Plan data disclosure to government commission

P/OPINION 75-94


                                                       404✓
                                                       406


                        November 14, 1975


Dear              :

This is in response to your letter of October 7, 1975,
in which you inquired whether, in the absence of language
in the trust instrument which restricts or precludes
the trustees of a union pension trust fund from authorizing
voluntary disclosure of data to a government agency, such
disclosure would be prohibited by section 406 of the
Employee Retirement Income Security Act of 1974 (the Act),
and, if not, whether any provision of the Act would preclude
such a trust fund from assuming the reasonable costs of
producing the data requested by the government agency.

Section 406(a) of the Act prohibits a fiduciary (as
defined in section 3(21) of the Act) with respect to
an employee benefit plan from knowingly causing the plan
to engage in certain specified transactions with any
party in interest, as that term is defined in section
3(14) of the Act. I am enclosing a copy of the Act for
your convenience. As you will note, section 3(14)
does not include government agencies within the definition
of "party in interest." Therefore, the
Commission may receive the voluntary disclosure of plan data
without engaging in a prohibited transaction under section
406 of the Act.

With respect to your second inquiry, it should be noted
that section 404(a)(1)(A) of the Act provides that plan
fiduciaries shall discharge their duties with respect to
a plan solely in the interests of the participants and
beneficiaries of the plan and for the exclusive purpose
of providing benefits to participants and beneficiaries
and defraying the reasonable expenses of administering
the plan. A decision as to what constitutes a reasonable
expense of administering a plan must be made by the
appropriate plan fiduciary or fiduciaries authorized by
the plan instruments to make such determinations taking
into account the plan's purposes and objectives. If the
subject pension trust fund's cost in producing the data
requested by the Commission is a reasonable expense of
administering the plan in light of the plan's purpose
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P/OPINION 75-94


and objectives, the Act would not preclude such an expenditure
of plan assets. It should be noted that this second question
would not be raised if the                 Commission were to
pay the cost of producing the data requested by the Commission.

Sincerely,