b'Requiring Identifying Information for Access to\nFinancial Disclosure Reports During the Period\nGoverned by Section 11(a) of the STOCK Act\nA procedure under which prospective viewers are required to provide basic identifying\ninformation similar to that described in section 105(b)(2) of the Ethics in Government\nAct in order to access financial disclosure reports made available under section 11(a)\nof the Stop Trading on Congressional Knowledge Act is consistent with both these\nstatutes.\nThis procedure may be implemented by Executive Branch agencies at the direction of the\nOffice of Government Ethics, pursuant to its authority under section 402 of the Ethics\nin Government Act to prescribe procedures governing the public availability of financial disclosure reports.\nThe interim regime established by section 11(a) of the Stop Trading on Congressional\nKnowledge Act terminates upon implementation of the permanent public disclosure\nsystem on the Office of Government Ethics website required by section 11(b). Section\n11(b)(2) makes clear that viewers may not be required to provide identifying information in order to view reports made available through that system.\nAugust 22, 2012\n\nMEMORANDUM OPINION FOR THE ACTING DIRECTOR\nOFFICE OF GOVERNMENT ETHICS\nThe Stop Trading on Congressional Knowledge Act of 2012, Pub. L.\nNo. 112-105, 126 Stat. 291, also known as the STOCK Act, requires the\nPresident to ensure that financial disclosure reports filed pursuant to title I\nof the Ethics in Government Act of 1978 (\xe2\x80\x9cEIGA\xe2\x80\x9d) (codified as amended\nat 5 U.S.C. app. \xc2\xa7\xc2\xa7 101\xe2\x80\x93111 (2006 & Supp. IV 2010)), are made available\nto the public electronically. For an initial interim period, the President\nmust ensure that the reports are made available through the official websites of Executive Branch agencies. See STOCK Act \xc2\xa7 11(a), 126 Stat. at\n298\xe2\x80\x9399. This interim period begins on September 30, 2012, and ends no\nlater than October 4, 2013. See Pub. L. No. 112-173, \xc2\xa7 1, 126 Stat. 1310,\n1310 (2012); STOCK Act \xc2\xa7 11(b)(1), 126 Stat. at 299. 1 Thereafter, the\nThe STOCK Act originally required that the first stage of Internet access begin on\nAugust 31, 2012. Id. \xc2\xa7 11(a)(1), 126 Stat. at 298. The STOCK Act was subsequently\namended to move this deadline to the end of September. Pub. L. No. 112-173, \xc2\xa7 1, 126\nStat. at 1310. As noted below, section 11(b)(6) of the STOCK Act permits the Director\n1\n\n198\n\n\x0cRequiring Identifying Information for Access to Financial Disclosure Reports\n\nPresident must provide public access to the reports through a database on\nthe website of the Office of Government Ethics (\xe2\x80\x9cOGE\xe2\x80\x9d). See STOCK\nAct \xc2\xa7 11(b), 126 Stat. at 299. You have asked for our opinion whether,\nduring the interim period when reports are made available on agency\nwebsites under section 11(a), prospective viewers may be required to\nprovide basic identifying information similar to the information described\nin section 105(b)(2) of the EIGA, 5 U.S.C. app. \xc2\xa7 105(b)(2), in order to\naccess the reports. See Letter for Virginia A. Seitz, Assistant Attorney\nGeneral, Office of Legal Counsel, from Don W. Fox, Acting Director,\nOGE, at 1 (July 13, 2012) (\xe2\x80\x9cRequest Letter\xe2\x80\x9d). We conclude that such a\nprocedure would be consistent with the STOCK Act and the EIGA and\ncould be implemented by Executive Branch agencies at the direction of\nOGE, pursuant to its authority under section 402 of the EIGA, 5 U.S.C.\napp. \xc2\xa7 402 (2006), to prescribe procedures governing the public availability of financial disclosure reports. We note, however, that the interim\nregime established by section 11(a) of the STOCK Act terminates upon\nimplementation of the permanent public disclosure system on the OGE\nwebsite required by section 11(b). STOCK Act \xc2\xa7 11(a)(4), 126 Stat. at\n299. As we explain below, section 11(b)(2) of the STOCK Act makes\nclear that viewers may not be required to provide identifying information\nin order to view reports made available through that system.\nI.\nSection 101 of the EIGA requires certain officers and employees in the\nExecutive Branch to file financial disclosure reports containing detailed\ninformation about their income, assets, liabilities, and financial transactions. See 5 U.S.C. app. \xc2\xa7\xc2\xa7 101\xe2\x80\x93102. Section 105(a) of the EIGA requires\nthat each executive agency and supervising ethics office \xe2\x80\x9cmake available\nto the public\xe2\x80\x9d those reports, in accordance with section 105(b). Id.\n\xc2\xa7 105(a). Section 105(b)(1) provides that any person seeking to inspect or\ncopy a report must be permitted to do so. Id. \xc2\xa7 105(b)(1). Section\n105(b)(2), however, provides that a report\n\nof the Office of Government Ethics to extend the October 4, 2013 deadline for commencing the second stage of Internet access.\n\n199\n\n\x0c36 Op. O.L.C. 198 (2012)\n\nmay not be made available under this section to any person nor may\nany copy thereof be provided under this section to any person except\nupon a written application by such person stating\xe2\x80\x94\n(A) that person\xe2\x80\x99s name, occupation and address;\n(B) the name and address of any other person or organization\non whose behalf the inspection or copy is requested; and\n(C) that such person is aware of the prohibitions on the obtaining or use of the report.\nId. \xc2\xa7 105(b)(2). Section 105(c)(1) of the EIGA sets forth the prohibitions\non obtaining or using reports:\nIt shall be unlawful for any person to obtain or use a report\xe2\x80\x94\n(A) for any unlawful purpose;\n(B) for any commercial purpose, other than by news and communications media for dissemination to the general public;\n(C) for determining or establishing the credit rating of any individual; or\n(D) for use, directly or indirectly, in the solicitation of money\nfor any political, charitable, or other purpose.\nId. \xc2\xa7 105(c)(1).\nThe EIGA assigns the Director of OGE various responsibilities in connection with the financial disclosure reports and with preventing conflicts\nof interest on the part of officers and employees of the Executive Branch.\nOf particular relevance to your inquiry, the EIGA provides that \xe2\x80\x9c[t]he\nresponsibilities of the Director shall include\xe2\x80\x94(1) developing . . . rules and\nregulations establishing procedures for the . . . public availability of financial statements filed by officers and employees in the executive branch\xe2\x80\x9d\npursuant to the EIGA. Id. \xc2\xa7 402(b). 2 The EIGA further provides that the\nSection 402(b)(1), which was enacted as part of the original EIGA in 1978, states\nthat the disclosure statements are \xe2\x80\x9crequired by title II of [the EIGA].\xe2\x80\x9d Id. The EIGA was\nsubstantially amended by the Ethics Reform Act of 1989, however; and, in that process,\ntitle II was repealed, and the provisions governing the filing of disclosure reports by\nExecutive Branch officers and employees were moved to title I. See Ethics Reform Act\nof 1989 (\xe2\x80\x9c1989 Act\xe2\x80\x9d), Pub. L. No. 101-194, tit. II, \xc2\xa7\xc2\xa7 201\xe2\x80\x93202, 103 Stat. 1716, 1724\xe2\x80\x9344.\nWe have found nothing in either the text of the 1989 Act or its legislative history suggesting that this revision was intended to affect the Director\xe2\x80\x99s authority under section\n2\n\n200\n\n\x0cRequiring Identifying Information for Access to Financial Disclosure Reports\n\n\xe2\x80\x9cDirector shall . . . ensure that each executive agency has established\nwritten procedures relating to how the agency is to . . . , if applicable,\nmake publicly available, financial disclosure statements filed by any of\nits officers or employees,\xe2\x80\x9d id. \xc2\xa7 402(d)(1), and \xe2\x80\x9cshall ensure that each\nagency\xe2\x80\x99s procedures are in conformance with all applicable requirements,\nwhether established by law, rule, regulation, or Executive order,\xe2\x80\x9d id.\n\xc2\xa7 402(d)(2).\nThe STOCK Act imposes enhanced requirements regarding the public\navailability of financial disclosure reports. Specifically, it establishes a\ntwo-stage process for making reports available to the public through the\nInternet. The first stage is described in section 11(a) of the Act. That\nprovision requires that, not later than September 30, 2012, \xe2\x80\x9cthe President\nshall ensure\xe2\x80\x9d that financial disclosure reports filed by Executive Branch\nemployees pursuant to title I of the EIGA \xe2\x80\x9care made available to the\npublic on the official websites of the respective executive branch agencies not later than 30 days after such forms are filed.\xe2\x80\x9d STOCK Act\n\xc2\xa7 11(a)(1), 126 Stat. at 298; Pub. L. No. 112-173, \xc2\xa7 1, 126 Stat. at 1310.\nThe interim requirements of section 11(a)(1) terminate upon the implementation of the second stage, a \xe2\x80\x9cpublic disclosure system established\nunder subsection (b)\xe2\x80\x9d of section 11. STOCK Act \xc2\xa7 11(a)(4), 126 Stat. at\n299.\nParagraph (1) of section 11(b) describes the general contours of that\npublic disclosure system. It requires that, not later than October 4, 2013\n(eighteen months after enactment of the STOCK Act), unless that deadline\nis extended pursuant to section 11(b)(6), \xe2\x80\x9cthe President, acting through\nthe Director of [OGE], shall develop systems to enable\xe2\x80\x9d (A) \xe2\x80\x9celectronic\nfiling\xe2\x80\x9d of the financial disclosure reports required by the EIGA and (B)\n402(b)(1) to prescribe rules and regulations governing the public availability of financial\ndisclosure reports filed by Executive Branch officers and employees. On the contrary,\nsection 111 of the EIGA, as added by the 1989 Act, expressly assigns the Director\nresponsibility for administering the provisions of the newly enacted title I with regard to\nthose officials. 5 U.S.C. app. \xc2\xa7 111(1). We therefore conclude that the 1989 Act did not\nimpair the Director\xe2\x80\x99s rulemaking authority under section 402(b)(1). See Hawaii v. Office\nof Hawaiian Affairs, 556 U.S. 163, 175 (2009) (\xe2\x80\x9c\xe2\x80\x98repeals by implication are not favored\nand will not be presumed unless the intention of the legislature to repeal [is] clear and\nmanifest\xe2\x80\x99\xe2\x80\x9d (brackets in original)). Accordingly, section 402(b)(1)\xe2\x80\x99s reference to \xe2\x80\x9ctitle II\xe2\x80\x9d\nof the EIGA should be understood as a reference to the provisions governing disclosure\nreports by Executive Branch officials currently located in title I.\n\n201\n\n\x0c36 Op. O.L.C. 198 (2012)\n\n\xe2\x80\x9cpublic access\xe2\x80\x9d to reports filed by Executive Branch officials \xe2\x80\x9cthrough\ndatabases that\xe2\x80\x94(i) are maintained on the official website of [OGE]; and\n(ii) allow the public to search, sort, and download data contained in the\nreports.\xe2\x80\x9d Id. \xc2\xa7 11(b)(1), 126 Stat. at 299.\nParagraph (2) of subsection (b) addresses the information that may be\nrequired from individuals seeking access to financial disclosure reports\nunder section 11. It states:\nNo login shall be required to search or sort the data contained in\nthe reports made available by this subsection. A login protocol with\nthe name of the user shall be utilized by a person downloading data\ncontained in the reports. For purposes of filings under this section,\nsection 105(b)(2) of the Ethics in Government Act of 1978 (5 U.S.C.\nApp. 105(b)(2)) does not apply.\nId. \xc2\xa7 11(b)(2), 126 Stat. at 299.\nII.\nIn our view, during the interim period governed by section 11(a) of\nthe STOCK Act, Executive Branch agencies may implement that section\xe2\x80\x99s electronic disclosure requirement through a procedure that requires individuals to provide information similar to that specified in\nsection 105(b)(2) of the EIGA before accessing a financial disclosure\nreport via an agency website. OGE may prescribe that procedure under\nsection 402 of the EIGA, which authorizes it to establish rules governing the public availability of financial disclosure reports.\nA.\nAs noted, your letter requests our opinion about the implementation of\nsection 11(a) of the STOCK Act. In the letter, you first raise the possibility that section 105(b)(2) of the EIGA\xe2\x80\x94which requires a requester to\nsupply certain identifying information in order to obtain access to a\nreport\xe2\x80\x94continues to apply when reports are made available on agency\nwebsites pursuant to section 11(a). See Request Letter at 2 n.1. If section\n105(b)(2) applied in that circumstance, then the answer to your inquiry\nwould be straightforward: A procedure requiring an individual seeking\naccess to a report via a website to first provide the identifying infor202\n\n\x0cRequiring Identifying Information for Access to Financial Disclosure Reports\n\nmation specified in section 105(b)(2) would clearly be permissible;\nindeed, that procedure would be statutorily mandated. See 5 U.S.C. app.\n\xc2\xa7 105(b)(2) (stating that a report \xe2\x80\x9cmay not be made available . . . except\nupon a written application\xe2\x80\x9d including the specified information). We do\nnot, however, believe that to be the natural reading of the statutory\nscheme.\nInstead, we believe that under the best reading of the pertinent provisions, EIGA section 105(b)(2) does not apply when reports are made\navailable on agency websites pursuant to section 11(a) of the STOCK\nAct. To be sure, the STOCK Act does not repeal section 105(b)(2). The\npreconditions to disclosure set forth in section 105(b)(2) therefore\ncontinue to apply when individuals seek to inspect or obtain copies of\nreports through non-electronic means (such as in person or by mail).\nBut section 105(b)(2) applies only when a report or copy thereof is\n\xe2\x80\x9cmade available under this section,\xe2\x80\x9d id., i.e., under section 105 of the\nEIGA. And a report that is made available via the Internet pursuant to\nsection 11(a) of the STOCK Act has not been \xe2\x80\x9cmade available under\xe2\x80\x9d\nsection 105 of the EIGA, as that phrase is naturally understood. Thus,\nsection 105(b)(2), by its own terms, is inapplicable to reports made\navailable under section 11(a) of the STOCK Act.\nIn any event, even assuming that section 105(b)(2) would otherwise\napply to reports made available under section 11(a) of the STOCK Act,\nsection 11(b)(2) of the STOCK Act states that, \xe2\x80\x9c[f ]or purposes of filings\nunder this section, section 105(b)(2) of the Ethics in Government Act of\n1978 (5 U.S.C. App. 105(b)(2)) does not apply.\xe2\x80\x9d 126 Stat. at 299 (emphasis added). That provision renders the conditions on disclosure in section\n105(b)(2) inapplicable to reports governed by section 11 of the STOCK\nAct, including reports made available pursuant to section 11(a).\nIn context, the phrase \xe2\x80\x9c[f ]or purposes of filings under this section\xe2\x80\x9d is\nbest read to mean \xe2\x80\x9cfor purposes of reports governed by this section.\xe2\x80\x9d The\nterm \xe2\x80\x9cfilings\xe2\x80\x9d appears to refer to financial disclosure reports, which the\nSTOCK Act uses varying terminology to describe. Compare, e.g.,\nSTOCK Act \xc2\xa7 11(a)(1), 126 Stat. at 298 (referring to the disclosure\nreports as \xe2\x80\x9cforms\xe2\x80\x9d), with id. \xc2\xa7 11(b)(1), 126 Stat. at 299 (referring to\nthem as \xe2\x80\x9creports\xe2\x80\x9d). Section 105(b)(2) addresses public access to reports\nafter they have been filed with the relevant agencies, at which point the\nreports are appropriately called \xe2\x80\x9cfilings.\xe2\x80\x9d See Black\xe2\x80\x99s Law Dictionary\n203\n\n\x0c36 Op. O.L.C. 198 (2012)\n\n705 (9th ed. 2009) (defining \xe2\x80\x9cfiling\xe2\x80\x9d as \xe2\x80\x9c[a] particular document . . . in\nthe file of a . . . record custodian\xe2\x80\x9d). The term \xe2\x80\x9cunder,\xe2\x80\x9d when used in a\nstatute, frequently means \xe2\x80\x9cgoverned by\xe2\x80\x9d or \xe2\x80\x9csubject to the requirements\nof.\xe2\x80\x9d See Fla. Dep\xe2\x80\x99t of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S.\n33, 39 (2008); The American Heritage Dictionary of the English Language 1874 (4th ed. 2006) (\xe2\x80\x9cAmerican Heritage Dictionary\xe2\x80\x9d) (definitions 7\xe2\x80\x9310 of \xe2\x80\x9cunder\xe2\x80\x9d); Webster\xe2\x80\x99s Third New International Dictionary of\nthe English Language 2487 (1993) (\xe2\x80\x9cWebster\xe2\x80\x99s Dictionary\xe2\x80\x9d) (definitions\n8b, 9b, and 10a of \xe2\x80\x9cunder\xe2\x80\x9d).\nThe term \xe2\x80\x9csection\xe2\x80\x9d is best understood as referring to section 11 of the\nSTOCK Act in its entirety, including section 11(a). Congress ordinarily\nadheres to a hierarchical scheme when subdividing statutory sections and\nreferencing those sections and their subdivisions. Koons Buick Pontiac\nGMC, Inc. v. Nigh, 543 U.S. 50, 60 (2004). Thus, Congress generally uses\nthe term \xe2\x80\x9csection\xe2\x80\x9d to refer to a statutory section as whole and the term\n\xe2\x80\x9csubsection\xe2\x80\x9d to refer to one of the section\xe2\x80\x99s first-level subdivisions, which\nare typically preceded by lowercase letters, such as \xe2\x80\x9c(a)\xe2\x80\x9d or \xe2\x80\x9c(b).\xe2\x80\x9d See id.\nat 60\xe2\x80\x9361. Congress appears to have followed that practice in the STOCK\nAct, including in section 11. See, e.g., STOCK Act \xc2\xa7 6(b), 126 Stat. at\n294 (referring to \xe2\x80\x9csubsection (a)\xe2\x80\x9d); id. \xc2\xa7 11(a)(4), 126 Stat. at 299 (distinguishing between \xe2\x80\x9cthis subsection\xe2\x80\x9d and \xe2\x80\x9csubsection (b)\xe2\x80\x9d); id. \xc2\xa7 14, 126\nStat. at 300\xe2\x80\x9301 (referring to \xe2\x80\x9csection 6 of this Act\xe2\x80\x9d). The Supreme Court\nhas, on rare occasions, concluded that a statutory reference to \xe2\x80\x9csection\xe2\x80\x9d or\n\xe2\x80\x9csubsection\xe2\x80\x9d was a drafting error and should be disregarded. See, e.g.,\nDir., Workers\xe2\x80\x99 Comp. Programs v. Rasmussen, 440 U.S. 29, 41 (1979)\n(concluding that use of the term \xe2\x80\x9csubsection\xe2\x80\x9d was \xe2\x80\x9cplainly in error\xe2\x80\x9d where\nthe provision referred to \xe2\x80\x9c[d]eterminations under this subsection\xe2\x80\x9d and no\ndeterminations were made under the subsection). We see no indication,\nhowever, that Congress made a drafting error here. On the contrary, as we\nhave noted, in drafting the STOCK Act, Congress appears to have observed the distinction between the terms \xe2\x80\x9csection\xe2\x80\x9d and \xe2\x80\x9csubsection\xe2\x80\x9d\nthroughout. We therefore believe that section 11(b)(2) of the STOCK Act\nmakes clear that section 105(b)(2) of the EIGA does not apply for purposes of disclosure reports governed by section 11 of the STOCK Act. Accordingly, the EIGA\xe2\x80\x99s requirement that a requester seeking financial\ndisclosure reports supply specified identifying information is inapplicable\nwhen reports are made available pursuant to section 11(a).\n204\n\n\x0cRequiring Identifying Information for Access to Financial Disclosure Reports\n\nIn your Request Letter, you identify a potential alternative reading of\nthe statement in section 11(b)(2) that \xe2\x80\x9c[f ]or purposes of filings under this\nsection, section 105(b)(2) of the Ethics in Government Act of 1978 (5\nU.S.C. App. 105(b)(2)) does not apply.\xe2\x80\x9d 126 Stat. at 299 (emphasis added). See Request Letter at 2 n.1. Under that reading, this statement declares that section 105(b)\xe2\x80\x99s preconditions for disclosure are inapplicable\nonly for reports actually filed pursuant to requirements imposed by section 11. Id. You note that, while section 11(b) requires the filing of reports, because it imposes a new electronic filing requirement, STOCK Act\n\xc2\xa7 11(b)(1)(A), 126 Stat. at 299, section 11(a) primarily addresses public\naccess to reports that have already been filed. Request Letter at 2 n.1.\nYou therefore suggest that section 105(b)(2)\xe2\x80\x99s requirements would, as a\npractical matter, be inapplicable when an individual seeks access to reports filed under section 11(b), but that the requirements would continue\nto apply when an individual seeks access to reports under section 11(a).\nId. In our view, however, this alternative reading of section 11(b)(2) has\nsignificant weaknesses.\nFor the alternative reading to be correct, \xe2\x80\x9cfilings\xe2\x80\x9d would have to refer\nto \xe2\x80\x9csubmissions\xe2\x80\x9d of financial disclosure reports, rather than to the reports\nthemselves, and \xe2\x80\x9cunder\xe2\x80\x9d would have to mean \xe2\x80\x9cas required by,\xe2\x80\x9d rather\nthan \xe2\x80\x9cgoverned by.\xe2\x80\x9d Those are plausible meanings of \xe2\x80\x9cfilings\xe2\x80\x9d and \xe2\x80\x9cunder.\xe2\x80\x9d See STOCK Act \xc2\xa7 11(b)(1)(A), 126 Stat. at 299 (referring to \xe2\x80\x9celectronic filing of reports\xe2\x80\x9d); Kasten v. Saint-Gobain Performance Plastics\nCorp., 131 S. Ct. 1325, 1331 (2011) (noting that \xe2\x80\x9cfile\xe2\x80\x9d can mean \xe2\x80\x9cto\nplace among official records as prescribed by law\xe2\x80\x9d); Kucana v. Holder,\n558 U.S. 233, 244 (2010) (noting that \xe2\x80\x9cunder\xe2\x80\x9d can mean \xe2\x80\x9cpursuant to\xe2\x80\x9d or\n\xe2\x80\x9cby reason of the authority of\xe2\x80\x9d); Webster\xe2\x80\x99s Dictionary at 849 (definition\n3a(1) of \xe2\x80\x9cfile\xe2\x80\x9d) (\xe2\x80\x9cto deliver (as a legal paper or instrument) after complying with any condition precedent (as the payment of a fee) to the proper\nofficer for keeping on file among the records of his office\xe2\x80\x9d); id. at 2487\n(definition 8a of \xe2\x80\x9cunder\xe2\x80\x9d) (\xe2\x80\x9crequired by\xe2\x80\x9d). But taken in context, those\nmeanings do not seem as likely as the meanings that we have ascribed to\nthe terms.\nMoreover, the alternative reading has two serious flaws: First, it provides no explanation for Congress\xe2\x80\x99s use of the word \xe2\x80\x9csection,\xe2\x80\x9d as opposed\nto the word \xe2\x80\x9csubsection,\xe2\x80\x9d in section 11(b)(2). Under the alternative read205\n\n\x0c36 Op. O.L.C. 198 (2012)\n\ning, the provision would have the same meaning regardless of which word\nCongress used. Therefore, if Congress had intended the alternative reading, Congress presumably would have used the word \xe2\x80\x9csubsection,\xe2\x80\x9d the\nword it used earlier in section 11(b)(2); but Congress did not do so.\nIn addition, the alternative reading rests on the mistaken premise that\nsection 11(b) is the only provision in section 11 that requires \xe2\x80\x9cfilings.\xe2\x80\x9d\nContrary to that premise, one provision in section 11(a) also requires\nfilings: Section 11(a)(3) states that \xe2\x80\x9ctransaction disclosure[s] required by\nsection 103(l) of the [EIGA] . . . shall be filed not later than the date\nrequired by that section.\xe2\x80\x9d STOCK Act \xc2\xa7 11(a)(3), 126 Stat. at 299 (emphasis added). Thus, the practical effect of the alternative reading would\nbe that section 105(b)(2)\xe2\x80\x99s preconditions on disclosure would be inapplicable both when an individual seeks reports under section 11(b) and when\nan individual seeks transaction reports under section 11(a). The preconditions would continue to apply when an individual seeks access to other\ndisclosure reports under section 11(a). We have found no basis for this\ncounter-intuitive reading in the legislative history and cannot conceive of\nany reason why Congress would have adopted such a patchwork scheme\nof conditions on disclosure.\nFor these reasons, we conclude that, pursuant to section 11(b)(2) of the\nSTOCK Act, the requirements for disclosure in section 105(b)(2) do not\napply during the interim period when reports are made available on agency websites under section 11(a).\nB.\nBecause section 105(b)(2) does not apply, agencies have no statutory\nobligation to condition a requester\xe2\x80\x99s access to reports made available\nunder section 11(a) on the requester\xe2\x80\x99s provision of the information specified in section 105(b)(2). Nonetheless, the fact that agencies are not\nobligated to impose that condition does not mean that agencies are prohibited from imposing the condition through the exercise of discretion if\nthey otherwise have the authority to do so. And, in our view, agencies\nhave the authority, subject to the direction of OGE, to require that individuals seeking access to financial disclosure reports during the period\ngoverned by section 11(a) of the STOCK Act provide basic identifying\ninformation like the items specified in section 105(b)(2).\n206\n\n\x0cRequiring Identifying Information for Access to Financial Disclosure Reports\n\nAs an initial matter, we believe that section 11(a) of the STOCK Act,\nin conjunction with section 402 of the EIGA, authorizes the agencies that\nreceive financial disclosure reports from their officers and employees to\nestablish, under the direction of OGE, appropriate procedures governing\nhow the reports are made available on agency websites. Section 11(a)\nimposes on the President the obligation to \xe2\x80\x9censure\xe2\x80\x9d that the reports are\n\xe2\x80\x9cmade available to the public on the official websites of the respective\nexecutive branch agencies.\xe2\x80\x9d STOCK Act \xc2\xa7 11(a)(1), 126 Stat. at 298. The\nPresident could not fulfill that obligation unless the Executive Branch had\nauthority to develop and implement appropriate procedures to make the\nreports available. Section 11(a) thus necessarily implies that the Executive\nBranch has that authority.\nThe STOCK Act does not assign the authority to establish procedures\nfor complying with section 11(a) to any specific component of the Executive Branch. The nature of the obligation, however, together with EIGA\nsection 402, makes clear that the authority lies with the various Executive\nBranch agencies that receive the reports, subject to the direction of OGE.\nBecause the reports must be made available on the websites of the \xe2\x80\x9crespective executive branch agencies,\xe2\x80\x9d those agencies are logical repositories of the authority to establish procedures governing how the reports are\nmade available. Moreover, the EIGA confirms that each agency generally\nhas the authority to establish \xe2\x80\x9cprocedures relating to how the agency is to\n. . . make publicly available[] financial disclosure statements filed by any\nof its officers or employees.\xe2\x80\x9d 5 U.S.C. app. \xc2\xa7 402(d)(1). The EIGA makes\nclear, however, that OGE also has authority to \xe2\x80\x9cestablish[] procedures\xe2\x80\x9d\ngoverning the \xe2\x80\x9cpublic availability\xe2\x80\x9d of financial disclosure reports, id.\n\xc2\xa7 402(b)(1), and that OGE may use that authority to superintend the\nprocedures established by the agencies and ensure their \xe2\x80\x9cconformance\nwith all applicable requirements,\xe2\x80\x9d including requirements prescribed by\nOGE, id. \xc2\xa7 402(d)(2).\nThe procedures governing how reports are made available on agency\nwebsites may incorporate reasonable prerequisites to or limitations on\naccess, provided that those prerequisites are consistent with section\n11(a)\xe2\x80\x99s command that the reports be \xe2\x80\x9cmade available,\xe2\x80\x9d as well as with any\nother applicable legal requirements. See generally Chevron, U.S.A., Inc. v.\nNat. Res. Def. Council, Inc., 467 U.S. 837, 843\xe2\x80\x9345 (1984) (explaining\nthat, when an agency has been delegated authority to fill a gap in a statute,\n207\n\n\x0c36 Op. O.L.C. 198 (2012)\n\nthe agency\xe2\x80\x99s action is controlling if Congress has not addressed the point\nat issue and the agency\xe2\x80\x99s action is reasonable); e.g., United States ex rel.\nTouhy v. Regan, 340 U.S. 462, 468 (1951) (holding that a statute authorizing the Attorney General to prescribe regulations for \xe2\x80\x9cthe custody, use,\nand preservation of the records, papers, and property\xe2\x80\x9d of the Department\nof Justice, 5 U.S.C. \xc2\xa7 22 (1946), empowered the Attorney General to\npromulgate a regulation that reserved to himself the decision whether to\nrelease documents in response to a subpoena).\nC.\n1.\nIn our view, requiring prospective viewers to provide basic information, similar to the information listed in EIGA section 105(b)(2),\nbefore accessing reports is a reasonable limitation consistent with\nsection 11(a)\xe2\x80\x99s general command that the reports be \xe2\x80\x9cmade available to\nthe public\xe2\x80\x9d on agency websites. STOCK Act \xc2\xa7 11(a)(1), 126 Stat. at\n298. \xe2\x80\x9cAvailable\xe2\x80\x9d means \xe2\x80\x9caccessible\xe2\x80\x9d or \xe2\x80\x9cobtainable.\xe2\x80\x9d See American\nHeritage Dictionary at 123 (definitions 1 and 2); Webster\xe2\x80\x99s Dictionary\nat 150 (definition 4). Thus, reports are made \xe2\x80\x9cavailable\xe2\x80\x9d if prospective\nviewers may access or obtain the reports upon presentation of basic\nidentifying information.\nSignificantly, section 105 of the EIGA supports the conclusion that requiring prospective viewers to provide information like that specified in\nsection 105(b)(2) before they may access reports is consistent with section\n11(a)\xe2\x80\x99s command that reports be \xe2\x80\x9cmade available to the public.\xe2\x80\x9d Section\n105\xe2\x80\x99s public availability requirement is phrased in virtually identical\nlanguage, see 5 U.S.C. app. \xc2\xa7 105(a) (stating that each agency shall \xe2\x80\x9cmake\navailable to the public\xe2\x80\x9d each report filed with the agency); yet section\n105(b)(2) requires an individual to provide the specified information as a\nprecondition to inspecting or copying a report. See id. \xc2\xa7 105(b)(2). Thus,\nsection 105 demonstrates that Congress considered a requirement that\nprospective viewers provide such information before accessing reports to\nbe consistent with a command that reports be \xe2\x80\x9cmade available to the\npublic.\xe2\x80\x9d\nMoreover, when Congress enacts a new statute using language that has\na settled meaning, the new statute is generally construed to embody that\n208\n\n\x0cRequiring Identifying Information for Access to Financial Disclosure Reports\n\nsettled meaning. See Evans v. United States, 504 U.S. 255, 260 n.3 (1992)\n(\xe2\x80\x9c[A]s Justice Frankfurter advised, \xe2\x80\x98if a word is obviously transplanted\nfrom another legal source, whether the common law or other legislation, it\nbrings the old soil with it.\xe2\x80\x99\xe2\x80\x9d (quoting Felix Frankfurter, Some Reflections\non the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947))). Because\nsection 11(a) incorporates language that was understood to be consistent\nwith a requirement that prospective viewers provide basic identifying\ninformation before accessing reports, section 11(a) also should be construed as consistent with that requirement.\nOther statutory provisions confirm that if Congress had intended to\npreclude OGE and other agencies from requiring prospective viewers to\nprovide basic identifying information before accessing reports made\navailable under section 11(a), Congress would have done so explicitly.\nFor example, section 11(b)(2) of the STOCK Act states that \xe2\x80\x9c[n]o login\nshall be required to search or sort the data contained in the reports made\navailable by this subsection.\xe2\x80\x9d 126 Stat. at 299. As we explain in more\ndetail below, that provision does not address whether identifying information may be required to access reports made available under\nsection 11(a), because the provision applies only to reports made available under section 11(b). See infra pp. 214\xe2\x80\x93216. The provision strongly\nsuggests, however, that a requirement that prospective viewers provide\nidentifying information is permissible in this context absent an express\nstatement to the contrary. Otherwise there would have been no need for\nCongress to add the provision in order to preclude OGE and other\nagencies from requiring a login to search or sort reports made available\nunder section 11(b). See Corley v. United States, 556 U.S. 303, 314\n(2009) (statutes should be construed to avoid rendering any of their\nprovisions superfluous).\nIn other statutes as well, where Congress has intended to prohibit a requirement that users provide identifying information before availing\nthemselves of a feature on agency websites, Congress has made that\nprohibition explicit. Thus, the Inspector General Reform Act of 2008,\nwhich requires the website of the Office of the Inspector General of each\nagency to include a link that allows individuals to report fraud, waste, or\nabuse, expressly provides that individuals using the links \xe2\x80\x9cshall not be\nrequired to provide personally identifying information.\xe2\x80\x9d Pub. L. No. 110409, sec. 13(a), \xc2\xa7 8L(b)(2)(A), 122 Stat. 4302, 4316.\n209\n\n\x0c36 Op. O.L.C. 198 (2012)\n\nFinally, a procedure under which prospective viewers must provide\nbasic identifying information and acknowledge the legal prohibitions on\nobtaining and using reports is a reasonable way to achieve the purposes of\nsection 11(a) of the STOCK Act, consistent with the limitations on public\naccess to financial disclosure reports imposed by the EIGA. Although\nsection 11(a) of the STOCK Act aims to enhance public access to financial disclosure reports by making those reports accessible via the Internet,\nsee, e.g., 158 Cong. Rec. S195 (daily ed. Jan. 31, 2012) (statement of Sen.\nBegich); id. at S196 (statement of Sen. Lieberman); id. at S1979 (daily ed.\nMar. 22, 2012) (statement of Sen. Lieberman), section 11(a) and the rest\nof the STOCK Act leave in place the restrictions on obtaining and using\nreports imposed by EIGA section 105(c)(1). Conditioning access to reports via agency websites on the provision of basic information, including\nan acknowledgement of those restrictions, would facilitate enforcement of\nthe restrictions without impairing section 11(a)\xe2\x80\x99s goal of making reports\navailable via the Internet during the interim period before implementation\nof the permanent disclosure system required by section 11(b). 3\nFor these reasons, we believe that a procedure requiring prospective\nviewers to provide basic identifying information, such as the items listed\nin EIGA section 105(b)(2), before accessing disclosure reports via agency\nwebsites would be a reasonable means of implementing section 11(a) of\nthe STOCK Act.\n2.\nAn argument can be constructed, based on the legislative history of the\nEIGA, that such a procedure is not a permissible method for implementing section 11(a). In our view, however, that argument is not persuasive.\n\nAs we explain in Part II.D, Congress imposed limitations on the collection of identifying information from prospective users during the second stage of Internet access, once\na permanent database (with search, sort, and download capability) is established on the\nOGE website. Nonetheless, requiring identifying information during the first stage (before\nestablishment of the permanent OGE database) would facilitate a smooth transition to the\nsecond stage by providing enhanced protections against potential misuse of the reports\nwhile the President determines whether to exempt from the disclosure requirements\ncertain filers who may be particularly vulnerable to misuse of their reports. See infra pp.\n214\xe2\x80\x93216.\n3\n\n210\n\n\x0cRequiring Identifying Information for Access to Financial Disclosure Reports\n\nThe versions of the EIGA originally passed by the Senate and considered on the floor of the House of Representatives contained provisions, similar to current section 105(b)(2), that required prospective\nviewers to provide basic identifying information before accessing\nreports. See S. 555, 95th Cong. \xc2\xa7 305(c) (as passed by Senate, June 27,\n1977); 124 Cong. Rec. 30,434, 30,436 (1978) (H.R. 13850, 95th Cong.\n\xc2\xa7 104(c) (1978)) (considered as substitute to H.R. 1, 95th Cong. (1978))\n(requirement with respect to reports by congressional officials); 124\nCong. Rec. at 30,468 (H.R. 13850, 95th Cong. \xc2\xa7 205(b)(1)) (requirement with respect to reports by executive officials); 124 Cong. Rec. at\n32,028 (H.R. 13850, 95th Cong. \xc2\xa7 305(b)(1)) (requirement with respect\nto reports by judicial officials). Those provisions were, however, removed before final passage of the EIGA. See 124 Cong. Rec. at 30,447\n(amendment, offered by Rep. Frenzel, striking the requirement with\nrespect to reports by congressional officials); H.R. Rep. No. 95-1756, at\n24\xe2\x80\x9325, 37\xe2\x80\x9338 (1978) (Conf. Rep.) (Conference Committee agreement\nremoving the requirements with respect to reports by Executive Branch\nand judicial employees); Ethics in Government Act of 1978, Pub. L. 95521, \xc2\xa7\xc2\xa7 104, 205, 305, 92 Stat. 1824, 1832\xe2\x80\x9333, 1846\xe2\x80\x9347, 1859 (legislation as enacted). In offering the amendment to strike the requirement\nwith respect to reports by congressional officials, Representative Frenzel stated that the amendment revised the section governing public\navailability of reports \xe2\x80\x9cso that a person requesting\xe2\x80\x9d access to a report\n\xe2\x80\x9cmay not or need not be required to leave his name and organization.\xe2\x80\x9d\n124 Cong. Rec. at 30,447.\nThe following year, the Director of OGE testified before a congressional subcommittee that, based on this drafting history, OGE did not\nbelieve that it had authority to require an individual to provide his name\nas a condition of receiving a report. See Financial Disclosure Provisions\nof the Ethics in Gov\xe2\x80\x99t Act of 1978: Hearing on H.R. 2805 Before the\nSubcomm. on Human Res. of the H. Comm. on the Post Office & Civil\nServ., 96th Cong. 9\xe2\x80\x9310 (1979). Congress subsequently amended the\nEIGA to add requirements that prospective viewers provide basic identifying information before accessing reports, see Act of June 13, 1979,\nPub. L. No. 96-19, \xc2\xa7 8, 93 Stat. 37, 41\xe2\x80\x9342, and those requirements were\nconsolidated in section 105(b)(2) as part of the EIGA\xe2\x80\x99s reorganization in\n1989, see supra note 2; 1989 Act, sec. 202, \xc2\xa7 105, 103 Stat. at 1738.\n211\n\n\x0c36 Op. O.L.C. 198 (2012)\n\nBased on this history, it could be argued that (1) the EIGA, as originally enacted (without section 105(b)(2)), did not permit OGE and other\nagencies to require prospective viewers of reports to provide identifying\ninformation; (2) section 11(b)(2) of the STOCK Act, by declaring that\nsection 105(b)(2) does not apply to reports made available under section\n11(a), effectively restores the EIGA as originally enacted for reports made\navailable under section 11(a); and (3) OGE and other agencies therefore\ndo not have authority to condition access to reports under section 11(a) on\nthe requester\xe2\x80\x99s providing basic identifying information. We believe,\nhowever, that this argument has several fatal defects.\nFirst, it is not accurate to view section 11(b)(2) as effectively restoring\nthe EIGA as originally enacted. As we explained above, section 11(b)(2)\ndoes not repeal section 105(b)(2). Section 105(b)(2) remains a part of the\nEIGA and continues to apply at least when reports are accessed through\nmeans other than the Internet access mandated by section 11. See supra\np. 203. And, as described above, section 105(b)(2) supports the conclusion that OGE and other agencies may require prospective viewers of\nreports under section 11(a) to provide identifying information. See supra\np. 208. In addition, section 11(b)(2) contains other provisions besides the\ndeclaration that section 105(b)(2) does not apply to reports made available\nunder section 11(a). As explained above, one of those other provisions,\nthe login prohibition for searching and sorting reports made available\nunder section 11(b), also supports the permissibility of a requirement that\nprospective viewers provide identifying information before viewing\nreports under section 11(a). See supra p. 209.\nSecond, we do not believe that the legislative history establishes that\nthe EIGA as originally enacted prohibited OGE and other agencies from\nconditioning access to Executive Branch financial disclosure reports on\nthe requester\xe2\x80\x99s providing basic identifying information. The provisions\nthat were removed from the EIGA during the legislative process would\nhave required agencies to impose that condition. Congress\xe2\x80\x99s decision not\nto require agencies to impose the condition does not establish that Congress also intended to prohibit OGE and other agencies from imposing the\ncondition as an exercise of their discretion to establish procedures implementing the public availability requirement. The floor statement by Representative Frenzel suggests that he may have believed that the deletion of\nthe requirement meant that the condition could not be imposed. But floor\n212\n\n\x0cRequiring Identifying Information for Access to Financial Disclosure Reports\n\nstatements, even by amendment sponsors, are of limited utility in interpreting legislative provisions. See Consumer Prods. Safety Comm\xe2\x80\x99n v.\nGTE Sylvania, Inc., 447 U.S. 102, 118 (1980) (\xe2\x80\x9c[O]rdinarily even the\ncontemporaneous remarks of a single legislator who sponsors a bill are\nnot controlling in analyzing legislative history.\xe2\x80\x9d); Zuber v. Allen, 396 U.S.\n168, 186 (1969) (\xe2\x80\x9cFloor debates reflect at best the understanding of individual Congressmen.\xe2\x80\x9d). Moreover, Representative Frenzel\xe2\x80\x99s statement\nconcerned only the deletion of the requirement with respect to reports\nfiled by congressional officials. The requirement that access to Executive\nBranch reports be conditioned on the requester\xe2\x80\x99s providing identifying\ninformation was retained in the bill passed by the House, see 124 Cong.\nRec. at 32,024, 32,028 (S. 555, 95th Cong. \xc2\xa7 205(b)(1) (Sept. 27, 1978)),\nand was deleted in the House-Senate Conference. The Conference Report\ndoes not discuss the deletion and gives no indication that the conferees\nunderstood the deletion to preclude OGE and other agencies from deciding, in their discretion, to condition access to Executive Branch reports on\nthe provision of identifying information. See H.R. Rep. No. 95-1756.\nAs noted above, the Director of OGE later testified that he interpreted\nthis legislative history to preclude any requirement that prospective viewers provide identifying information, and Congress in 1979 subsequently\nadded that requirement to the EIGA. Those events, however, constitute, at\nmost, subsequent legislative history about the meaning of the EIGA as\noriginally enacted, and \xe2\x80\x9c\xe2\x80\x98subsequent legislative history is a \xe2\x80\x9chazardous\nbasis for inferring the intent of an earlier\xe2\x80\x9d Congress.\xe2\x80\x99\xe2\x80\x9d Jones v. United\nStates, 526 U.S. 227, 238 (1999) (quoting Pension Benefit Guar. Corp. v.\nLTV Corp., 496 U.S. 633, 650 (1990) (quoting, in turn, United States v.\nPrice, 361 U.S. 304, 313 (1960))). Moreover, the 1979 enactment establishes only that Congress wanted to require that prospective viewers\nprovide identifying information; the 1979 enactment does not indicate\nwhether Congress believed that agencies could have imposed the requirement on their own volition.\nFinally, the argument based on this legislative history turns on Congress\xe2\x80\x99s decision not to include a particular provision in the EIGA as\noriginally enacted. The argument is not anchored in the statutory text that\nwas in fact enacted. And \xe2\x80\x9ccourts have no authority to enforce [a] principl[e] gleaned solely from legislative history that has no statutory reference point.\xe2\x80\x9d Shannon v. United States, 512 U.S. 573, 584 (1994) (quota213\n\n\x0c36 Op. O.L.C. 198 (2012)\n\ntion omitted, brackets in original). This aspect of the legislative history of\nthe EIGA thus does not alter our conclusion that conditioning access to\ndisclosure reports on the requester\xe2\x80\x99s providing basic identifying information, similar to the information listed in EIGA section 105(b)(2), would\nbe a reasonable means of implementing section 11(a) of the STOCK Act.\nD.\nEven though that procedure would be a reasonable means of implementing section 11(a) of the STOCK Act, the procedure would not be\npermissible if some other provision of the STOCK Act or the EIGA\nprohibited it. The only provision of either statute that could be construed\nto contain such a prohibition, however, is the first sentence in section\n11(b)(2) of the STOCK Act, and the text of that provision is best read not\nto contain such a prohibition.\nAs discussed above, the provision states that \xe2\x80\x9c[n]o login shall be required to search or sort the data contained in the reports made available\nby this subsection.\xe2\x80\x9d STOCK Act \xc2\xa7 11(b)(2), 126 Stat. at 299 (emphasis\nadded). The prohibition on requiring a \xe2\x80\x9clogin\xe2\x80\x9d to \xe2\x80\x9csearch or sort\xe2\x80\x9d the\ndata in the reports is, in our view, tantamount to a prohibition on requiring prospective viewers to provide identifying information before viewing the reports. The ordinary meaning of \xe2\x80\x9clogin\xe2\x80\x9d is \xe2\x80\x9c[t]he process of\nidentifying oneself to a computer, usually by entering one\xe2\x80\x99s username\nand password.\xe2\x80\x9d American Heritage Dictionary at 1029; accord Random\nHouse Dictionary of the English Language 1130 (2d ed. 1987) (definition 17a of \xe2\x80\x9clog\xe2\x80\x9d). A prohibition on requiring a prospective user to\nprovide identifying information before \xe2\x80\x9csearch[ing] or sort[ing]\xe2\x80\x9d data\nnecessarily includes a prohibition on requiring a prospective user to\nprovide such information before taking the lesser step of viewing the\ndata.\nNonetheless, we believe that the login prohibition applies only when\nprospective viewers seek access to a financial disclosure report under the\nsecond stage of the process mandated by section 11\xe2\x80\x94the permanent\npublic disclosure system required by subsection (b). The login prohibition\ndoes not apply when prospective viewers seek access to reports during the\nfirst stage, when reports are accessible via websites pursuant to subsection\n(a). The login prohibition, by its plain terms, applies only to reports\n214\n\n\x0cRequiring Identifying Information for Access to Financial Disclosure Reports\n\n\xe2\x80\x9cmade available by this subsection.\xe2\x80\x9d STOCK Act \xc2\xa7 11(b)(2), 126 Stat. at\n299. The phrase \xe2\x80\x9cthis subsection\xe2\x80\x9d refers to subsection (b) of section 11,\nnot section 11 as a whole. As explained above, Congress generally uses\nthe term \xe2\x80\x9csubsection\xe2\x80\x9d to refer to a first-level subdivision of a statutory\nsection, rather than the section as a whole, and Congress generally adhered to that practice in the STOCK Act, including in section 11. See\nsupra p. 204.\nAlthough, as noted above, Congress may sometimes make drafting errors and use the term \xe2\x80\x9csubsection\xe2\x80\x9d when it actually means \xe2\x80\x9csection,\xe2\x80\x9d again\nwe do not believe that Congress erred here. On the contrary, as set forth\nabove, Congress carefully adhered to the distinction between the terms\n\xe2\x80\x9csection\xe2\x80\x9d and \xe2\x80\x9csubsection\xe2\x80\x9d throughout the STOCK Act. See supra p. 204.\nMoreover, Congress could reasonably have concluded that OGE and other\nagencies should have discretion to require that prospective users provide\nidentifying information in order to access financial disclosure reports\nduring the eighteen-month period before establishment of the permanent\ndatabase required by subsection (b). As members of Congress recognized,\nbroader public access to financial disclosure reports increases the risk that\nthe officers and employees who file those reports may be subject to misuse of their personal information for unlawful or other nefarious purposes.\nSee, e.g., 158 Cong. Rec. S1979 (daily ed. Mar. 22, 2012) (statement of\nSen. Levin). Requiring prospective viewers to supply identifying information and to acknowledge the restrictions on using reports provides\nsome deterrent against misuse of the information in the reports. Allowing\nOGE and other agencies to maintain that deterrent during the eighteenmonth period before establishment of the permanent database serves a\nvaluable purpose: During that time, the President could evaluate whether\nsome categories of officers and employees may be particularly vulnerable\nto misuse of their information, see id. (statement of Sen. Levin) (suggesting that law enforcement, military, and intelligence officers may be particularly vulnerable), and, if necessary, invoke statutory provisions that\nallow him to exempt from public disclosure reports filed by certain officers and employees, see, e.g., 5 U.S.C. app. \xc2\xa7 105(a)(1) (allowing the\nPresident to exempt from public disclosure reports filed by individuals\nengaged in intelligence activities); 158 Cong. Rec. S1980 (daily ed. Mar.\n22, 2012) (colloquy between Senators Reid and Lieberman stating that\nthis exemption authority applies to section 11 of the STOCK Act).\n215\n\n\x0c36 Op. O.L.C. 198 (2012)\n\nFor these reasons, we conclude that the login prohibition in the first\nsentence of section 11(b)(2) does not prohibit OGE and other agencies\nfrom requiring that prospective viewers provide basic identifying information before they may access financial disclosure reports made available\nduring the interim period governed by subsection (a).\nIII.\nIn sum, a procedure under which prospective viewers are required to\nprovide information similar to that described in section 105(b)(2) of the\nEIGA in order to access financial disclosure reports made available under\nsection 11(a) of the STOCK Act is consistent with both the STOCK Act\nand the EIGA. In our judgment, this procedure may be implemented by\nExecutive Branch agencies at the direction of OGE pursuant to its authority under section 402 of the EIGA to prescribe procedures governing the\npublic availability of financial disclosure reports.\nVIRGINIA A. SEITZ\nAssistant Attorney General\nOffice of Legal Counsel\n\n216\n\n\x0c'


b'Preparation of Slip Laws from\nHand-Enrolled Legislation\nThe National Archives and Records Administration may not make any editorial changes in\nthe content o f a statute, no matter how minor, including spelling or punctuation changes.\nThe National Archives and Records Administration may make changes in typeface and type\nstyle, and other such changes that d o not alter the content o f a statute.\n\nNovember 29, 1989\nM em oran dum O\n\np in io n f o r t h e\n\nA r c h i v is t\n\nof th e\n\nU n it e d S t a t e s\n\nThis memorandum is in response to the request o f your office for our\nopinion concerning whether the National Archives and Records Adminis\xc2\xad\ntration (\xe2\x80\x9cNARA\xe2\x80\x9d) may make editorial corrections, such as spelling or\npunctuation changes, in preparing hand-enrolled legislation for publica\xc2\xad\ntion as a slip law. For the reasons set forth below, we conclude that: (1)\nNARA may not make any editorial changes in the content o f a statute, no\nmatter how minor, including spelling or punctuation changes; but (2)\nNARA may make changes in typeface and type style, and other such\nchanges that do not alter the content o f a statute.\nYour office has also requested advice as to how it should prepare a slip\nlaw when portions o f the hand-enrolled legislation are illegible or\nambiguous. As explained more fully below, we conclude that NARA has\nno authority to reconstruct or interpret illegible statutory text. Accord\xc2\xad\ningly, we believe that the best procedure would be for NARA: (1) to type\xc2\xad\nset all unambiguous portions of the law and (2) to photograph into the\nslip law any illegible portions.\n\nI. Background\nAfter a bill has been passed by both Houses of Congress, it is \xe2\x80\x9cenrolled\xe2\x80\x9d\nfor presentation to the President pursuant to Article I, Section 7, Clause\n2 o f the Constitution. Under the normal procedures, enrollment involves\nprinting the final text o f the bill, including any changes made by amend\xc2\xad\nments, on parchment or other suitable paper. 1 U.S.C. \xc2\xa7\xc2\xa7 106, 107. The\nenrollment o f the bill is supervised by the Clerk o f the House of Repre\xc2\xad\nsentatives or the Secretary o f the Senate, depending upon the House in\n353\n\n\x0cwhich the bill originated. When the number of amendments is large, this\nprocess can be quite complicated inasmuch as each of the amendments\n\xe2\x80\x9cmust be set out in the enrollment exactly as agreed to, and all punctua\xc2\xad\ntion must be in accord with the action taken.\xe2\x80\x9d Edward F. Willett, Jr., Esq.,\nLaw Revision Counsel, U.S. House of Representatives, How Our Laws\nAre Made, H.R. Doc. No. 158, 99th Cong., 2d Sess. 43 (1985). In addition\nto assembling the text from the various amendments, the Clerk or\nSecretary, in enrolling a bill, proofreads the text for spelling errors and\nother technical mistakes. Serious technical errors that are discovered are\noften corrected by means of a concurrent resolution ordering the Clerk\nor the Secretary to make the corrections to the enrolled bill. Charles\nTiefer, Congressional Practice and Procedure: A Reference, Research,\nand Legislative Guide 249 (1989); see, e.g., S. Con. Res. 79, 99th Cong.,\n1st Sess., 99 Stat. 1962 (1985); H.R. Con. Res. 340, 98th Cong., 2d Sess., 98\nStat. 3480 (1984); S. Con. Res. 154, 98th Cong., 2d Sess., 98 Stat. 3518\n(1984). The Clerk or Secretary, however, will generally correct very minor\nerrors, such as obvious spelling mistakes, without the passage of a con\xc2\xad\ncurrent resolution.\nOnce the bill has been enrolled, it is sent to the appropriate congres\xc2\xad\nsional authorities for approved. In the House, enrolled bills are first sent\nto the Committee on House Administration. H.R. Doc. No. 158 at 43. If the\nCommittee finds the printing to be accurate, the Chairman attaches a\nnote to this effect and forwards the bill to the Speaker for signature. Id.\nIn the Senate, the Secretary o f the Senate examines the printed bill for\naccuracy before forwarding it for signature to the President o f the Senate\nor the President pro tempore. Robert U. Goehlert & Fenton S. Martin,\nCongress and Law-Making: Researching the Legislative Process 38 (2d\ned. 1989). After the enrolled bill has been signed by both the Speaker of\nthe House and the President o f the Senate, it is then presented to the\nPresident. If the bill is approved by the President, an exact photoprint of\nthe enrolled bill is sent to NARA,1 which then forwards the bill to the\nPublic Printer for preparation o f the slip law. 1 U.S.C. \xc2\xa7 106a; 44 U.S.C. \xc2\xa7\n710. The Public Printer (\xe2\x80\x9cGPO\xe2\x80\x9d) is required to print an \xe2\x80\x9caccurate\xe2\x80\x9d prelim\xc2\xad\ninary copy o f the law, which is then sent to NARA \xe2\x80\x9cfor revision.\xe2\x80\x9d 44 U.S.C.\n\xc2\xa7711. NARA has interpreted this latter provision as allowing it only to\ncorrect errors made by GPO in printing the preliminary copy; NARA does\nnot make editorial changes to the text as received from the President.\nAfter making any corrections that are necessary to ensure that the text\nconforms to that o f the original bill signed by the President, NARA adds\nnotations giving the public or private law number, legal citations, and\nother such ancillary information, and then returns the preliminary copy\nto GPO, which inserts these corrections and then prints the required\n1 By regulation, NARA has delegated its responsibilities for preparing slip laws to the Office o f the\nFederal Register, which is a component o f NARA. 1 C FR \xc2\xa7\xc2\xa7 2.3(a), 2 5(b) (1989).\n\n354\n\n\x0cnumber of slip laws. 44 U.S.C. \xc2\xa7\xc2\xa7 709, 711. These slip laws are \xe2\x80\x9ccompetent\nevidence\xe2\x80\x9d o f the Acts o f Congress \xe2\x80\x9cwithout any further proof or authen\xc2\xad\ntication thereof.\xe2\x80\x9d 1 U.S.C. \xc2\xa7 113.\nThe issues addressed in this memorandum arise from Congress\xe2\x80\x99 occa\xc2\xad\nsional departure from the normal process of preparing printed enroll\xc2\xad\nments of bills before presenting them to the President. Until recently the\nprinting requirement was waived only rarely. Congress waived the require\xc2\xad\nment at the end of the second session o f the 54th Congress, see 29 Stat.\napp. 17 (1897), and again at the end o f the second session o f the 70th\nCongress, see H.R. Con. Res. 59, 70th Cong., 2d Sess., 45 Stat. 2398 (1929).\nThereafter, Congress does not appear to have dispensed with a printed\nenrollment until 1982. See H.R. Con. Res. 436, 97th Cong., 2d Sess., 96 Stat.\n2678 (1982). In the 1982 case, Congress passed a concurrent resolution\nwaiving the printing requirement for certain bills for the remainder o f the\nsession and authorizing the enrollment o f the bills in \xe2\x80\x9csuch form as may be\ncertified by the Committee on House Administration to be a truly enrolled\njoint resolution.\xe2\x80\x9d Id. A similar waiver was authorized by concurrent reso\xc2\xad\nlution in 1984. See H.R. Con. Res. 375, 98th Cong., 2d Sess., 98 Stat. 3519\n(1984). In recent years, Congress has tended simply to pass a new statute\nspecifically designed to waive the normal enrollment requirements for\nparticular statutes or for specified periods o f time. See, e.g., Pub. L. No. 99463, 100 Stat. 1184 (1986); Pub. L. No. 99-188, 99 Stat. 1183 (1985).\nThe waiver o f the normal requirement o f preparing a printed enroll\xc2\xad\nment of a bill before it is presented to the President has produced a num\xc2\xad\nber o f problems in connection with the preparation of slip laws. The\nhand-enrolled bills are often hastily put together, include a number of\nmistakes, and contain handwritten portions that may be unclear or illeg\xc2\xad\nible. Under the ordinary procedures, these errors generally would have\nbeen caught and corrected, either by concurrent resolution or in the\nenrollment process, before the bill was presented to the President. With\nthe hand enrollments, however, bills cannot be proofread until after they\nhave already been approved by the President. Although the enrollment\nwaivers made during the 1982, 1984, and 1985 sessions did not expressly\nprovide for post-enactment enrollment, the House Enrolling Clerk did in\nfact supervise the typesetting o f the hand-enrolled bills after enactment,\nusing the same standards, including corrections o f misspellings and other\nnonsubstantive errors, that are used during the normal pre-enactment\nenrolling process. At the time, NARA was unaware that these changes\nwere being made, and the typeset copies of the enrolled bills, which\nincluded such changes, were processed into slip laws.\nIn the spring of 1986, it came to NARA\xe2\x80\x99s attention that the House\nEnrolling Clerk had been making minor editorial changes in the process\nof supervising the typesetting of hand-enrolled legislation. Later that\nyear, when NARA received a typeset copy o f Pub. L. No. 99-509, 100 Stat.\n1874 (1986), and noted that it contained such changes, NARA requested\n355\n\n\x0cthat the House Enrolling Clerk remove the \xe2\x80\x9ccorrections\xe2\x80\x9d that had been\nmade. The Clerk agreed to do so. On a subsequent occasion, however, the\nHouse Enrolling Clerk refused to remove the corrections, and NARA\nitself had the relevant portions typeset so as to conform to the handenrolled bill that had been presented to the President. See Pub. L. No. 99570, 100 Stat. 3207 (1986).\nOn subsequent occasions when the printing requirements were waived,\nCongress attempted to mitigate the problems associated with hand\nenrollment by expressly providing that, subsequent to approval by the\nPresident, a printed enrollment o f the bill would be prepared, signed by\nthe presiding officers of both Houses, and transmitted to the President\nfor his \xe2\x80\x9ccertification\xe2\x80\x9d that the printed enrollment was a correct printing\no f the hand enrollment. See, e.g., Pub. L. No. 100-454, \xc2\xa7 2, 102 Stat. 1914,\n1914-15 (1988); Pub. L. No. 100-203, \xc2\xa7 8004, 101 Stat. 1330, 1330-282 to\n1330-238 (1987); Pub. L. No. 100-202, \xc2\xa7 101(n), 101 Stat. 1329, 1329-432 to\n1329-433 (1987). In the process o f preparing a printed enrollment, the\nHouse Enrolling Clerk was specifically authorized to make \xe2\x80\x9ccorrections\nin spelling, punctuation, indentation, type face, and type size and other\nnecessary stylistic corrections to the hand enrollment.\xe2\x80\x9d See, e.g., Pub. L.\nNo. 100-454, \xc2\xa7 2(a)(2), 102 Stat. 1914 (1988). In the case o f each such\nstatute, the President authorized NARA to make the determination as to\nwhether the printed enrollments were \xe2\x80\x9ccorrect printings o f the hand\nenrollments.\xe2\x80\x9d See 53 Fed. Reg. 50,373 (1988); 53 Fed. Reg. 2816 (1988).\nFinally, these Acts each specifically provided that, after certification, the\nprinted enrollment was to be used instead of the hand enrollment in\norder to prepare the slip law, and that the printed enrollment was to be\nconsidered for all purposes as the original enrollment.\nNARA has sought our advice concerning when and to what extent any\ntechnical changes may be made to the text o f a bill that has already been\nenacted into law. NARA confronts this question in two different contexts:\n(1) whether changes can be made by NARA or the House Enrolling Clerk\nwhen there is no post-enactment certification procedure; and (2) when\nthere is such a procedure, whether NARA should, pursuant to its dele\xc2\xad\ngated authority, certify as \xe2\x80\x9ccorrect\xe2\x80\x9d post-enactment enrollments that dif\xc2\xad\nfer in certain respects from the hand enrollment. Finally, NARA seeks\nadvice concerning how to prepare slip laws when portions o f the handenrolled legislation are illegible.\n\nII. Discussion\nA. Printing procedures when Congress has waived normal enrollment\nrequirements without providing for post-enactment enrollment\n\nWhen there is no statute authorizing a post-enactment certification\nprocedure, we think that it is clear that no changes may be made to the\n356\n\n\x0ctext o f a hand-enrolled statute in the course of processing it into a slip\nlaw. The simple reason for this conclusion is that the statutory scheme\nregulating the printing o f slip laws, as outlined above, does not allow for\nalterations of the text o f new laws. By statute, NARA receives the origi\xc2\xad\nnals, 1 U.S.C. \xc2\xa7 106a, sends a copy to GPO, 44 U.S.C. \xc2\xa7 710, and GPO is\nrequired to print an \xe2\x80\x9caccurate" preliminary copy of the law, 44 U.S.C. \xc2\xa7\n711 (emphasis added).\nThis preliminary copy is then further proofread by NARA, which sends\nthe copy back to GPO with any corrections and with the appropriate\nancillary information to be inserted in the margins.2\nFurthermore, under the normal statutory scheme the House Enrolling\nClerk has no role whatsoever in the printing o f laws that have already\nbeen enacted. Pursuant to 1 U.S.C. \xc2\xa7 106a, NARA receives the original\ncopy of the statute, not from the House Enrolling Clerk, but either direct\xc2\xad\nly from the White House (if the bill was approved) or directly from the\nSpeaker o f the House or the President of the Senate (if the bill became\nlaw without the President\xe2\x80\x99s approval).3 Accordingly, under the conven\xc2\xad\ntional scheme, there is no statutory authorization for a procedure where\xc2\xad\nby the House Enrolling Clerk supervises the typesetting of a bill that has\nalready been enacted into law, makes editorial changes, and then for\xc2\xad\nwards it to NARA for printing. Thus, in situations where Congress has\nmerely waived the enrolling requirements o f 1 U.S.C. \xc2\xa7\xc2\xa7 106 & 107 with\xc2\xad\nout providing for a post-enactment enrollment procedure, NARA clearly\nshould use only the original hand enrollments in the preparation o f the\nslip laws.\n\n2 We agree with NARA that 44 U.S.C \xc2\xa7 711, which states that the preliminary copy is to be sent to NARA\n\xe2\x80\x9cfor revision,\xe2\x80\x9d does not authorize NARA to make editorial changes to the text o f the original copy o f the\nstatute, rather, NARA corrects only errors made by GPO in the course o f printing the preliminary copy.\nThe phrase \xe2\x80\x9cfor revision" originated in the Act o f Mar. 9,1868, ch. 22, \xc2\xa7 2,15 Stat. 40, the relevant portion\no f which was subsequently codified, as amended, in 44 U S C \xc2\xa7 711 The 1868 Act provided that, rather\nthan receiving copies o f all new laws from the Secretary o f the Senate (which was the pnor practice, see\nAct o f June 25,1864, ch 155, \xc2\xa7 7,13 Stat 184,185-86), the congressional printer would receive a \xe2\x80\x9ccorrect\ncopy\xe2\x80\x9d directly from the Secretary o f State (who was at that time charged with preserving the originals),\nand the printer would then prepare an accurate preliminary copy to be sent to the Secretary o f State \xe2\x80\x9cfor\nrevision.\xe2\x80\x9d The author o f the 1868 Act, Senator Anthony, made clear that this procedure was designed to\nensure that the printed slip laws would carefully match the originals\n[Slip laws] have been heretofore furnished by the Secretary o f the Senate and the Clerk of\nthe House o f Representatives. This bill provides that they shall be furnished hereafter from\nthe rolls o f the State Department, so that they may be perfectly authentic and coiTect There\nhave been some errors heretofore, necessarily, in furnishing the laws without taking them\nfrom the rolls.\nCong Globe, 40th Cong , 2d Sess 1126 (1868) (emphasis added) In light o f this emphasis on authentici\xc2\xad\nty and faithfulness to the original copy, we believe that the \xe2\x80\x9cfor revision" language o f section 711 should\nbe construed only as permitting NARA to correct errors made by GPO in the course o f preparing the pre\xc2\xad\nliminary copy.\n3 We recognize that, under long-accepted procedures, the photoprints for the slip law are generally\nmade directly from the enrolled bill before it is sent to the President. This is a statutorily acceptable pro\xc2\xad\ncedure only because the photoprints o f the enrolled bill are in all respects identical to the copy present\xc2\xad\ned to the President and subsequently delivered to NARA under 1 U S.C \xc2\xa7 106a\n\n357\n\n\x0cB. Printing procedures when Conqress has provided for postenactment\nenrollment\n\nUnder the post-enactment certification procedures that have been\nused to date, the task of making minor editorial corrections to the handenrolled statutes has been assigned to the Clerk o f the House of\nRepresentatives. See Pub. L. No. 100-454, \xc2\xa7 2(a), 102 Stat. 1914 (1988);\nPub. L. No. 100-203, \xc2\xa7 8004(a), 101 Stat. 1330, 1330-282 (1987); Pub. L. No.\n100-202, \xc2\xa7 101(n)(l) & (2), 101 Stat. 1329, 1329-432 (1987). Under these\nprocedures, the subsequent printed enrollment is presented to the\nPresident, not for his plenary review, but merely for his \xe2\x80\x9ccertification\xe2\x80\x9d\nthat the subsequent enrollment is a correct printing.\nWe believe that this procedure fails to provide the plenary right of\nreview afforded to the President by the Presentment Clause and thus that\nthese post-enactment certification proceedings are constitutionally\ndefective.4 In INS v. Chadha, 462 U.S. 919, 952 (1983), the Supreme Court\nheld that every legislative act o f the Congress must be presented to the\nPresident pursuant to Article I, Section 7 o f the Constitution. Because the\nHouse Enrolling Clerk\xe2\x80\x99s actions in making editorial emendations to a law\nthat has already been enacted is a legislative act, it must be subject to the\npresentment requirement of the Constitution.\nThere can be no doubt that drafting and amending statutory language\nare quintessential legislative tasks. Although many minor changes to\nstatutes may appear too insignificant to be o f practical import, we dis\xc2\xad\ncern no principled basis for concluding that \xe2\x80\x9cminor\xe2\x80\x9d revisions o f the text\no f statutes should be classified as anything other than a legislative activ\xc2\xad\nity. To conclude otherwise would be to suggest, contrary to the plain\nteaching o f Chadha, that \xe2\x80\x9cminor\xe2\x80\x9d changes in the wording o f statutes\ncould be made by Congress other than through the Article I procedures.\nSee Chadha, 462 U.S. at 954 n.18 (\xe2\x80\x9cThere is no provision [in the\nConstitution] allowing Congress to repeal or amend laws by other than\nlegislative means pursuant to [a]rt. I.\xe2\x80\x9d).\nIndeed, in this regard, we believe it is significant that, although codifi\xc2\xad\ncation and revision o f statutes is often expressly intended not to be o f any\nsubstantive significance, see, e.g., S. Rep. No. 1621, 90th Cong., 2d Sess.\n4 We believe that the issue o f the constitutionality o f this procedure is distinct from the question of\nwhether a court would be willing to receive the evidence necessary to permit a challenge to a statute that\nhad been altered in the course o f being printed in accordance with this procedure. Cf. Field v Clark, 143\nU S 649,669-72 (1892) (noting that, although \xe2\x80\x9c[t]here is no authority in .. the secretary o f state to receive\nand cause to be published, as a legislative act, any bill not passed by congress," a court would nonethe\xc2\xad\nless not receive evidence questioning the authenticity o f a statute that was enrolled, attested to, and\ndeposited in the public archives); see also Hans A. Lande, Due Process o f Lawmaking, 55 Neb. L Rev\n197, 243 (1976) ( \xe2\x80\x9cWe do not assume that a law has been constitutionally made merely because a court\nwill not set it aside ...\xe2\x80\x9d) We express no view as to the latter question o f whether a court would be will\xc2\xad\ning to receive evidence concerning, and to a b d ic a t e a challenge to, a statute that was altered in the\ncourse o f being printed.\n\n358\n\n\x0c2-3 (1968), reprinted in 1968 U.S.C.C.A.N. 4438, 4439-40 (enactment into\npositive law o f title 44 of U.S. Code not intended to make any substantive\nchanges), such revised codifications have never been considered to be\nconclusive evidence o f the law unless they have first been enacted into\npositive law by Congress. See Pub. L. No. 80-278, 61 Stat. 633 (1947) (un\xc2\xad\nenacted titles of U.S. Code are only \xe2\x80\x9cprima facie\xe2\x80\x9d evidence o f the law),\ncodified as amended at 1 U.S.C. \xc2\xa7 204 (1988);5 cf United States v. Welden,\n377 U.S. 95, 99 n.4 (1964) (\xe2\x80\x9c[A] \xe2\x80\x98change o f arrangement\xe2\x80\x99 [in a statute] made\nby a codifier without the approval o f Congress ... should be given no\nweight.\xe2\x80\x9d).6 In short, we believe that even a \xe2\x80\x9cminor\xe2\x80\x9d act of Congress is still\nan act of Congress, and a minor amendment is still an amendment.7\nAccordingly, any attempt to alter the content o f a statute by means o f\na procedure that does not afford the President the full review provided by\nthe Presentment Clause would be unconstitutional. Therefore, should\nNARA ever again be required to determine and certify whether a subse\xc2\xad\nquent printed enrollment is a correct printing o f a hand-enrolled law, it\nshould refuse to issue the certification if any change has been made to\nthe content o f the statute.\nWe do not believe, however, that changes in typeface, type style or the\nlike are appropriately considered legislative acts. There is an important\ndifference between altering the content of a law \xe2\x80\x94 i.e. changing the actual\nwords and punctuation that make up the statute \xe2\x80\x94 and merely printing\nthe statute in a different type size from that used when it was presented\nto the President. The former may well affect the meaning o f the statute,\nwhereas the latter will not. The Constitution is concerned with the con\xc2\xad\ntent and composition o f legislation, not with the printing standards\n5 Because the unenacted codifications are only pnma facie evidence o f the law, they may not prevail\nover the authentic Statutes at Large in the event o f a conflict between the two. American Bank & Trust\nCo v. Dallas County, 463 U.S 855, 864 n.8 (1983); Stephan v United States, 319 U.S. 423, 426 (1943).\n6 It appears that on only one bnef occasion has Congress ever permitted a revised codification to serve\nas conclusive evidence o f the law See Act o f Mar 2, 1877, ch. 82, \xc2\xa7 4, 19 Stat. 268, 269 (new edition of\nrevised statutes would constitute \xe2\x80\x9clegal and conclusive evidence o f the laws") In the following year,\nhowever, Congress amended this statute to omit the words \xe2\x80\x9cand conclusive\xe2\x80\x9d and to provide that the use\no f the new edition o f the Revised Statutes \xe2\x80\x9cshall not preclude reference to, nor control, in case o f any\ndiscrepancy, the effect o f any onginal act as passed by Congress.\xe2\x80\x9d Act o f Mar. 9, 1878, ch 26, 20 Stat 27\nAt any rate, the new edition o f the Revised Statutes did not involve any alterations o f statutory language;\nthe revision commissioner was given no authority to makes any changes to the text o f the First edition of\nthe Revised Statutes (which had been enacted into positive law), except as authonzed by formal amend\xc2\xad\nments. See Act o f Mar 2, 1877, \xc2\xa7 2, 19 Stat. 268, 268-69 (outlining powers and duties o f commissioner),\nsee also Rev. Stat. at v (2d ed. 1878) ( \xe2\x80\x9cThe commissioner was not clothed with power to change the sub\xc2\xad\nstance or to alter the language o f the existing edition o f the Revised Statutes, nor could he correct any\nerrors or supply any omissions therein except as authonzed by the several statutes o f amendment.\xe2\x80\x9d)\n7 The conclusion that there is no such thing as a \xe2\x80\x9cde minimis\xe2\x80\x9d change to a statute\xe2\x80\x99s text is further sup\xc2\xad\nported by examining some o f the \xe2\x80\x9cminor\xe2\x80\x9d changes that have been made to statutes under the post-certification procedures that have been used to date For example, in the course o f typesetting and \xe2\x80\x9ccorrect\xc2\xad\ning\xe2\x80\x9d Pub L. No. 100-203, \xc2\xa7 4113(a)(1)(B), the enrolling clerk changed a section reference in the statute\nfrom \xe2\x80\x9c(F )\xe2\x80\x9d to \xe2\x80\x9c(E )\xe2\x80\x9d. See 101 Stat 1330-151 & n.52 This was itself an error; shortly thereafter Congress by\nstatute ordered that the \xe2\x80\x9c(E )\xe2\x80\x9d be changed back to an \xe2\x80\x9c(F )\xe2\x80\x9d See Pub. L No 100-360, \xc2\xa7 411(a)(3)(B)(iii),\n102 Stat 683, 768 (1988).\n\n359\n\n\x0cwhereby that content is reproduced for public consumption.8 Thus,\nNARA is at liberty to make appropriate changes in typeface or type style\no f a statute.\nC. Printing procedures where portions of the statute are illegible\n\nNARA has also requested advice as to how slip laws should be pre\xc2\xad\npared when portions o f the hand-enrolled legislation are illegible. In light\no f the above discussion concerning the legal limitations on the modifica\xc2\xad\ntion or correction o f statutory text, we do not believe that NARA pos\xc2\xad\nsesses any authority to \xe2\x80\x9cinterpret\xe2\x80\x9d illegible or ambiguous text. If a portion\no f the statute simply cannot be read, NARA has no power to reconstruct\nthe provision in the way that strikes it as most sensible. Nor may NARA\nrely on the House Enrolling Clerk or congressional committees to inter\xc2\xad\npret indecipherable language; such a practice could allow for congres\xc2\xad\nsional alteration o f statutory text without following the Article I, Section\n7 procedure. In short, while NARA may typeset any handwritten portions\nthat are legible, it may not interpret and then typeset provisions that are\nindecipherable.\nThe only remaining question concerns how NARA should publish the\nillegible portions. In the past, NARA has simply inserted blanks and\ndropped a footnote indicating that the text was not legible. See, e.g., Pub.\nL. No. 100-203, \xc2\xa7 4051(a), 101 Stat. 1330, 1330-93 & n.32a (1987). On at\nleast one such occasion, Congress clarified the matter by passing a\nstatute that supplied the missing language. See Pub. L. No. 100-360,\n\xc2\xa7 411(a)(3)(C), 102 Stat. 683, 768 (1988). In our view, however, the use of\nblanks does not best comply with NARA\xe2\x80\x99s statutory responsibilities. As\nnoted earlier, the statutory procedure for printing emphasizes the publi\xc2\xad\ncation o f a slip law that is an \xe2\x80\x9caccurate\xe2\x80\x9d copy o f the original. Where a por\xc2\xad\ntion o f a new law cannot be typeset because it is illegible, we believe that\nthe statutory requirements o f accuracy and faithfulness to the original\nrequire that the illegible portion be photographed and reproduced on the\nslip law. Such a procedure would unquestionably produce a more accu\xc2\xad\nrate copy o f the statute than would using blanks. Furthermore, such\nreproduction would provide an official or private party who might seek\nto rely on the statute at least some opportunity to attempt to interpret it.\nThe current procedure of using blanks provides no such guidance.\n\nIII. Conclusion\nTo summarize: In producing slip laws from hand-enrolled legislation,\nNARA should make no changes to the text of statutes, but it may make\n8 In this regard, we note that any printing instructions that may be contained in the margins o f a handenrolled statute (such as, for example, \xe2\x80\x9cInsert highlighted material from next page here\xe2\x80\x9d) do not consti\xc2\xad\ntute part o f the statutory text\n\n360\n\n\x0cchanges in typeface and type style. If a particular printing is to be exam\xc2\xad\nined by NARA in order to determine whether it should be certified as a\ncorrect copy of the original, NARA should decline to certify if the print\xc2\xad\ning contains any modifications to the content o f the original. If a particu\xc2\xad\nlar hand-enrolled statute contains illegible material, NARA should typeset\nthe legible portions and photograph the illegible portions in producing\nthe slip law.\nWILLIAM P. BARR\nAssistant Attorney General\nOffice of Legal Counsel\n\n361\n\n\x0c'