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1. Release of Information to News Media and the
Public
a. All news releases are written by DOL’s Office of
Public Affairs. News announcements for decentralized
litigation will be prepared and released by the regional
Office of Public Affairs staff in conjunction with the
respective field office and the Regional Solicitor's Office.
EBSA field offices are responsible for coordinating the
release of information concerning criminal prosecutions with
the U.S. Attorney's Office(s) in their jurisdiction. The field
office is responsible for forwarding copies of the relevant
court documents and the issued news release to OE. Follow-up
inquiries on news announcements are to be handled by the
regional Office of Public Affairs staff originating the
document.
b. In the case of questions from news media or the public
concerning open investigations, employees are to follow the
policy of neither confirming nor denying the existence of an
investigation unless special circumstances warrant otherwise.
Whether an investigation is underway or even under
consideration should not be discussed. In those instances
where the RO is satisfied that knowledge of an open
investigation is in the public domain, the RD or Deputy RD may
confirm the existence of an investigation; however, no
comments on the investigation should be made. Requests for a
variance from this policy should be directed to the Director
of Enforcement.
2. Release of Information Pursuant to ERISA
§504
a. Section 504 of ERISA provides that the Secretary may
make available to any person actually affected by any matter
which is the subject of an investigation, and to any
department or agency of the United States, information
concerning any matter which may be the subject of such
investigation, except that any information obtained by the
Secretary pursuant to section 6103 of the Internal Revenue
Code shall be made available only in accordance with
regulations prescribed by the Secretary of the Treasury. (See
paragraph 7 for treatment of IRS information.)
b. Information concerning any matter which is the subject
of an open investigation may not be disclosed without approval
from OE/DFO. Information concerning any matter which is the
subject of a closed investigation may be disclosed pursuant to
ERISA §504, subject to the restrictions imposed by various
statutes and rules, such as the Freedom of Information Act
(see paragraph 4), the Right to Financial Privacy Act (see
paragraph 5), the Privacy Act (see paragraph 6), the Internal
Revenue Code (see paragraph 7), Rule 6(e) of the Federal Rules
of Criminal Procedure (see paragraph 8), and 18 U.S.C. §1905
prohibiting disclosure of confidential information (Figure
1).
3. Release of Information Pursuant to
Subpoena
The Department's regulations set forth at 29 CFR Part 2,
Subpart C concern responses to subpoenas, orders, or other
demands which call for the production or disclosure of
material contained in Departmental files, or information
relating to material contained in such files, in connection
with proceedings to which the Department is not a party. Those
regulations require an employee who receives a subpoena for
the production of material or disclosure of information to
immediately notify the appropriate Associate or Regional
Solicitor's Office by forwarding a copy of the subpoena,
order, or other demand calling for the production or
disclosure of material for evaluation. In addition, DFO should
be notified when a third-party subpoena has been received.
Investigators/Auditors shall not comply with a subpoena
except upon approval of the Deputy Solicitor of Labor.
Disclosure of information shall not be made without
authorization from the Deputy Solicitor even in the face of a
court order directing immediate compliance with a subpoena.
The Solicitor's Office will represent any employee ordered by
a court to comply with a subpoena.
4. Release of Information Pursuant to the Freedom of
Information Act
a. The Freedom of Information Act (FOIA), 5 U.S.C. §552,
requires federal agencies to make records promptly available
to any person whose request reasonably describes the records
sought and who complies with procedures for making such
requests. Departmental regulations concerning FOIA are found
at 29 C.F.R. Part 70.
Normally an agency must respond to a request within 20 business
days. If a response cannot be made within the 20 business day
limit, an extension of the deadline should be telephonically
obtained from the requester and subsequently confirmed in
writing to the requester.
b. Federal agencies are not required to disclose material
which falls within the nine exemptions set forth in FOIA.
These exemptions are for material concerning:
- national security or foreign policy;
- internal agency personnel rules and practices;
- specific exemptions provided for by statute;
- trade secrets and privileged or confidential commercial and financial information;
- inter-agency and intra-agency memoranda and letters not available by law to a party in litigation with the agency;
- personnel and medical files;
- law enforcement records or information;
- financial regulatory matters; and
- technical information about wells.
The exemptions most likely to be relevant to
Investigators/Auditors are those dealing with personnel rules,
commercial and financial information, inter-agency and
intra-agency communications, law enforcement records,
and financial regulatory information. See paragraph 5 for a
discussion of the exemption dealing with information from
financial regulatory agencies.
c. By Executive Order 12600 and Departmental regulations 29
CFR 70.26, Exemption 4, which addresses the protection of
documents containing trade secrets or confidential commercial
information, establishes procedures which must be met prior to
a decision to release records. When a claim of confidential
commercial information is received from a party providing
information to the Department, the case file should be
identified as containing such a request. In addition, a copy
of the request should be forwarded to OE.
Responses to FOIA requests involving information protected
by Exemption 4 should be coordinated with the appropriate RSOL.
d. The RD and DS, by regulation, are designated as FOIA
Disclosure Officers, with signatory authority for FOIA
responses.
5. Release of Information Obtained from Financial
Regulatory Agencies
a. Exemption 8 of FOIA permits officials to withhold
materials related to examination, operations, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial
institutions. Under Departmental regulations, officials must
refuse to disclose information from financial regulatory
agencies unless there is express authority permitting it.
b. The Right to Financial Privacy Act (RFPA), 12 U.S.C.
§3401 et seq., prohibits any agency or department of the
United States from obtaining financial records of a customer
from a financial institution unless the records are reasonably
described and the disclosure is authorized by the customer or
the records are disclosed in response to an administrative
subpoena which meets specific requirements as set forth in the
Act. (See paragraph 15 of Chapter 33 for a more complete
explanation of the RFPA.) Once a government agency obtains
such financial information, it may transfer the financial
records to another federal agency only if an official of the
transferring agency certifies in writing that there is reason
to believe that the records are relevant to a legitimate law
enforcement inquiry of the receiving agency. In addition,
within 14 days after any transfer, the customer must be
notified of the transfer unless the government has obtained a
court order delaying notice. See Figure 2 for a model notice
letter.
Transfer restrictions do not apply to intra-departmental
transfers or to transfers from state or local government
agencies to federal agencies or from federal to state
agencies.
6. Release of Information Subject to the Privacy
Act
a. The Privacy Act, 5 U.S.C. §552a, provides that, with
certain exceptions, an agency must not disclose any record
contained in a system of records from which information is
retrieved by the name of the individual or by some identifying
number, symbol, or other identifying particular assigned to
the individual unless it has permission of the individual to
whom the record pertains. The Privacy Act sets forth criminal
penalties for officials who willfully disclose such material
to a person or agency not entitled to receive it. Departmental
regulations concerning the Privacy Act are found at 29 C.F.R.
Part 70a.
b. The Privacy Act also provides that any agency which
maintains a system of records containing information of a
personal nature which is retrieved by name, social security
number, or some other identifying number, symbol, or
identifying particular, must ensure that administration of the
file complies with requirements in the Privacy Act. The
Department has taken the position that its investigatory files
are exempted from these requirements by reason of the
provision of the Act which exempts investigatory material
compiled for law enforcement purposes. In addition,
Departmental regulations deny disclosure to anyone, including
the individual subject of the record, of information compiled
in reasonable anticipation of a civil action or proceeding.
c. RDs or DSs have primary responsibility for Privacy Act
compliance.
7. Release of Information Obtained from the
IRS
a. IRC section 6103 generally prohibits the IRS from
disclosing federal tax returns and return information (Federal
Tax Information). However, exceptions to the general
prohibition allow the IRS to furnish tax returns and return
information to DOL for the enforcement of Title I of ERISA. As
a condition of receiving federal tax returns and return
information, DOL must establish and maintain, to the
satisfaction of the IRS, certain safeguards designed to
prevent unauthorized uses of the information and to protect
the confidentiality of that information.
b. Any DOL employee who illegally discloses tax information
received from the IRS may be subject to criminal penalties
under IRC section 7213 (a $5,000 fine, five years
imprisonment, or both), as well as civil damages under IRC
section 7431 (Figure 3). These civil and criminal penalties
apply even if the unauthorized disclosures are made after
employment with DOL has terminated.
Therefore, all employees are cautioned to insure that tax
information is not disclosed to unauthorized persons or used
for unauthorized purposes. Tax returns and return information
may be disclosed only to the extent necessary to conduct an
investigation or prepare for litigation. Among those persons
to whom returns and return information may be disclosed for
such purposes are other DOL employees, employees of other
federal agencies, and court reporters. In addition, any DOL
employee who performs an unauthorized inspection of tax
information received from the IRS may be subject to criminal
penalties under IRC section 7213A (a $1,000 fine, one year
imprisonment, or both).
c. If during any investigation, the RD or DS believes that
information in the possession of the IRS will help in carrying
out the provisions of Title I, a written request for such
information may be made to the IRS using the format found in
Figure 4. Copies of the requests should be retained a minimum
of five years.
d. Access to federal tax information must be strictly on a
need-to-know basis. Such restricted access can
be accomplished by a variety of internal safeguards, some of
which are listed below:
1. Keep federal tax information separate from other
information to the maximum extent possible. Where this proves
impractical, clearly label files to indicate that federal tax
information is included.
2. Any files containing federal tax information (including
the IRS Form 6212-B Checksheet) should be set up and
maintained in a secured area. Each office holding IRS 6103
information must maintain an EBSA Form 534 (IRS Safeguard
Inventory and Destruction Log). The files area should not
contain coffee, lounge, or similar facilities. During non-duty
hours, all areas where federal tax information is present
should be locked.
3. Do not commingle federal tax information with other
information in such a way that its confidentiality could be
inadvertently compromised. For example, when documents are
given to a clerk/typist, no federal tax information should be
included unless it is needed in performance of clerical or
typing duties.
All federal tax returns and tax information must be
maintained in accordance with the procedures set forth in EBSA
Notice No. 97-2.
e. Upon completion of use of the federal tax information,
either return the information (including any copies made) to
the office from which it was originally obtained or make the
information undisclosable by burning, mulching, pulping,
shredding, or disintegrating. These safeguards cease to apply
to any return or return information to the extent that it is
disclosed in the course of any judicial or administrative
proceeding and to the extent that it is made a part of the
public record thereof.
8. Documents Obtained from a Grand Jury
a. Rule 6(e) of the Federal Rules of Criminal Procedure
prohibits the disclosure of matters occurring before a grand
jury. A knowing violation of the rule may be punished as
contempt of court; any violation of the rule can jeopardize an
investigation to the extent that civil litigation may become
impossible.
b. If documents or transcripts of a grand jury are obtained
during an investigation, the material must be maintained in a
secure manner, and may not be disclosed to anyone, including
other DOL employees, unless that person is authorized by the
court to have access to the material. (See Chapter 52).
9. Release of Documents to Other Government Agencies
At times, another government agency may request documents from EBSA. If there is a Memorandum of Understanding (MOU) with that agency, the procedures identified in the MOU should be followed. If there is no MOU, the other agency should submit an access request letter to EBSA. If appropriate, the agency and EBSA should execute a common interest agreement.
(Figure 1)
Whoever, being an officer or employee of the United States
or of any department or agency thereof, any person acting on
behalf of the Office of Federal Housing Enterprise Oversight,
or agent of the Department of Justice as defined in the
Antitrust Civil Process Act (15 U.S.C. 1311-1314), or being an
employee of a private sector organization who is or was
assigned to an agency under chapter 37 of title 5, publishes,
divulges, discloses, or makes known in any manner or to any
extent not authorized by law any information coming to him in
the course of his employment or official duties or by reason
of any examination or investigation made by, or return, report
or record made to or filed with, such department or agency or
officer or employee thereof, which information concerns or
relates to the trade secrets, processes, operations, style of
work, or apparatus, or to the identity, confidential
statistical data, amount or source of any income, profits,
losses, or expenditures of any person, firm, partnership,
corporation, or association; or permits any income return or
copy thereof or any book containing any abstract or
particulars thereof to be seen or examined by any person
except as provided by law; shall be fined under this title, or
imprisoned not more than one year, or both; and shall be
removed from office or employment.
(Figure 2)
Dear (Name of Customer):
Copies of, or information contained in, your financial
records lawfully in the possession of the Employee Benefits
Security Administration, U.S. Department of Labor, have been
furnished to ____________________________ (Government Agency)
pursuant to the Right to Financial Privacy Act of 1978 for the
following purpose(s):
If you believe that this transfer has not been made to
further a legitimate law enforcement inquiry, you may have
legal rights under the Right to Financial Privacy Act of 1978
or the Privacy Act of 1974.
Sincerely,
Regional Director
(Figure 3)
Sec. 7213(a)(1) [Internal Revenue Code of 1986]
Federal Employees and other Persons -- It shall be unlawful
for any officer or employee of the United States or any person
described in section 6103(n) (or an officer or employee of any
such person), or any former officer or employee, willfully to
disclose to any person, except as authorized in this title,
any return or return information (as defined in section
6103(b)). Any violation of this paragraph shall be a felony
punishable upon conviction by a fine in an amount not
exceeding $5,000, or imprisonment of not more than 5 years, or
both, together with the cost of prosecution, and if such
offense is committed by any officer or employee of the United
States, he shall, in addition to any other punishment, be
dismissed from office or discharged from employment upon
conviction for such offense.
Sec.7431(a)(1) [Internal Revenue Code of 1986]
Disclosure by Employee of United States -- If any officer
or employee of the United States knowingly, or by reason of
negligence, discloses any return or return information with
respect to a taxpayer in violation of any provision of section
6103, such taxpayer may bring a civil action for damages
against the United States in a district court of the United
States.
(Figure 4)
Internal Revenue Service
Manager, EP Classification
31 Hopkins Plaza
Room 1520
Baltimore, MD 21201
RE: Name and address of plan
EIN
EBSA Case No.
Dear _____________________:
In connection with the administration of Title I of the
Employee Retirement Income Security Act of 1974 (ERISA), and a
current investigation conducted by the Employee Benefits
Security Administration (EBSA) it is requested that you make
available to this office, pursuant to section 6103(l)(2) of
the Internal Revenue Code, the following documents: [Choose
from below as applicable.]
1. Any reports, reports of investigation or interview, or
memoranda related to the above-referenced plan, its
sponsor or fiduciaries and any work papers related thereto or
related to any audit of the above-referenced plan or
its sponsors, including, but not limited to, any conclusive
findings developed by the District Office as a result of its
investigation and review. The reports of investigation,
interviews or memoranda requested include information relating
to any exclusive benefit rule/fiduciary disqualification of
the plan.
2. Any correspondence or memoranda reflecting
communications between the IRS and the above-referenced
plan, its sponsors or its fiduciaries in regard to any of the
above, including, but not limited to, any tax exempt status
and IRS responses.
3. Reports or documents of any nature, plus attachments,
filed by or obtained from the above-referenced plan,
its sponsors, its fiduciaries, and any other persons
affiliated with the above-referenced plan.
4. Tax returns filed by the following
individuals/partnerships for the years:
Name and Address
Social Security No.
I would appreciate your furnishing the requested documents
and, if necessary, discussing their contents with the
following individuals of the Department of Labor (select as
appropriate and state proper names):
Regional Office, EBSA
Regional Director
Deputy Regional Director
District Supervisor
Supervisory Investigator
Investigator/Auditor
National Office, EBSA
Director of Enforcement
Chief, Division of Field Operations
Criminal Coordinator, Office of Enforcement
Investigator/Auditor
Office of the Solicitor
Solicitor
Associate Solicitor, Plan Benefits Security Division (PBSD)
Deputy Associate Solicitor, PBSD
Counsel for Regulations, PBSD
Counsel for General Litigation, PBSD
Counsel for Fiduciary Litigation, PBSD
Counsel for Appellate and/or RSOL Decentralized Litigation,
PBSD
Staff Attorney, PBSD
Regional Solicitor
Staff Attorney, RSOL
This information is necessary and is being requested for
the purpose of the administration of Title I of ERISA. It is
understood that the information furnished by the Internal
Revenue Service will be used strictly in accordance with, and
subject to the limitations of, the disclosure provisions of
the Internal Revenue Code pertaining to confidentiality and
taxpayer rights to privacy. The Department of Labor
representatives are also aware of the penalty provisions of
section 7213 of the Internal Revenue Code and section 1905 of
Title 18 of the United States Code with respect to their use
of this information.
Sincerely,
Regional Director/District Supervisor
cc: Director of Enforcement
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