Requiring Identifying Information for Access to Financial Disclosure Reports During the Period Governed by Section 11(a) of the STOCK Act ( 2012 )

Requiring Identifying Information for Access to
Financial Disclosure Reports During the Period
Governed by Section 11(a) of the STOCK Act
A procedure under which prospective viewers are required to provide basic identifying
information similar to that described in section 105(b)(2) of the Ethics in Government
Act in order to access financial disclosure reports made available under section 11(a)
of the Stop Trading on Congressional Knowledge Act is consistent with both these
statutes.
This procedure may be implemented by Executive Branch agencies at the direction of the
Office of Government Ethics, pursuant to its authority under section 402 of the Ethics
in Government Act to prescribe procedures governing the public availability of finan-
cial disclosure reports.
The interim regime established by section 11(a) of the Stop Trading on Congressional
Knowledge Act terminates upon implementation of the permanent public disclosure
system on the Office of Government Ethics website required by section 11(b). Section
11(b)(2) makes clear that viewers may not be required to provide identifying infor-
mation in order to view reports made available through that system.
August 22, 2012
MEMORANDUM OPINION FOR THE ACTING DIRECTOR
OFFICE OF GOVERNMENT ETHICS
The Stop Trading on Congressional Knowledge Act of 2012, Pub. L.
No. 112-105, 126 Stat. 291, also known as the STOCK Act, requires the
President to ensure that financial disclosure reports filed pursuant to title I
of the Ethics in Government Act of 1978 (“EIGA”) (codified as amended
at 5 U.S.C. app. §§ 101–111 (2006 & Supp. IV 2010)), are made available
to the public electronically. For an initial interim period, the President
must ensure that the reports are made available through the official web-
sites of Executive Branch agencies. See STOCK Act § 11(a), 126 Stat. at
298–99. This interim period begins on September 30, 2012, and ends no
later than October 4, 2013. See Pub. L. No. 112-173, § 1, 126 Stat. 1310,
1310 (2012); STOCK Act § 11(b)(1), 126 Stat. at 299. 1 Thereafter, the
1 The STOCK Act originally required that the first stage of Internet access begin on
August 31, 2012. Id. § 11(a)(1), 126 Stat. at 298. The STOCK Act was subsequently
amended to move this deadline to the end of September. Pub. L. No. 112-173, § 1, 126
Stat. at 1310. As noted below, section 11(b)(6) of the STOCK Act permits the Director
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President must provide public access to the reports through a database on
the website of the Office of Government Ethics (“OGE”). See STOCK
Act § 11(b), 126 Stat. at 299. You have asked for our opinion whether,
during the interim period when reports are made available on agency
websites under section 11(a), prospective viewers may be required to
provide basic identifying information similar to the information described
in section 105(b)(2) of the EIGA, 5 U.S.C. app. § 105(b)(2), in order to
access the reports. See Letter for Virginia A. Seitz, Assistant Attorney
General, Office of Legal Counsel, from Don W. Fox, Acting Director,
OGE, at 1 (July 13, 2012) (“Request Letter”). We conclude that such a
procedure would be consistent with the STOCK Act and the EIGA and
could be implemented by Executive Branch agencies at the direction of
OGE, pursuant to its authority under section 402 of the EIGA, 5 U.S.C.
app. § 402 (2006), to prescribe procedures governing the public availabil-
ity of financial disclosure reports. We note, however, that the interim
regime established by section 11(a) of the STOCK Act terminates upon
implementation of the permanent public disclosure system on the OGE
website required by section 11(b). STOCK Act § 11(a)(4), 126 Stat. at
299. As we explain below, section 11(b)(2) of the STOCK Act makes
clear that viewers may not be required to provide identifying information
in order to view reports made available through that system.
I.
Section 101 of the EIGA requires certain officers and employees in the
Executive Branch to file financial disclosure reports containing detailed
information about their income, assets, liabilities, and financial transac-
tions. See 5 U.S.C. app. §§ 101–102. Section 105(a) of the EIGA requires
that each executive agency and supervising ethics office “make available
to the public” those reports, in accordance with section 105(b). Id.
§ 105(a). Section 105(b)(1) provides that any person seeking to inspect or
copy a report must be permitted to do so. Id. § 105(b)(1). Section
105(b)(2), however, provides that a report
of the Office of Government Ethics to extend the October 4, 2013 deadline for com-
mencing the second stage of Internet access.
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36 Op. O.L.C. 198 (2012)
may not be made available under this section to any person nor may
any copy thereof be provided under this section to any person except
upon a written application by such person stating—
(A) that person’s name, occupation and address;
(B) the name and address of any other person or organization
on whose behalf the inspection or copy is requested; and
(C) that such person is aware of the prohibitions on the obtain-
ing or use of the report.
Id. § 105(b)(2). Section 105(c)(1) of the EIGA sets forth the prohibitions
on obtaining or using reports:
It shall be unlawful for any person to obtain or use a report—
(A) for any unlawful purpose;
(B) for any commercial purpose, other than by news and com-
munications media for dissemination to the general public;
(C) for determining or establishing the credit rating of any indi-
vidual; or
(D) for use, directly or indirectly, in the solicitation of money
for any political, charitable, or other purpose.
Id. § 105(c)(1).
The EIGA assigns the Director of OGE various responsibilities in con-
nection with the financial disclosure reports and with preventing conflicts
of interest on the part of officers and employees of the Executive Branch.
Of particular relevance to your inquiry, the EIGA provides that “[t]he
responsibilities of the Director shall include—(1) developing . . . rules and
regulations establishing procedures for the . . . public availability of fin-
ancial statements filed by officers and employees in the executive branch”
pursuant to the EIGA. Id. § 402(b). 2 The EIGA further provides that the
2 Section 402(b)(1), which was enacted as part of the original EIGA in 1978, states
that the disclosure statements are “required by title II of [the EIGA].” Id. The EIGA was
substantially amended by the Ethics Reform Act of 1989, however; and, in that process,
title II was repealed, and the provisions governing the filing of disclosure reports by
Executive Branch officers and employees were moved to title I. See Ethics Reform Act
of 1989 (“1989 Act”), Pub. L. No. 101-194, tit. II, §§ 201–202, 103 Stat. 1716, 1724–44.
We have found nothing in either the text of the 1989 Act or its legislative history sug-
gesting that this revision was intended to affect the Director’s authority under section
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Requiring Identifying Information for Access to Financial Disclosure Reports
“Director shall . . . ensure that each executive agency has established
written procedures relating to how the agency is to . . . , if applicable,
make publicly available, financial disclosure statements filed by any of
its officers or employees,” id. § 402(d)(1), and “shall ensure that each
agency’s procedures are in conformance with all applicable requirements,
whether established by law, rule, regulation, or Executive order,” id.
§ 402(d)(2).
The STOCK Act imposes enhanced requirements regarding the public
availability of financial disclosure reports. Specifically, it establishes a
two-stage process for making reports available to the public through the
Internet. The first stage is described in section 11(a) of the Act. That
provision requires that, not later than September 30, 2012, “the President
shall ensure” that financial disclosure reports filed by Executive Branch
employees pursuant to title I of the EIGA “are made available to the
public on the official websites of the respective executive branch agen-
cies not later than 30 days after such forms are filed.” STOCK Act
§ 11(a)(1), 126 Stat. at 298; Pub. L. No. 112-173, § 1, 126 Stat. at 1310.
The interim requirements of section 11(a)(1) terminate upon the imple-
mentation of the second stage, a “public disclosure system established
under subsection (b)” of section 11. STOCK Act § 11(a)(4), 126 Stat. at
299.
Paragraph (1) of section 11(b) describes the general contours of that
public disclosure system. It requires that, not later than October 4, 2013
(eighteen months after enactment of the STOCK Act), unless that deadline
is extended pursuant to section 11(b)(6), “the President, acting through
the Director of [OGE], shall develop systems to enable” (A) “electronic
filing” of the financial disclosure reports required by the EIGA and (B)
402(b)(1) to prescribe rules and regulations governing the public availability of financial
disclosure reports filed by Executive Branch officers and employees. On the contrary,
section 111 of the EIGA, as added by the 1989 Act, expressly assigns the Director
responsibility for administering the provisions of the newly enacted title I with regard to
those officials. 5 U.S.C. app. § 111(1). We therefore conclude that the 1989 Act did not
impair the Director’s rulemaking authority under section 402(b)(1). See Hawaii v. Office
of Hawaiian Affairs, 556 U.S. 163, 175 (2009) (“‘repeals by implication are not favored
and will not be presumed unless the intention of the legislature to repeal [is] clear and
manifest’” (brackets in original)). Accordingly, section 402(b)(1)’s reference to “title II”
of the EIGA should be understood as a reference to the provisions governing disclosure
reports by Executive Branch officials currently located in title I.
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36 Op. O.L.C. 198 (2012)
“public access” to reports filed by Executive Branch officials “through
databases that—(i) are maintained on the official website of [OGE]; and
(ii) allow the public to search, sort, and download data contained in the
reports.” Id. § 11(b)(1), 126 Stat. at 299.
Paragraph (2) of subsection (b) addresses the information that may be
required from individuals seeking access to financial disclosure reports
under section 11. It states:
No login shall be required to search or sort the data contained in
the reports made available by this subsection. A login protocol with
the name of the user shall be utilized by a person downloading data
contained in the reports. For purposes of filings under this section,
section 105(b)(2) of the Ethics in Government Act of 1978 (5 U.S.C.
App. 105(b)(2)) does not apply.
Id. § 11(b)(2), 126 Stat. at 299.
II.
In our view, during the interim period governed by section 11(a) of
the STOCK Act, Executive Branch agencies may implement that sec-
tion’s electronic disclosure requirement through a procedure that re-
quires individuals to provide information similar to that specified in
section 105(b)(2) of the EIGA before accessing a financial disclosure
report via an agency website. OGE may prescribe that procedure under
section 402 of the EIGA, which authorizes it to establish rules govern-
ing the public availability of financial disclosure reports.
A.
As noted, your letter requests our opinion about the implementation of
section 11(a) of the STOCK Act. In the letter, you first raise the possibil-
ity that section 105(b)(2) of the EIGA—which requires a requester to
supply certain identifying information in order to obtain access to a
report—continues to apply when reports are made available on agency
websites pursuant to section 11(a). See Request Letter at 2 n.1. If section
105(b)(2) applied in that circumstance, then the answer to your inquiry
would be straightforward: A procedure requiring an individual seeking
access to a report via a website to first provide the identifying infor-
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Requiring Identifying Information for Access to Financial Disclosure Reports
mation specified in section 105(b)(2) would clearly be permissible;
indeed, that procedure would be statutorily mandated. See 5 U.S.C. app.
§ 105(b)(2) (stating that a report “may not be made available . . . except
upon a written application” including the specified information). We do
not, however, believe that to be the natural reading of the statutory
scheme.
Instead, we believe that under the best reading of the pertinent pro-
visions, EIGA section 105(b)(2) does not apply when reports are made
available on agency websites pursuant to section 11(a) of the STOCK
Act. To be sure, the STOCK Act does not repeal section 105(b)(2). The
preconditions to disclosure set forth in section 105(b)(2) therefore
continue to apply when individuals seek to inspect or obtain copies of
reports through non-electronic means (such as in person or by mail).
But section 105(b)(2) applies only when a report or copy thereof is
“made available under this section,” id., i.e., under section 105 of the
EIGA. And a report that is made available via the Internet pursuant to
section 11(a) of the STOCK Act has not been “made available under”
section 105 of the EIGA, as that phrase is naturally understood. Thus,
section 105(b)(2), by its own terms, is inapplicable to reports made
available under section 11(a) of the STOCK Act.
In any event, even assuming that section 105(b)(2) would otherwise
apply to reports made available under section 11(a) of the STOCK Act,
section 11(b)(2) of the STOCK Act states that, “[f ]or purposes of filings
under this section, section 105(b)(2) of the Ethics in Government Act of
1978 (5 U.S.C. App. 105(b)(2)) does not apply.” 126 Stat. at 299 (empha-
sis added). That provision renders the conditions on disclosure in section
105(b)(2) inapplicable to reports governed by section 11 of the STOCK
Act, including reports made available pursuant to section 11(a).
In context, the phrase “[f ]or purposes of filings under this section” is
best read to mean “for purposes of reports governed by this section.” The
term “filings” appears to refer to financial disclosure reports, which the
STOCK Act uses varying terminology to describe. Compare, e.g.,
STOCK Act § 11(a)(1), 126 Stat. at 298 (referring to the disclosure
reports as “forms”), with id. § 11(b)(1), 126 Stat. at 299 (referring to
them as “reports”). Section 105(b)(2) addresses public access to reports
after they have been filed with the relevant agencies, at which point the
reports are appropriately called “filings.” See Black’s Law Dictionary
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36 Op. O.L.C. 198 (2012)
705 (9th ed. 2009) (defining “filing” as “[a] particular document . . . in
the file of a . . . record custodian”). The term “under,” when used in a
statute, frequently means “governed by” or “subject to the requirements
of.” See Fla. Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S.
33, 39 (2008); The American Heritage Dictionary of the English Lan-
guage 1874 (4th ed. 2006) (“American Heritage Dictionary”) (defini-
tions 7–10 of “under”); Webster’s Third New International Dictionary of
the English Language 2487 (1993) (“Webster’s Dictionary”) (definitions
8b, 9b, and 10a of “under”).
The term “section” is best understood as referring to section 11 of the
STOCK Act in its entirety, including section 11(a). Congress ordinarily
adheres to a hierarchical scheme when subdividing statutory sections and
referencing those sections and their subdivisions. Koons Buick Pontiac
GMC, Inc. v. Nigh, 543 U.S. 50, 60 (2004). Thus, Congress generally uses
the term “section” to refer to a statutory section as whole and the term
“subsection” to refer to one of the section’s first-level subdivisions, which
are typically preceded by lowercase letters, such as “(a)” or “(b).” See id.
at 60–61. Congress appears to have followed that practice in the STOCK
Act, including in section 11. See, e.g., STOCK Act § 6(b), 126 Stat. at
294 (referring to “subsection (a)”); id. § 11(a)(4), 126 Stat. at 299 (distin-
guishing between “this subsection” and “subsection (b)”); id. § 14, 126
Stat. at 300–01 (referring to “section 6 of this Act”). The Supreme Court
has, on rare occasions, concluded that a statutory reference to “section” or
“subsection” was a drafting error and should be disregarded. See, e.g.,
Dir., Workers’ Comp. Programs v. Rasmussen, 440 U.S. 29, 41 (1979)
(concluding that use of the term “subsection” was “plainly in error” where
the provision referred to “[d]eterminations under this subsection” and no
determinations were made under the subsection). We see no indication,
however, that Congress made a drafting error here. On the contrary, as we
have noted, in drafting the STOCK Act, Congress appears to have ob-
served the distinction between the terms “section” and “subsection”
throughout. We therefore believe that section 11(b)(2) of the STOCK Act
makes clear that section 105(b)(2) of the EIGA does not apply for purpos-
es of disclosure reports governed by section 11 of the STOCK Act. Ac-
cordingly, the EIGA’s requirement that a requester seeking financial
disclosure reports supply specified identifying information is inapplicable
when reports are made available pursuant to section 11(a).
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In your Request Letter, you identify a potential alternative reading of
the statement in section 11(b)(2) that “[f ]or purposes of filings under this
section, section 105(b)(2) of the Ethics in Government Act of 1978 (5
U.S.C. App. 105(b)(2)) does not apply.” 126 Stat. at 299 (emphasis add-
ed). See Request Letter at 2 n.1. Under that reading, this statement de-
clares that section 105(b)’s preconditions for disclosure are inapplicable
only for reports actually filed pursuant to requirements imposed by sec-
tion 11. Id. You note that, while section 11(b) requires the filing of re-
ports, because it imposes a new electronic filing requirement, STOCK Act
§ 11(b)(1)(A), 126 Stat. at 299, section 11(a) primarily addresses public
access to reports that have already been filed. Request Letter at 2 n.1.
You therefore suggest that section 105(b)(2)’s requirements would, as a
practical matter, be inapplicable when an individual seeks access to re-
ports filed under section 11(b), but that the requirements would continue
to apply when an individual seeks access to reports under section 11(a).
Id. In our view, however, this alternative reading of section 11(b)(2) has
significant weaknesses.
For the alternative reading to be correct, “filings” would have to refer
to “submissions” of financial disclosure reports, rather than to the reports
themselves, and “under” would have to mean “as required by,” rather
than “governed by.” Those are plausible meanings of “filings” and “un-
der.” See STOCK Act § 11(b)(1)(A), 126 Stat. at 299 (referring to “elec-
tronic filing of reports”); Kasten v. Saint-Gobain Performance Plastics
Corp., 131 S. Ct. 1325, 1331 (2011) (noting that “file” can mean “to
place among official records as prescribed by law”); Kucana v. Holder,
558 U.S. 233, 244 (2010) (noting that “under” can mean “pursuant to” or
“by reason of the authority of”); Webster’s Dictionary at 849 (definition
3a(1) of “file”) (“to deliver (as a legal paper or instrument) after comply-
ing with any condition precedent (as the payment of a fee) to the proper
officer for keeping on file among the records of his office”); id. at 2487(definition 8a of “under”) (“required by”). But taken in context, those
meanings do not seem as likely as the meanings that we have ascribed to
the terms.
Moreover, the alternative reading has two serious flaws: First, it pro-
vides no explanation for Congress’s use of the word “section,” as opposed
to the word “subsection,” in section 11(b)(2). Under the alternative read-
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36 Op. O.L.C. 198 (2012)
ing, the provision would have the same meaning regardless of which word
Congress used. Therefore, if Congress had intended the alternative read-
ing, Congress presumably would have used the word “subsection,” the
word it used earlier in section 11(b)(2); but Congress did not do so.
In addition, the alternative reading rests on the mistaken premise that
section 11(b) is the only provision in section 11 that requires “filings.”
Contrary to that premise, one provision in section 11(a) also requires
filings: Section 11(a)(3) states that “transaction disclosure[s] required by
section 103(l) of the [EIGA] . . . shall be filed not later than the date
required by that section.” STOCK Act § 11(a)(3), 126 Stat. at 299 (em-
phasis added). Thus, the practical effect of the alternative reading would
be that section 105(b)(2)’s preconditions on disclosure would be inappli-
cable both when an individual seeks reports under section 11(b) and when
an individual seeks transaction reports under section 11(a). The precondi-
tions would continue to apply when an individual seeks access to other
disclosure reports under section 11(a). We have found no basis for this
counter-intuitive reading in the legislative history and cannot conceive of
any reason why Congress would have adopted such a patchwork scheme
of conditions on disclosure.
For these reasons, we conclude that, pursuant to section 11(b)(2) of the
STOCK Act, the requirements for disclosure in section 105(b)(2) do not
apply during the interim period when reports are made available on agen-
cy websites under section 11(a).
B.
Because section 105(b)(2) does not apply, agencies have no statutory
obligation to condition a requester’s access to reports made available
under section 11(a) on the requester’s provision of the information speci-
fied in section 105(b)(2). Nonetheless, the fact that agencies are not
obligated to impose that condition does not mean that agencies are pro-
hibited from imposing the condition through the exercise of discretion if
they otherwise have the authority to do so. And, in our view, agencies
have the authority, subject to the direction of OGE, to require that indi-
viduals seeking access to financial disclosure reports during the period
governed by section 11(a) of the STOCK Act provide basic identifying
information like the items specified in section 105(b)(2).
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Requiring Identifying Information for Access to Financial Disclosure Reports
As an initial matter, we believe that section 11(a) of the STOCK Act,
in conjunction with section 402 of the EIGA, authorizes the agencies that
receive financial disclosure reports from their officers and employees to
establish, under the direction of OGE, appropriate procedures governing
how the reports are made available on agency websites. Section 11(a)
imposes on the President the obligation to “ensure” that the reports are
“made available to the public on the official websites of the respective
executive branch agencies.” STOCK Act § 11(a)(1), 126 Stat. at 298. The
President could not fulfill that obligation unless the Executive Branch had
authority to develop and implement appropriate procedures to make the
reports available. Section 11(a) thus necessarily implies that the Executive
Branch has that authority.
The STOCK Act does not assign the authority to establish procedures
for complying with section 11(a) to any specific component of the Execu-
tive Branch. The nature of the obligation, however, together with EIGA
section 402, makes clear that the authority lies with the various Executive
Branch agencies that receive the reports, subject to the direction of OGE.
Because the reports must be made available on the websites of the “re-
spective executive branch agencies,” those agencies are logical reposito-
ries of the authority to establish procedures governing how the reports are
made available. Moreover, the EIGA confirms that each agency generally
has the authority to establish “procedures relating to how the agency is to
. . . make publicly available[] financial disclosure statements filed by any
of its officers or employees.” 5 U.S.C. app. § 402(d)(1). The EIGA makes
clear, however, that OGE also has authority to “establish[] procedures”
governing the “public availability” of financial disclosure reports, id.
§ 402(b)(1), and that OGE may use that authority to superintend the
procedures established by the agencies and ensure their “conformance
with all applicable requirements,” including requirements prescribed by
OGE, id. § 402(d)(2).
The procedures governing how reports are made available on agency
websites may incorporate reasonable prerequisites to or limitations on
access, provided that those prerequisites are consistent with section
11(a)’s command that the reports be “made available,” as well as with any
other applicable legal requirements. See generally Chevron, U.S.A., Inc. v.
Nat. Res. Def. Council, Inc., 467 U.S. 837, 843–45 (1984) (explaining
that, when an agency has been delegated authority to fill a gap in a statute,
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36 Op. O.L.C. 198 (2012)
the agency’s action is controlling if Congress has not addressed the point
at issue and the agency’s action is reasonable); e.g., United States ex rel.
Touhy v. Regan, 340 U.S. 462, 468 (1951) (holding that a statute authoriz-
ing the Attorney General to prescribe regulations for “the custody, use,
and preservation of the records, papers, and property” of the Department
of Justice, 5 U.S.C. § 22 (1946), empowered the Attorney General to
promulgate a regulation that reserved to himself the decision whether to
release documents in response to a subpoena).
C.
1.
In our view, requiring prospective viewers to provide basic infor-
mation, similar to the information listed in EIGA section 105(b)(2),
before accessing reports is a reasonable limitation consistent with
section 11(a)’s general command that the reports be “made available to
the public” on agency websites. STOCK Act § 11(a)(1), 126 Stat. at
298. “Available” means “accessible” or “obtainable.” See American
Heritage Dictionary at 123 (definitions 1 and 2); Webster’s Dictionary
at 150 (definition 4). Thus, reports are made “available” if prospective
viewers may access or obtain the reports upon presentation of basic
identifying information.
Significantly, section 105 of the EIGA supports the conclusion that re-
quiring prospective viewers to provide information like that specified in
section 105(b)(2) before they may access reports is consistent with section
11(a)’s command that reports be “made available to the public.” Section
105’s public availability requirement is phrased in virtually identical
language, see 5 U.S.C. app. § 105(a) (stating that each agency shall “make
available to the public” each report filed with the agency); yet section
105(b)(2) requires an individual to provide the specified information as a
precondition to inspecting or copying a report. See id. § 105(b)(2). Thus,
section 105 demonstrates that Congress considered a requirement that
prospective viewers provide such information before accessing reports to
be consistent with a command that reports be “made available to the
public.”
Moreover, when Congress enacts a new statute using language that has
a settled meaning, the new statute is generally construed to embody that
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settled meaning. See Evans v. United States, 504 U.S. 255, 260 n.3 (1992)
(“[A]s Justice Frankfurter advised, ‘if a word is obviously transplanted
from another legal source, whether the common law or other legislation, it
brings the old soil with it.’” (quoting Felix Frankfurter, Some Reflections
on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947))). Because
section 11(a) incorporates language that was understood to be consistent
with a requirement that prospective viewers provide basic identifying
information before accessing reports, section 11(a) also should be con-
strued as consistent with that requirement.
Other statutory provisions confirm that if Congress had intended to
preclude OGE and other agencies from requiring prospective viewers to
provide basic identifying information before accessing reports made
available under section 11(a), Congress would have done so explicitly.
For example, section 11(b)(2) of the STOCK Act states that “[n]o login
shall be required to search or sort the data contained in the reports made
available by this subsection.” 126 Stat. at 299. As we explain in more
detail below, that provision does not address whether identifying in-
formation may be required to access reports made available under
section 11(a), because the provision applies only to reports made avail-
able under section 11(b). See infra pp. 214–216. The provision strongly
suggests, however, that a requirement that prospective viewers provide
identifying information is permissible in this context absent an express
statement to the contrary. Otherwise there would have been no need for
Congress to add the provision in order to preclude OGE and other
agencies from requiring a login to search or sort reports made available
under section 11(b). See Corley v. United States, 556 U.S. 303, 314
(2009) (statutes should be construed to avoid rendering any of their
provisions superfluous).
In other statutes as well, where Congress has intended to prohibit a re-
quirement that users provide identifying information before availing
themselves of a feature on agency websites, Congress has made that
prohibition explicit. Thus, the Inspector General Reform Act of 2008,
which requires the website of the Office of the Inspector General of each
agency to include a link that allows individuals to report fraud, waste, or
abuse, expressly provides that individuals using the links “shall not be
required to provide personally identifying information.” Pub. L. No. 110-
409, sec. 13(a), § 8L(b)(2)(A), 122 Stat. 4302, 4316.
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36 Op. O.L.C. 198 (2012)
Finally, a procedure under which prospective viewers must provide
basic identifying information and acknowledge the legal prohibitions on
obtaining and using reports is a reasonable way to achieve the purposes of
section 11(a) of the STOCK Act, consistent with the limitations on public
access to financial disclosure reports imposed by the EIGA. Although
section 11(a) of the STOCK Act aims to enhance public access to finan-
cial disclosure reports by making those reports accessible via the Internet,
see, e.g., 158 Cong. Rec. S195 (daily ed. Jan. 31, 2012) (statement of Sen.
Begich); id. at S196 (statement of Sen. Lieberman); id. at S1979 (daily ed.
Mar. 22, 2012) (statement of Sen. Lieberman), section 11(a) and the rest
of the STOCK Act leave in place the restrictions on obtaining and using
reports imposed by EIGA section 105(c)(1). Conditioning access to re-
ports via agency websites on the provision of basic information, including
an acknowledgement of those restrictions, would facilitate enforcement of
the restrictions without impairing section 11(a)’s goal of making reports
available via the Internet during the interim period before implementation
of the permanent disclosure system required by section 11(b). 3
For these reasons, we believe that a procedure requiring prospective
viewers to provide basic identifying information, such as the items listed
in EIGA section 105(b)(2), before accessing disclosure reports via agency
websites would be a reasonable means of implementing section 11(a) of
the STOCK Act.
2.
An argument can be constructed, based on the legislative history of the
EIGA, that such a procedure is not a permissible method for implement-
ing section 11(a). In our view, however, that argument is not persuasive.
3 As we explain in Part II.D, Congress imposed limitations on the collection of identi-
fying information from prospective users during the second stage of Internet access, once
a permanent database (with search, sort, and download capability) is established on the
OGE website. Nonetheless, requiring identifying information during the first stage (before
establishment of the permanent OGE database) would facilitate a smooth transition to the
second stage by providing enhanced protections against potential misuse of the reports
while the President determines whether to exempt from the disclosure requirements
certain filers who may be particularly vulnerable to misuse of their reports. See infra pp.
214–216.
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The versions of the EIGA originally passed by the Senate and con-
sidered on the floor of the House of Representatives contained provi-
sions, similar to current section 105(b)(2), that required prospective
viewers to provide basic identifying information before accessing
reports. See S. 555, 95th Cong. § 305(c) (as passed by Senate, June 27,
1977); 124 Cong. Rec. 30,434, 30,436 (1978) (H.R. 13850, 95th Cong.
§ 104(c) (1978)) (considered as substitute to H.R. 1, 95th Cong. (1978))
(requirement with respect to reports by congressional officials); 124
Cong. Rec. at 30,468 (H.R. 13850, 95th Cong. § 205(b)(1)) (require-
ment with respect to reports by executive officials); 124 Cong. Rec. at
32,028 (H.R. 13850, 95th Cong. § 305(b)(1)) (requirement with respect
to reports by judicial officials). Those provisions were, however, re-
moved before final passage of the EIGA. See 124 Cong. Rec. at 30,447
(amendment, offered by Rep. Frenzel, striking the requirement with
respect to reports by congressional officials); H.R. Rep. No. 95-1756, at
24–25, 37–38 (1978) (Conf. Rep.) (Conference Committee agreement
removing the requirements with respect to reports by Executive Branch
and judicial employees); Ethics in Government Act of 1978, Pub. L. 95-
521, §§ 104, 205, 305, 92 Stat. 1824, 1832–33, 1846–47, 1859 (legisla-
tion as enacted). In offering the amendment to strike the requirement
with respect to reports by congressional officials, Representative Fren-
zel stated that the amendment revised the section governing public
availability of reports “so that a person requesting” access to a report
“may not or need not be required to leave his name and organization.”
124 Cong. Rec. at 30,447.
The following year, the Director of OGE testified before a congres-
sional subcommittee that, based on this drafting history, OGE did not
believe that it had authority to require an individual to provide his name
as a condition of receiving a report. See Financial Disclosure Provisions
of the Ethics in Gov’t Act of 1978: Hearing on H.R. 2805 Before the
Subcomm. on Human Res. of the H. Comm. on the Post Office & Civil
Serv., 96th Cong. 9–10 (1979). Congress subsequently amended the
EIGA to add requirements that prospective viewers provide basic identi-
fying information before accessing reports, see Act of June 13, 1979,
Pub. L. No. 96-19, § 8, 93 Stat. 37, 41–42, and those requirements were
consolidated in section 105(b)(2) as part of the EIGA’s reorganization in
1989, see supra note 2; 1989 Act, sec. 202, § 105, 103 Stat. at 1738.
211
36 Op. O.L.C. 198 (2012)
Based on this history, it could be argued that (1) the EIGA, as original-
ly enacted (without section 105(b)(2)), did not permit OGE and other
agencies to require prospective viewers of reports to provide identifying
information; (2) section 11(b)(2) of the STOCK Act, by declaring that
section 105(b)(2) does not apply to reports made available under section
11(a), effectively restores the EIGA as originally enacted for reports made
available under section 11(a); and (3) OGE and other agencies therefore
do not have authority to condition access to reports under section 11(a) on
the requester’s providing basic identifying information. We believe,
however, that this argument has several fatal defects.
First, it is not accurate to view section 11(b)(2) as effectively restoring
the EIGA as originally enacted. As we explained above, section 11(b)(2)
does not repeal section 105(b)(2). Section 105(b)(2) remains a part of the
EIGA and continues to apply at least when reports are accessed through
means other than the Internet access mandated by section 11. See supra
p. 203. And, as described above, section 105(b)(2) supports the conclu-
sion that OGE and other agencies may require prospective viewers of
reports under section 11(a) to provide identifying information. See supra
p. 208. In addition, section 11(b)(2) contains other provisions besides the
declaration that section 105(b)(2) does not apply to reports made available
under section 11(a). As explained above, one of those other provisions,
the login prohibition for searching and sorting reports made available
under section 11(b), also supports the permissibility of a requirement that
prospective viewers provide identifying information before viewing
reports under section 11(a). See supra p. 209.
Second, we do not believe that the legislative history establishes that
the EIGA as originally enacted prohibited OGE and other agencies from
conditioning access to Executive Branch financial disclosure reports on
the requester’s providing basic identifying information. The provisions
that were removed from the EIGA during the legislative process would
have required agencies to impose that condition. Congress’s decision not
to require agencies to impose the condition does not establish that Con-
gress also intended to prohibit OGE and other agencies from imposing the
condition as an exercise of their discretion to establish procedures imple-
menting the public availability requirement. The floor statement by Rep-
resentative Frenzel suggests that he may have believed that the deletion of
the requirement meant that the condition could not be imposed. But floor
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Requiring Identifying Information for Access to Financial Disclosure Reports
statements, even by amendment sponsors, are of limited utility in inter-
preting legislative provisions. See Consumer Prods. Safety Comm’n v.
GTE Sylvania, Inc., 447 U.S. 102, 118 (1980) (“[O]rdinarily even the
contemporaneous remarks of a single legislator who sponsors a bill are
not controlling in analyzing legislative history.”); Zuber v. Allen, 396 U.S.
168, 186 (1969) (“Floor debates reflect at best the understanding of indi-
vidual Congressmen.”). Moreover, Representative Frenzel’s statement
concerned only the deletion of the requirement with respect to reports
filed by congressional officials. The requirement that access to Executive
Branch reports be conditioned on the requester’s providing identifying
information was retained in the bill passed by the House, see 124 Cong.
Rec. at 32,024, 32,028 (S. 555, 95th Cong. § 205(b)(1) (Sept. 27, 1978)),
and was deleted in the House-Senate Conference. The Conference Report
does not discuss the deletion and gives no indication that the conferees
understood the deletion to preclude OGE and other agencies from decid-
ing, in their discretion, to condition access to Executive Branch reports on
the provision of identifying information. See H.R. Rep. No. 95-1756.
As noted above, the Director of OGE later testified that he interpreted
this legislative history to preclude any requirement that prospective view-
ers provide identifying information, and Congress in 1979 subsequently
added that requirement to the EIGA. Those events, however, constitute, at
most, subsequent legislative history about the meaning of the EIGA as
originally enacted, and “‘subsequent legislative history is a “hazardous
basis for inferring the intent of an earlier” Congress.’” Jones v. United
States, 526 U.S. 227, 238 (1999) (quoting Pension Benefit Guar. Corp. v.
LTV Corp., 496 U.S. 633, 650 (1990) (quoting, in turn, United States v.
Price, 361 U.S. 304, 313 (1960))). Moreover, the 1979 enactment estab-
lishes only that Congress wanted to require that prospective viewers
provide identifying information; the 1979 enactment does not indicate
whether Congress believed that agencies could have imposed the require-
ment on their own volition.
Finally, the argument based on this legislative history turns on Con-
gress’s decision not to include a particular provision in the EIGA as
originally enacted. The argument is not anchored in the statutory text that
was in fact enacted. And “courts have no authority to enforce [a] prin-
cipl[e] gleaned solely from legislative history that has no statutory refer-
ence point.” Shannon v. United States, 512 U.S. 573, 584 (1994) (quota-
213
36 Op. O.L.C. 198 (2012)
tion omitted, brackets in original). This aspect of the legislative history of
the EIGA thus does not alter our conclusion that conditioning access to
disclosure reports on the requester’s providing basic identifying infor-
mation, similar to the information listed in EIGA section 105(b)(2), would
be a reasonable means of implementing section 11(a) of the STOCK Act.
D.
Even though that procedure would be a reasonable means of imple-
menting section 11(a) of the STOCK Act, the procedure would not be
permissible if some other provision of the STOCK Act or the EIGA
prohibited it. The only provision of either statute that could be construed
to contain such a prohibition, however, is the first sentence in section
11(b)(2) of the STOCK Act, and the text of that provision is best read not
to contain such a prohibition.
As discussed above, the provision states that “[n]o login shall be re-
quired to search or sort the data contained in the reports made available
by this subsection.” STOCK Act § 11(b)(2), 126 Stat. at 299 (emphasis
added). The prohibition on requiring a “login” to “search or sort” the
data in the reports is, in our view, tantamount to a prohibition on requir-
ing prospective viewers to provide identifying information before view-
ing the reports. The ordinary meaning of “login” is “[t]he process of
identifying oneself to a computer, usually by entering one’s username
and password.” American Heritage Dictionary at 1029; accord Random
House Dictionary of the English Language 1130 (2d ed. 1987) (defini-
tion 17a of “log”). A prohibition on requiring a prospective user to
provide identifying information before “search[ing] or sort[ing]” data
necessarily includes a prohibition on requiring a prospective user to
provide such information before taking the lesser step of viewing the
data.
Nonetheless, we believe that the login prohibition applies only when
prospective viewers seek access to a financial disclosure report under the
second stage of the process mandated by section 11—the permanent
public disclosure system required by subsection (b). The login prohibition
does not apply when prospective viewers seek access to reports during the
first stage, when reports are accessible via websites pursuant to subsection
(a). The login prohibition, by its plain terms, applies only to reports
214
Requiring Identifying Information for Access to Financial Disclosure Reports
“made available by this subsection.” STOCK Act § 11(b)(2), 126 Stat. at
299. The phrase “this subsection” refers to subsection (b) of section 11,
not section 11 as a whole. As explained above, Congress generally uses
the term “subsection” to refer to a first-level subdivision of a statutory
section, rather than the section as a whole, and Congress generally ad-
hered to that practice in the STOCK Act, including in section 11. See
supra p. 204.
Although, as noted above, Congress may sometimes make drafting er-
rors and use the term “subsection” when it actually means “section,” again
we do not believe that Congress erred here. On the contrary, as set forth
above, Congress carefully adhered to the distinction between the terms
“section” and “subsection” throughout the STOCK Act. See supra p. 204.
Moreover, Congress could reasonably have concluded that OGE and other
agencies should have discretion to require that prospective users provide
identifying information in order to access financial disclosure reports
during the eighteen-month period before establishment of the permanent
database required by subsection (b). As members of Congress recognized,
broader public access to financial disclosure reports increases the risk that
the officers and employees who file those reports may be subject to mis-
use of their personal information for unlawful or other nefarious purposes.
See, e.g., 158 Cong. Rec. S1979 (daily ed. Mar. 22, 2012) (statement of
Sen. Levin). Requiring prospective viewers to supply identifying infor-
mation and to acknowledge the restrictions on using reports provides
some deterrent against misuse of the information in the reports. Allowing
OGE and other agencies to maintain that deterrent during the eighteen-
month period before establishment of the permanent database serves a
valuable purpose: During that time, the President could evaluate whether
some categories of officers and employees may be particularly vulnerable
to misuse of their information, see id. (statement of Sen. Levin) (suggest-
ing that law enforcement, military, and intelligence officers may be par-
ticularly vulnerable), and, if necessary, invoke statutory provisions that
allow him to exempt from public disclosure reports filed by certain offic-
ers and employees, see, e.g., 5 U.S.C. app. § 105(a)(1) (allowing the
President to exempt from public disclosure reports filed by individuals
engaged in intelligence activities); 158 Cong. Rec. S1980 (daily ed. Mar.
22, 2012) (colloquy between Senators Reid and Lieberman stating that
this exemption authority applies to section 11 of the STOCK Act).
215
36 Op. O.L.C. 198 (2012)
For these reasons, we conclude that the login prohibition in the first
sentence of section 11(b)(2) does not prohibit OGE and other agencies
from requiring that prospective viewers provide basic identifying infor-
mation before they may access financial disclosure reports made available
during the interim period governed by subsection (a).
III.
In sum, a procedure under which prospective viewers are required to
provide information similar to that described in section 105(b)(2) of the
EIGA in order to access financial disclosure reports made available under
section 11(a) of the STOCK Act is consistent with both the STOCK Act
and the EIGA. In our judgment, this procedure may be implemented by
Executive Branch agencies at the direction of OGE pursuant to its authori-
ty under section 402 of the EIGA to prescribe procedures governing the
public availability of financial disclosure reports.
VIRGINIA A. SEITZ
Assistant Attorney General
Office of Legal Counsel
216