National Archives Access to Taxpayer Information

N either the Secretary o f the Treasury nor th e President can permit the National Archives and Records 

A dm inistration to inspect tax returns o r return inform ation pursuant to 44 U.S.C. § 2906(a)(2) for 

purposes o f appraising the records.

May 28, 1997

M e m o r a n d u m O p in io n fo r t h e A c t in g A s s o c ia t e A t t o r n e y G e n e r a l

You have asked whether we concur in the conclusion of the Civil and Tax 

Divisions that neither “ [t]he Secretary of the Treasury [n]or the President can[] 

permit [the National Archives and Records Administration (“ NARA” )] to inspect 

[tax] returns or return information pursuant to 44 U.S.C. § 2906(a)(2) for purposes 

of appraising the records.” 1 For the reasons set forth below, we do concur.

Section 2906(a)(2) provides that “ [r]ecords, the use of which is restricted by 

law or for reasons of national security or the public interest, shall be inspected 

[by NARA], in accordance with regulations promulgated by the Administrator [of 

General Services] and the Archivist, subject to the approval of the head of the 

agency concerned or of the President.” Under the Internal Revenue Code, title 

26 of the U.S. Code, tax returns and tax return information “ shall be confidential” 

and may not be disclosed by the Internal Revenue Service (“ IRS” ) “ except as 

authorized by [title 26].” 26 U.S.C. § 6103(a) (Supp. II 1996). Because taxpayer 

information is thus “ restricted by law ,” the question presented turns on whether 

the Secretary of the Treasury or the President is authorized by § 2906(a)(2) to 

approve NARA access to such information, notwithstanding §6103’s prohibition 

on disclosure except where authorized by the Internal Revenue Code. There are 

both narrow and broad bases for concluding that they lack such authority.

1. The narrow basis relies on the limited scope of § 2906(a)(2) and therefore 

does not even involve consideration of the impact of § 6103. Section 2906(a)(2) 

is not a freestanding provision applicable to all activities undertaken by NARA 

under title 44. Rather, it is contained within § 2906, which is limited to inspections 

of agency records that NARA undertakes under chapter 29 of that title. These 

inspections are not for NARA’s own appraisal purposes but rather are for the 

purpose of providing agencies with recommendations on their records management 

practices. The first provision of § 2906 states as follows:

In carrying out their respective duties and responsibilities under this

chapter, the Administrator o f General Services and the Archivist 

(or the designee of either) may inspect the records or the records

1 Memorandum for the Acting Associate Attorney General, from Loretta C Argrett, Assistant Attorney General, 

Tax Division, and Frank W Hunger, Assistant Attorney General, Civil Division, Re- Tax Analysis, et al. v. IRS,

et al. No. 1 97CV260 JLG (D.D C.) at 1 (Mar 28, 1997) (attaching separate memoranda from each component 

providing rationale for this conclusion).

92
National Archives Access to Taxpayer Information

management practices and programs of any Federal agency solely

for the purpose o f rendering recommendations fo r the improvement

of records management practices and programs. Officers and 

employees of such agencies shall cooperate fully in such inspections, subject to the provisions of paragraphs (2) and (3) of this 

subsection.

44 U.S.C. § 2906(a)(1) (1994) (emphasis added).

The underscored language indicates both that the NARA inspection authority 

under § 2906(a)(1) is limited to inspections of agency-records under chapter 29 

and that it is further limited by the special rule on statutorily restricted records 

set forth in § 2906(a)(2). NARA’s mission under chapter 29 is to “ provide guidance and assistance to Federal agencies with respect to ensuring adequate and 

proper documentation of the policies and transactions of the Federal Government 

and ensuring proper records disposition.” Id. § 2904(a) (1994). To assist NARA 

in performing this function, § 2906(a)(1) authorizes NARA to “ inspect” agency 

records “ solely for the purpose of rendering recommendations for the improvement of records management practices and programs.” Section 2906(a)(2) is a 

limitation on the § 2906(a)(1) authority, providing that where such inspections are 

of statutorily restricted information, they may take place only with the approval 

of the head of the agency concerned or the President.

The NARA appraisal function under chapter 33 is separate from its chapter 

29 function of inspecting agency records in order to advise the agencies on their 

records management practices. Appraisal is the function that NARA undertakes 

in order to make its own determinations (in contrast to making recommendations 

to agencies) on whether agency records may be destroyed. Under chapter 33, 

NARA

examine[s] the lists and schedules [of records agencies propose for 

destruction] submitted to [NARA] under section 3303 of this title.

If [NARA] determines that any of the records listed in a list or 

schedule submitted to [it] do not, or will not after the lapse of the 

period specified, have sufficient administrative, legal, research, or 

other value to warrant their continued preservation by the Government, [it] may . . . (1) notify the agency to that effect; and (2) 

empower the agency to dispose of those records ....

44 U.S.C. §3303a(a) (1994) (emphasis added). Underscoring the decisionmaking 

authority NARA has under chapter 33, the statute further provides that these 

“ [authorizations granted [by NARA to agencies] shall be mandatory.” Id.

§ 3303a(b).

Even if § 2906 did not by its terms limit its application to chapter 29, we believe 

that it would be difficult to argue that the § 2906(a)(2) authority is available with

93
Opinions o f the Office o f Legal Counsel in Volume 21

respect to the chapter 33 authority. W e have not identified any provision in chapter 

33 — or anywhere else in title 44 — that links the chapter 29 inspection authority 

with the chapter 33 appraisal authority. For example, the provision granting 

NARA its appraisal authority is written in terms of “ examin[ing] lists and schedules,” not inspecting the records identified on these lists and schedules. See id.

§ 3303a(a).

We recognize, however, that NARA takes the view that its authorities under 

chapters 29 and 33 are intertwined. See Letter for John Dwyer, Acting Associate 

Attorney General, from Elizabeth A. Pugh, General Counsel, NARA, Re:

Appraisal o f IRS records containing tax return and return information at 1 (Mar. 

21, 1997) (“ NARA’s paramount concern is to fulfill its statutory obligation to 

appraise and approve the disposition of IRS’s records. 44 U.S.C. §§2906; 3303, 

3303a.” ). Although it may be that there is sufficient past practice by NARA to 

constitute an administrative construction of title 44 to this effect, the memoranda 

that have been submitted to you do not address this point. Nonetheless, we have 

proceeded to assume, for the purpose of the following discussion, that the 

§ 2906(a)(2) authority is available for appraisal purposes, so that we could consider 

the broader question of the interaction of that provision with § 6103 of the Internal 

Revenue Code.

2. Our broader basis for concurring in the conclusion reached by the Civil and 

Tax Divisions is the longstanding position of this Office that the general access 

provisions of title 44 do not override the subsequently enacted, more specific 

prohibition of §6103.2 We have written several memoranda on the relationship 

between NARA’s access rights under title 44 and the subsequently enacted disclosure prohibition of §6103.3 We adhere to our established position, which was 

summarized in the most recent of these memoranda:

We have thoroughly reexamined [the first two] memoranda, and 

we concur in their conclusion that the statutory provisions generally

2Section 6103 was adopted in 1976, as part of the Tax Reform Act of 1976, Pub L. No 94-455, § 1202, 90 

Stat 1520, 1667. The authority to inspect statutonly restricted records contained in § 2906(a)(2) was first provided 

in 1950, by the Federal Records Act of 1950, Pub L No 754, ch 849, § 505(a), 64 Stat 578, 585. As first enacted, 

the inspection could take place only with the approval of the head of the agency possessing the records. Id The 

Federal Records Management Amendments of 1976 added the President as an alternative source of approval Pub 

L No 94-575, § 2(a)(3), 90 Stat. 2723, 2725 This was done in order to provide “ for a clearly defined process 

in those instances where the [Archivist] and the agency head cannot agree on inspection procedures ” S. Rep No 

94-1326, at 10 (1976), reprinted in 1976 USCCAN 6150, 6158 Thus, the addition of the President did not 

expand the substantive reach of § 2906(a)(2) It merely gave the approval authority under that provision to an additional person, which did not amount to a significant change because the President already possessed the authority 

to direct the Archivist and agency heads in their application of this provision, based on his constitutional authority 

to supervise and guide executive branch officials

3 See Transfer o f Watergate Special Prosecution Force Records to the National Archives— Income Tax Information— 26 USC. §6I03(a), I Op O LC 216 (1977), Memorandum for Alice Daniel, Assistant Attorney General, 

Civil Division, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re. Applicability

of the Non-Disclosure Provisions o f the Tax Reform Act (Nov 7, 1980), Memorandum for Richard K Willard, 

Assistant Attorney General, Civil Division, from Samuel A. Alito, J r , Deputy Assistant Attorney General, Office 

of Legal Counsel, Re• Authority o f the FBI to Transfer Restricted Records to the National Archives and Records

Administration (Feb 27, 1986) (“ Alito Memorandum” ).

94
National Archives Access to Taxpayer Information

empowering the Archivist to obtain . . . records that are subject 

to statutory restrictions . . . do not reach tax returns and tax return 

information, which are strictly protected by the Tax Reform Act 

of 1976, 26 U.S.C. 6103. The Tax Reform Act expressly and 

unequivocally prohibited the disclosure of tax returns or tax return 

information except as authorized by that Act (26 U.S.C. 6103(a)). .

The legislative history of the Act makes clear that these provisions 

expressed a strong congressional intent to maintain very strict privacy for such information. . . . Because neither the statutory language nor legislative history of the Act provides any indication that 

Congress intended to allow the Archives to obtain such information 

. . ., we continue to believe that this specific, subsequent enactment 

must take precedence over the previously enacted and more general 

terms of the provisions relating to the Archivist. We must assume 

that the members of Congress who voted for the Tax Reform Act 

understood it to mean what the plain language of section 6103(a) 

says, viz., that tax returns and tax return information would be disclosed only under the carefully prescribed conditions set out in the 

Act. We think it is unrealistic to assume that Congress intended 

(but neglected to mention) that such materials would also be subject 

to disclosure under the Archives provisions.

Alito Memorandum at 1-2 (citations and footnote omitted).

We are aware that there is dictum in a D.C. Circuit decision that suggests that 

the § 2906(a)(2) authority may override §6103 because the contrary view “ would 

effectively nullify” the provision. See American Friends Serv. Comm. v. Webster,

720 F.2d 29, 76 n.75 (D.C. Cir. 1983). However, we adhere to our previously 

stated position that this dictum is incorrect. See Alito Memorandum at 2-3 

(“ because [the D.C. Circuit’s] discussion is dictum, arose in a different context, 

and appears to us to be incorrect, we do not believe that it provides a sufficient 

basis for agreeing to a plan which, in our view, would violate important privacy 

rights that Congress wished to protect” ). The Civil Division’s memorandum contains a persuasive discussion of how giving effect to §6103 does not render 

§ 2906(a)(2) a nullity and how the D.C. Circuit’s view fails to give effect to 

§ 2906(b), which requires compliance “ with all other Federal laws.” 44 U.S.C. 

§ 2906(b). See Memorandum for the Acting Associate Attorney General, from 

Frank W. Hunger, Assistant Attorney General, Civil Division, Re: Tax Analysts,

eta l. v. IRS, et al., No. 1.97CV260 JLG (D.D.C.) at 9 (Mar. 28, 1997).

RICHARD L. SHIFFRIN 

Deputy Assistant Attorney General

Office of Legal Counsel

95