 49 U.S.C.
§ 15(13). See S.Rept. No. 433, 76th Cong., 1st sess. p. 15 (1939). This latter
statute was originally added by floor amendment to the Mann-Elkins Act, Pub.
L. No. 309, June 18, 1910 (36 Stat. 553) in a context, like that of the present
situation, of providing an exception to a prohibition on the disclosure of
information. Its intent, as set forth by Senator Burton, the sponsor of the
amendment, was as follows:
Mr. President, very briefly I will explain the evil or injustice which
this amendment is intended to prevent. It has developed in judicial
proceedings in two instances that certain great industrial combina
tions maintain information bureaus. Those engaged in the work of
these bureaus, by divers methods, none of which, I think, can be
rated as commendable, obtain from railway corporations, or through
their agents, information relating to the business of their minor
competitors. For example, a great establishment ascertains that a
competitor intends to ship into the State of Ohio, Indiana, or Texas a
consignment of merchandise. The amount of that merchandise
becomes known to the information bureau, and the name of this
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consignee is also ascertained. Using this information, a strenuous
effort is made to prevent the competitor from disposing of his
merchandise, from making any sales in the locality to which the
shipment is made. An unfair advantage is thus given to the larger
establishment, which enables it, in a measure, to crush out competi
tion. I have a mass of information on this subject, if there is a desire
that I should read it. [45 Cong. Rec. 7207 (1910)]
It seems clear from this statement that Congress’ concern in this area was the
use of information to secure unfair competitive advantages, see, United States
v. Baltimore and Ohio Railroad C o., 319 F. Supp. 1103, 1105 (D. Md. 1970);
Commonwealth v . White, 179 S.W. 469, 470 (Ct. App. Ky. 1915); Mandell v.
Long Island Railroad Co., 227 I.C.C. 278 (1938); nothing was said to indicate
that the provisions were designed to impinge on the processes of Government.
As such, since §§ 222(d) and (0 appear to be founded on this same concern, we
believe that it would distort Congress’ purposes underlying these provisions to
conclude that they operate to preclude Congress from obtaining access to
information held by the Commission. This suggests that the term “ officer or
agent of the Government of the United States” in § 222(f) is meant to include
officials acting on behalf of Congress.
Finally, the limited case law interpreting provisions comparable to § 222(d)
and (0 further supports this result. The courts generally have not interpreted
these comparable provisions to impose inflexible or rigid requirements on
access to information subject to a general prohibition on disclosure. Rather, the
decisions have allowed access to such information by Federal agencies. See,
D .G . Bland Lumber Co. v. N .L.R .B.. 177 F. (2d) 555, 558 (5th Cir. 1949); by
State agencies, State v. Atchison, T. and S. F. Ry. Co., 221 P. 259, adhered to
by 225 P. 1026 (S. Ct. Kan. 1923-1924); by those seeking discovery in
litigation, Delta Steamship Lines, Inc. v. National Maritime Union, 265 F.
Supp. 654 (E.D. La. 1967); and even by ordinary citizens acting pursuant to a
State statute, State v. Seaboard Air Line Ry., 84 S.E. 283 (S. Ct. N. Car.
1915), a ffd , 245 U.S. 298 (1917). In view of the rather large number of
individuals or entities to whom the courts have allowed access to information
under provisions comparable to § 222(d) and (0, we think it unreasonable to
conclude that these latter provisions should be applied restrictively. Again, this
suggests that Congress is not barred from access to the information protected by
§ 222(d).
We thus conclude, for the foregoing reasons, that the term “ officer or agent
of the Government of the United States” includes officials acting on behalf of
the Congress.
3. The fact that information protected by § 222(d) may be released to
officials acting on behalf of the Congress does not mean, however, that they
have unlimited access to such information. The statute grants access to the
information to an officer or agent of the Government of the United States “ in
the exercise of his power.” In our view, this condition necessarily calls for an
inquiry whether the officials seeking access to information protected by
§ 222(d) are acting within the proper limits of their authority.
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We have found no court decisions with respect to either § 222(0 or
analogous provisions.that are helpful in determining when an official acting on
behalf of the Congress would satisfy the requirement “ in the exercise of his
power.” We believe, however, that decisions of the courts on the legitimate
scope of congressional power to investigate are instructive on this question.
They set forth a number of factors bearing on Congress’ power of investigation.
See generally, Wilkinson v. United States, 365 U.S. 399, 408-09 (1961);
Ashland Oil, Inc. v. F.T.C ., 409 F. Supp. 297, 305 (D.D.C. 1976), affd, 548 F.
(2d) 977 (D.C. Cir. 1976). For example, the investigation must be pursuant to a
valid legislative purpose, e.g ., Quinn v. United States, 349 U.S. 155, 161
(1955); Ashland Oil, Inc. v. F .T .C ., supra, at 305, n. 8; the congressional
entity conducting the investigation must be authorized by Congress to do so,
e.g., Gojack v. United States, 384 U.S. 702, 716 (1966), and must conduct the
investigation in the manner prescribed by the Congress, e.g., Liveright v.
United States, 347 F. (2d) 473 (D.C. Cir. 1965); Shelton v. United States, 327 F.
(2d) 601 (D.C. Cir. 1963); and the specific inquiries must be pertinent to the
subject matter of the investigation. Wilkinson v. United States, supra; Ashland
Oil, Inc. v. F .T .C ., supra. Any determination whether these criteria are met
depends upon the facts and circumstances of each particular investigation, and
we thus are not in a position to address such questions here. Rather, since these
questions must be answered in a specific factual context, it is for the
Commission to ascertain whether a subcommittee staff member seeking
information is acting “ in the exercise of his power” in a particular situation.
L eon U lm an
Deputy Assistant Attorney General
Office o f Legal Counsel
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