In re Printing by Government Printing Office for National Railroad Passenger Corp., B-114829
| Decision Date | 08 September 1978 |
| Docket Number | B-114829 |
| Citation | 57 Comp.Gen. 773 |
| Parties | IN THE MATTER OF PRINTING BY GOVERNMENT PRINTING OFFICE FOR NATIONAL RAILROAD PASSENGER CORPORATION |
| Court | Comptroller General of the United States |
National railroad passenger corporation - applicability of freedom of information, privacy and sunshine acts the national railroad passenger corporation (amtrak) is an "agency" for purposes of the freedom of information, privacy, and sunshine acts, notwithstanding the statement in 45 U.S.C. 541 that AMTRAK was not "to be an agency or establishment of the government of the United States" since it is (1) headed by a collegial body-- board of directors-- the majority of whom are appointed by the president with the advice and consent of the senate, and (2) a government-controlled corporation as that term is used in 5 U.S.C. 552(e). Furthermore, legislative history of freedom of information and sunshine acts indicates congressional intent to include Amtrak. Federal register - publication - required government printing office is required by 44 U.S.C. 1504(a)(3) to publish information in federal register that AMTRAK is required to publish under freedom of information, privacy and sunshine acts. Furthermore, AMTRAK May be billed for such publication in accordance with 44 U.S.C. 1509, as amended by pub. L. No. 95-94, since AMTRAK is an "agency" within the context of that provision.
This decision to the public printer is in response to an inquiry from the general counsel, government printing office (GPO) asking whether the GPO is authorized to open an account for the national railroad passenger corporation (amtrak) for printing notices submitted by AMTRAK pursuant to section 3(a) of the government in the sunshine act, 5 U.S.C. 552b (1976) (sunshine act).
Specifically we have been asked:
* * * whether AMTRAK is an agency or establishment of the United States government and, therefore, whether an AMTRAK printing account can be opened at GPO for printing sunshine act notices, etc., in the federal register. Is there an implied authority to the GPO to print by virtue of AMTRAK being placed under the sunshine act? Can GPO print amtrak's material in the federal register and bill AMTRAK for such printing?
In order to respond to these questions, an analysis of the relevant legislative provisions is necessary.
The GPO is authorized and required to do all the government's printing by 44 U.S.C. 501 (1970), which provides in pertinent part (with exceptions not relevant here) that:
All printing, binding, and blank-book work for congress, the executive office, the judiciary, other than the supreme court of the United States, and every executive department independent office and establishment of the government, shall be done at the government printing office, * * *.
Printing or binding May be done at the government printing office only when authorized by law.
The gpo's publication of the federal register is authorized by 44 U.S.C. 1504 (1970). Further, the law requires publication in the federal register of, inter alia "documents or classes of documents that May be required so to be published by act of congress." 44 U.S.C. 1505(a)(3) (1970). "Document, " as used in section 1505, is defined in 44 U.S.C. 1501 (quoted infra).
The documents in question are submitted by AMTRAK pursuant to section 3(a) of the sunshine act, public law 94-409 (September 13, 1976), 90 Stat. 1241, which requires that every meeting of an agency be announced in advance and opened to the public unless otherwise excepted, and also provides in pertinent part that:
Immediately following each public announcement required by this subsection, notice of the time, place, and subject matter of a meeting, whether the meeting is open or closed, any change in one of the preceding, and the name and phone number of the official designated by the agency to respond to requests for information about the meeting, shall also be submitted for publication in the federal register, 5 U.S.C. 552be)(3).
The act further provides:
Each agency subject to the requirements of this section shall, within 180 days after the date of enactment of this section, following consultation with the office of the chairman of the administrative conference of the United States and published notice in the federal register of at least thirty days and opportunity for written comment by any person, promulgate regulations to implement the requirements of subsection (B) through (F) of this section * * *. 5 U.S.C. 552bg).
Thus, if AMTRAK is an "agency" for purposes of the sunshine act, then GPO is authorized and required to publish this information in the federal register. Furthermore, since a finding that AMTRAK is an "agency" for purposes of 5 U.S.C. 552b would, as discussed below, require a finding that it is also an agency as defined in 5 U.S.C. 552(e), then GPO would similarly be required to publish certain material required by the freedom of information act (FOIA), 5 U.S.C. 552, and the privacy act, 5 U.S.C. 552a which both apply to agencies as defined in 5 U.S.C. 552(e).
"Agency" is defined by 5 U.S.C. 552ba)(1) to mean:
* * * any agency, as defined in section 552(e) of this title, headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the president with the advice and consent of the senate, and any subdivision thereof authorized to act on behalf of the agency;
While 5 U.S.C. 552(e) (1976) provides that:
For purposes of this section, the term "agency" as defined in section 551(1) of this title includes any executive department, military department, government Corporation, government controlled Corporation, or other establishment in the executive branch of the government (including the executive office of the president), or any independent regulatory agency.
5 U.S.C. 551(1) defines an "agency" to mean "each authority of the government of the United States, whether or not it is within or subject to review by another agency * * *" with certain exceptions not relevant here. See also 5 U.S.C. 103 concerning the terms "government corporation" and "government controlled corporation." Thus whether AMTRAK is an "agency" for purposes of the sunshine act depends upon whether it is an "agency" as defined by 5 U.S.C. 552(e) and is headed by a "collegial body" as required by 5 U.S.C. 552ba)(1).
Section 301 of the rail passenger service act of 1970, 45 U.S.C. 541 (1970), established AMTRAK as a "for profit corporation" whose purpose is to "provide intercity rail passenger service, employing innovative operating and marketing concepts so as to fully develop the potential of modern rail service in meeting the nation's intercity passenger transportation requirements." It is a mixed-ownership government corporation for purposes of the government corporation control act. U.S.C. 856. Pursuant to 45 U.S.C. 545(a), AMTRAK possesses all the usual powers conferred upon a stock corporation by the District of Columbia business corporation act, D.C. Code Secs. 29-901 et seq. (1973), which places the authority for managing corporate business affairs in the board of directors. D.C. Code Sec. 29-916.
Amtrak is governed by a board of directors who are citizens of the United States and which is comprised as follows:
Thus, there are potentially 17 members of the AMTRAK board of directors. It is clear that the 8 members specified in 45 U.S.C. 543(a)(1)(b) qualify to be counted toward the majority of the "collegial body" under 5 U.S.C. 552ba)(1). It is equally clear that the 3 members in subsection (C), the 4 members in subsection (D), and the president of the corporation do not so qualify. It May be argued that the secretary of transportation, although appointed by the president with the advice and consent of the senate, is not appointed "to such position" vis-a-vis Amtrak. However, since the secretary's membership on the AMTRAK board is a statutory EX officio position, it automatically and necessarily accompanies the appointment as secretary and should therefore, in our opinion, be viewed as an appointment "to such position" for purposes of 5 U.S.C. 552ba)(1). Therefore, we believe a majority of the AMTRAK board of directors qualifies under 5 U.S.C. 552ba)(1) and the board is thus a "collegial body" as the term is used in that subsection. We would also note that it has been indicated that there are presently no preferred stockholders, reducing the board's DE facto membership by four, the number that the preferred stockholders are authorized to Elect. While the day-by-day business of AMTRAK might be carried on by officers selected by the board of directors, it is clear that the ultimate decision-making authority is the board and thus AMTRAK is "headed by a collegial body" for purposes of the sunshine act.
The applicability of 5 U.S.C. 552ba)(1) to AMTRAK is confirmed by reference to the legislative history of the sunshine act, where, in the conference committee report, it is stated that:
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