U n it e d States G o v e r n m e n t FORM C-1151 ( l- K )

R a il r o a d R e t ir e m e n t Bo a r d

M e m o r a n d u m April 15,2004

L-2004-08

TO : Ronald Russo

Director of Policy and Systems 

Office of Programs

FROM : Steven A. Bartholow 

General Counsel o

SUBJECT : Fees for search, transcription and copying of compensation

This is in reply to your request for guidance regarding charging the fees which 

the agency may assess for costs incurred in the search, and production copying 

of documents. Additional conversations with your staff and the Privacy Act 

Officer of the Board, and the background material they have furnished indicate 

your request specifically concerns the agency's authority to collect fees for the 

search and production of copies and transcriptions of microfilm records of an 

employee's service and compensation as reported by a railroad employer, 

when requested by either counsel for the subject employee, or by counsel for 

the opposing side, for use as evidence in litigation to which the railroad 

employee is a party. In both instances, the requesting party has furnished 

written authorization by the employee for disclosure.

Disclosure of information concerning individuals which is in the agency's 

possession is governed by several statutes. It is most appropriate to begin with 

provisions in the benefit statutes which establish the Railroad Retirement Board, 

and which the Board administers. Section 12(d) of the Railroad Unemployment 

Insurance Act as amended, which is incorporated into the Railroad Retirement 

Act by section 7(b)(3) of that Act, provides, in pertinent part, as follows:

Information obtained by the Board in connection with the administration of 

this Act shall not be revealed or open to inspection nor be published in any 

manner revealing an employee's identity: Provided, however, that * * * (ji) 

the Board may disclose such information in cases in which the Board finds

records in litigation
that such disclosure is clearly in furtherance of the interest of the employee 

or his estate; (iii) any claimant of benefits under this Act shall, upon his 

request, be supplied with information from the Board's records pertaining to 

his claim and (iv) the Board shall disclose to any base-year employer of a 

claim ant for benefits any information, including information as to the 

claim ant’s identity, that is necessary or appropriate to notify such employer 

of the claim for benefits or to full and fair participation by such employer in 

an appeal, hearing or other proceeding relative to the claim pursuant to 

* * * this Act. * * *

Section 12(n) of the RUIA, also incorporated by section 7(b)(3) of the RRA, and 

regulations of the Board, together allow disclosure of medical records to only 

the subject individual. See 20 CFR 200.5(e). Subject to these limitations, section 

12(d) of the RUIA provides that, "the Board may furnish such information to any 

. person, or organization upon payment by such person or organization to the Board 

of the cost incurred by the Board by reason thereof * *

As a Federal agency, information in the Board’s possession is also subject to the 

Privacy Act (5 U.S.C. §□ 552a) and the Freedom of Information Act (5 U.S.C. 

§552). The Privacy Act generally prohibits disclosure of information concerning 

individuals to third parties, while the Freedom of Information Act (FOIA) generally 

requires disclosure of any documents or information. Both Acts specify 

exceptions which allow disclosure in the case of the Privacy Act, or prohibit 

disclosure in the case of the FOIA. In particular, the Privacy Act generally 

requires agencies to furnish individuals documents concerning themselves 

(5 U.S.C. § 552a(d)), while the FOIA allows agencies to withhold from third party 

requesters information which would invade an individual's privacy (5 U.S.C. 

§ 552(b)(6)).

Both the Privacy Act and the FOIA also specify conditions under which agencies 

may charge fees in connection with production of information. The FOIA, as 

amended by the Freedom of Information Reform Act of 1986 (Public Law 99-570, 

100 Stat. 3207-48), provides that "each agency shall promulgate regulations * * * 

specifying the schedule of fees applicable to the processing of request's under 

this section * * * ." See 5 U.S.C.-§ 552(a)(4)(A)(i). Agencies are required to 

differentiate in these regulations between fees charged for information 

requested "for commercial use"; “for scholarly or scientific research" or by "a 

representative of the news media"; and for all others. Id. at 552(a) (4) (A) (ii).
Section 552(a) (4) (A)(i) also requires the Director of the Office of Management 

and Budget (OMB) to issue guidelines for all agencies. The Director of OMB 

issued final guidelines for agencies on March 27, 1987 (Uniform Freedom of 

Information Act Fee Schedule and Guidelines. 52 Fed. Rea. 10012). In that 

document, the Director noted with respect to fees assessed for requests for 

commercial uses that:

* * * Congress intended to distinguish between requesters whose use of 

the information was for a use that furthered their business interests, as 

opposed to a use that in some way benefited the public. The [FOIA 

Reform Act] amendment shifts some of the burden for paying for the FOIA 

to the former group and lessens it for the latter.

As opposed to the other fee categories created by the amendment, 

inclusion in this one is determined not by the identity of the requester, but 

the use to which he or she will put the information obtained. * * * . 59 Fed. 

Rea, at 10013.’

The FOIA Reform Act also added clause 552(a) (4) (A) (vi), which provides 

regarding the calculation of fees assessed for search, review and reproduction 

that, “ Nothing in this subparagraph shall supercede fees chargeable under a 

statute specifically providing for the level of fees for particular types of records." 

In Board Order 96-112, issued May 15, 1996, the members of the Board adopted 

an amendment to section 200.4(g) (2)(v) which altered the fees assessed for 

requests not classified as commercial, news media or scholarly research, or from 

a subject individual pursuant to the Privacy Act. In the analysis portion of that 

document as adopted by the Board and published at 61 Fed. Rea. 25390 (May 

21, 1996), the Board relied upon its authority to set fees under 12(d) as a statute 

providing fees for particular records under 552(a)(4)(vi). I also note that the 

Director of OMB explicitly declined to issue a government-wide fee schedule 

because each agency must set fees based upon that agency's costs. Uniform

' Case law suggests that an inquiry like those which prompted your request for this 

memorandum, i.e., by attorneys or their agents for information to be used as evidence 

in a private lawsuit for damages, would be considered to be a commercial use. See, 

Rozet v. Department of Housing and Urban Development, 59 F. Supp. 2d 55 (D.D.C., 

1999).
Freedom of Information Act Fee Schedule and Guidelines, supra, at 10015. In 

view of the Board's determination of its fee authority in Board Order 96-112 and 

the general directions given Federal agencies by the Director of OMB, it is my 

opinion, therefore that the agency has authority to determine the fees to be 

assessed for search, transcription and copying of compensation records for use 

in litigation, if the costs upon which the calculation of such fees is based are 

reasonable.

Finally,2 as mentioned above the Board must under the Privacy Act provide 

information from its records to individuals who are the subject of that 

information. Section 552a(f)(5) of the Privacy Act allows agencies to 

promulgate rules which "establish fees to be charged, if any, to any individual 

for making copies of his record, excluding the cost of any search for and review 

of the record." In accord with section 552a(f)(5), the Board has issued section 

200.4(g)(iv), which states that the Board will furnish the subject individual copies 

of documents in the Board's records at the cost of reproduction. The basis for or 

amount of fees assessed in responding to Privacy Act requests therefore cannot 

be altered without amendment of this regulation. Any proposals to change the 

basis for assessment of fees under the Privacy Act should consider the lack of 

any provision in the Privacy Act for document fees under other laws parallel to 

section 552(a) (4) (vi) of the FOIA, and the civil penalties imposed upon agencies 

which fail to comply with the Act in such a way as to cause an adverse impact 

on the individual. See 5 U.S.C. § 552a(g)(1).

KTBIank:cmw

l:\wp7data\MISC\Fees compensation record searches628.ktb.doc

2 In addition to information collected directly by the Board, the agency receives 

earnings information from the Social Security Administration which is subject to 

restrictions on disclosure imposed on taxpayer return information imposed by section 

6103 of the Internal Revenue Code (26 U.S.C. § 6103) The Code allows disclosure of 

return information to the taxpayer or to any third party designated by the taxpayer (26 

U.S.C. §6103(c). The Code also allows that “A reasonable fee may be prescribed for 

furnishing such return information." 26 U.S.C. § 6103(p)(2)(B). Restrictions on and fees 

assessed for furnishing tax return information are beyond the scope of this 

memorandum.