and may not be disclosed in court or to a private person. Mrs. Ferguson is unquestionably a prospective claimant for benefits. She must prove her husband to be dead in order to collect. The testimony of Mengel has defeated her prospects of collecting. The government will not assist her, however, in locating her husband by revealing his whereabouts. It appears that Section 401.3(g)(3) authorizes the disclosure of the whereabouts only to officers and employees of an agency of a state government charged with the administrations of a program receiving grants-in-aid under Title 4 of the Social Security Act. Under that Section, the whereabouts of a deserting parent of a child eligible for aid to dependent children may be disclosed only to employees of the state. This is not the situation here.
It is not for this court to make rules for the Social Security Administration. It is an instance where, no doubt, the wife should be assisted in getting the information as to her husband's whereabouts, but it appears that that must be done through a state inquiry as provided in the statute. What is before this court to decide is whether or not Mengel was guilty of contempt in declining to answer the question as to Ferguson's whereabouts. Generally speaking contempt of court may be defined as a disobedience to the court by acting in opposition to its authority, justice and dignity. (17 C.J.S. Contempt 2). In his argument before this court, F. Joseph Thomas, Esq., attorney for Mrs. Ferguson, who put the questions to Mengel before the Orphans' Court, was careful and specific in stating that he believed Mengel was acting in good faith and in accordance with his instructions in declining to answer the questions put to him. Thus, immediately the witness was not guilty of any contumacious conduct. It appears that the witness was respectful in his attitude and in his bearing while on the witness stand.
Boske v. Comingore, 177 U.S. 459, 20 S. Ct. 701, 44 L. Ed. 846 (1900) and U.S. ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S. Ct. 416, 95 L. Ed. 417 (1951), both decisions in the Supreme Court of the United States, throw considerable light on what this decision should be. In each of those cases, a subordinate employee was held justified in refusing to disclose or produce certain information because his department regulations prevented it. Mr. Justice Harlan, in Boske v. Comingore, supra, 177 U.S. at page 470, 20 S. Ct. at page 706 stated:
'In our opinion the Secretary, under the regulations as to the custody, use, and preservation of the records, papers, and property appertaining to the business of his department, may take from a subordinate, such as a collector, all discretion as to permitting the records in his custody to be used for any other purpose than the collection of the revenue, and reserve for his own determination all matters of that character.'
Compare also the Appeal of United States Securities & Exchange Commission, 226 F.2d 501, (C.A.6th, 1955) where it was held that even if the general counsel of the Securities & Exchange Commission was in error in his interpretation of the law and regulations upon which he based his refusal to produce Securities & Exchange Commission records to the court, it was not a proper situation in which to hold him in contempt of court. The court said, at page 520:
'An attorney is entitled to consideration of a claimed privilege not to disclose information which he honestly regards as confidential and should not stand in danger of imprisonment for asserting * * * what he considers to be lawful rights.' (Emphasis supplied)
Under the circumstances presented, as they appeared at the state court hearing, Mengel is supported by the statute in his refusal to answer. And further, he respectfully declined to answer as he was required to do under the statute. Mr. Thomas stated in court at the argument:
'I think I should say in fairness to Mr. Mengel, that this was nothing malicious on his part. He felt that he was doing what his superiors told him to do under the sections of law which are now at issue before the court.'
The conclusion must be that the evidence does not show Mengel guilty of contempt. For the reasons stated he is found to be free from contempt and an appropriate order will be entered.
This opinion is regarded as comprising the findings of fact and conclusions of law.
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