The Department of Justice Inspector General's Access to Information Protected by the Federal Wiretap Act, Rule 6(e) of the Federal Rules of Criminal Procedure, and Section 626 of the Fair Credit Reporting Act ( 2015 )

The Department of Justice Inspector General’s Access to
Information Protected by the Federal Wiretap Act,
Rule 6(e) of the Federal Rules of Criminal Procedure,
and Section 626 of the Fair Credit Reporting Act
Department of Justice officials may disclose information protected by the Federal Wiretap Act (Title III
of the Omnibus Crime Control and Safe Streets Act of 1968), Rule 6(e) of the Federal Rules of
Criminal Procedure, and section 626 of the Fair Credit Reporting Act to the Department’s Office of
Inspector General (“OIG”) in connection with many, but not all, of OIG’s investigations and reviews.
Section 6(a)(1) of the Inspector General Act of 1978 does not supersede the limitations on disclosure
contained in Title III, Rule 6(e), and section 626.
Section 218 of the Consolidated and Further Continuing Appropriations Act, 2015, also does not
supersede the limitations on disclosure contained in Title III, Rule 6(e), and section 626.
July 20, 2015
MEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL *
You have asked whether the Department of Justice (the “Department”) may
lawfully provide the Department’s Office of the Inspector General (“OIG”) with
access to documents containing certain kinds of statutorily protected information. 1
In particular, you have asked whether the Department may grant OIG access, in
connection with OIG audits, investigations, and reviews, to information protected
by the Federal Wiretap Act, Title III of the Omnibus Crime Control and Safe Streets
Act of 1968, as amended, 18 U.S.C. §§ 2510–2522 (“Title III”); Rule 6(e) of the
Federal Rules of Criminal Procedure (“Rule 6(e)”); and section 626 of the Fair
Credit Reporting Act, 15 U.S.C. § 1681u (“FCRA”). Subject to certain exceptions,
*
Editor’s Note: Since this opinion was issued, Congress amended section 6(a) of the Inspector
General Act to provide that inspectors general are authorized “to have timely access to all records,
reports, audits, reviews, documents, papers, recommendations, or other materials available to the
applicable establishment which relate to the programs and operations with respect to which that Inspector
General ha responsibilities under this Act . . . notwithstanding any other provision of law, except
pursuant to any provision of law enacted by Congress that expressly . . . refers to the Inspector General;
and . . . limits the right of access of the Inspector General.” Inspector General Empowerment Act of 2016,
Pub. L. No. 114-317, sec. 5(1), § 6(a)(1)(A), (B) (codified at 5 U.S.C. app. § 6(a)(1)(A), (B)). The
amended statute also provides a special procedure for access to “Federal grand jury materials protected
from disclosure pursuant to rule 6(e) of the Federal Rules of Criminal Procedure.” Id. § 6(a)(1)(C)). We
analyzed inspector general access under statutory provisions similar to those in the amended section 6(a)
in Authority of the Department of Justice to Disclose Statutorily Protected Materials to Its Inspector
General in Light of Section 540 of the Commerce, Justice, Science, and Related Agencies Appropriations
Act, 2016, 40 Op. O.L.C. __ (Apr. 27, 2016), http://www.justice.gov/olc/opinions.htm.
1
See Memorandum for Karl Thompson, Acting Assistant Attorney General, Office of Legal Counsel,
from James M. Cole, Deputy Attorney General (May 24, 2014) (“Opinion Request”). Our Office received
a request for an opinion on the same subject in 2011, but that request was withdrawn. See Letter for
Cynthia Schnedar, Acting Inspector General, from James M. Cole, Deputy Attorney General (Mar. 16,
2012). In preparing this opinion, we have considered views submitted in connection with both requests.
1
Opinions of the Office of Legal Counsel in Volume 39
each of these statutes restricts the disclosure of particular categories of information:
Title III limits the Department’s authority to disclose the contents of intercepted
communications; Rule 6(e) limits the Department’s authority to disclose grand jury
materials; and section 626 of FCRA limits the authority of the Federal Bureau of
Investigation (“FBI”) to disclose consumer information obtained pursuant to
National Security Letters issued under section 626. At the same time, however,
section 6(a)(1) of the Inspector General Act of 1978, as amended, 5 U.S.C. app. (the
“IG Act”), authorizes OIG “to have access to all records, reports, audits, reviews,
documents, papers, recommendations, or other material” available to the
Department and relevant to the programs and operations OIG is charged with
reviewing. 5 U.S.C. app. § 6(a)(1).
In views letters submitted in connection with the preparation of this opinion,
OIG, together with certain other interested entities, argues that section 6(a)(1) of the
IG Act grants it an unqualified right of access to Department records relevant to its
audits, investigations, and reviews, notwithstanding any limitations on disclosure
imposed by Title III, Rule 6(e), or section 626 of FCRA. OIG also argues that, even
leaving section 6(a)(1) aside, the relevant statutory exceptions in Title III, Rule 6(e),
and section 626 permit the Department and its components to disclose protected
information to OIG when that information is pertinent to its audits, investigations,
or reviews. Certain other Department components disagree, arguing that the
statutory exceptions in Title III, Rule 6(e), and section 626 permit disclosure of
protected information to OIG only in a limited set of circumstances, and that the
limits on disclosure apply even when OIG requests material under section 6(a)(1)
of the IG Act. 2
2
See E-mail for John E. Bies, Deputy Assistant Attorney General, Office of Legal Counsel, from
William M. Blier, General Counsel, OIG (Apr. 29, 2015 6:37 PM) (“OIG 2015 E-mail”); Memorandum
for the Acting Assistant Attorney General, Office of Legal Counsel, from Michael E. Horowitz, Inspector
General (June 24, 2014) (“OIG 2014 Memorandum”); Memorandum for the Attorney General from
Cynthia A. Schnedar, Acting Inspector General (Dec. 16, 2011) (“OIG Grand Jury Memorandum”);
Memorandum for the Deputy Attorney General from Cynthia A. Schnedar, Acting Inspector General
(Dec. 16, 2011) (“OIG Title III Memorandum”); Memorandum for the Deputy Attorney General from
Cynthia A. Schnedar, Acting Inspector General (Dec. 6, 2011) (“OIG FCRA Memorandum”);
Memorandum for Caroline D. Krass, Principal Deputy Assistant Attorney General, Office of Legal
Counsel, from Carol F. Ochoa, Assistant Inspector General, Oversight and Review Division (Mar. 9,
2011) (“OIG Supplemental Memorandum”); Memorandum for Paul P. Colborn, Special Counsel, Office
of Legal Counsel, from Carol F. Ochoa, Assistant Inspector General, Oversight and Review Division
(Dec. 17, 2010) (“OIG Memorandum”); see also Memorandum for John Bies, Deputy Assistant Attorney
General, Office of Legal Counsel, from Leslie R. Caldwell, Assistant Attorney General, Criminal
Division (July 14, 2014); Letter for John E. Bies, Deputy Assistant Attorney General, Office of Legal
Counsel, from Phyllis K. Fong, Chair, and Lynne A. McFarland, Vice Chair, Council of the Inspectors
General on Integrity and Efficiency (“CIGIE”) (June 24, 2014); Memorandum for John E. Bies, Deputy
Assistant Attorney General, Office of Legal Counsel, from G. Bradley Weinsheimer, Deputy Counsel,
Office of Professional Responsibility (June 24, 2014); E-mail for John E. Bies, Deputy Assistant
Attorney General, Office of Legal Counsel, from Jocelyn Aqua, National Security Division (Mar. 2, 2012
3:54 PM) (“NSD E-mail”); Memorandum for Virginia A. Seitz, Assistant Attorney General, Office of
2
Department of Justice Inspector General’s Access to Information
For the reasons set forth below, we conclude that the statutory exceptions in
Title III, Rule 6(e), and section 626 of FCRA permit the Department to disclose to
OIG the covered information it seeks in most, but not all, of the circumstances in
which OIG might request it. In particular, Title III permits Department officials to
disclose to OIG the contents of intercepted communications when doing so could
aid the disclosing official or OIG in the performance of their duties related to law
enforcement, including duties related to Department leadership’s supervision of law
enforcement activities on a programmatic or policy basis. Rule 6(e) permits
disclosure of grand jury materials to OIG if a qualifying attorney determines that
such disclosure could assist her in the performance of her criminal law enforcement
duties, including any supervisory law enforcement duties she may have. And FCRA
permits the FBI to disclose to OIG consumer information obtained pursuant to
section 626 if such disclosure could assist in the approval or conduct of foreign
counterintelligence investigations, including in the supervision of such
investigations on a programmatic or policy basis. In our view, however, Title III and
Rule 6(e) forbid disclosures that have either an attenuated or no connection with the
conduct of the Department’s criminal law enforcement programs or operations, and
section 626 of FCRA forbids disclosures that have either an attenuated or no
connection with the approval or conduct of foreign counterintelligence
investigations.
We further conclude that, to the extent that Title III, Rule 6(e), and section 626
prohibit Department officials from disclosing information to OIG, section 6(a)(1)
of the IG Act does not override these prohibitions. Under longstanding interpretive
principles, general access provisions like section 6(a)(1) are generally construed not
to override specific, carefully drawn limitations on disclosure like Title III,
Rule 6(e), and section 626 unless Congress has clearly indicated that it intends the
general access provision to have that effect. And in our view, the text of the IG Act
contains no clear indication that Congress intended section 6(a)(1) to override
Title III, Rule 6(e), or section 626. The Act’s legislative history, moreover,
Legal Counsel, from Lanny A. Breuer, Assistant Attorney General, Criminal Division (Feb. 16, 2012);
Letter for John E. Bies, Deputy Assistant Attorney General, Office of Legal Counsel, from Phyllis K.
Fong, Chair, and Carl Clinefelter, Vice Chair, CIGIE (Oct. 7, 2011); Memorandum for the Office of the
Deputy Attorney General, from Patrick W. Kelley, Acting General Counsel, FBI (Oct. 5, 2011);
Memorandum for John Bies, Deputy Assistant Attorney General, Office of Legal Counsel, from Lanny
A. Breuer, Assistant Attorney General, Criminal Division (Apr. 12, 2011); Memorandum for Jonathan
G. Cedarbaum, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Valerie
Caproni, General Counsel, FBI (Jan. 13, 2011) (“FBI Memorandum”).
In addition, although the Office does not solicit views from outside the Executive Branch, we
received a letter concerning the issues addressed in this opinion from Senator Charles E. Grassley and
Representative John Conyers, then-Ranking Members of the Senate and House Committees on the
Judiciary. See Letter for Karl R. Thompson, Acting Assistant Attorney General, Office of Legal Counsel,
from Charles E. Grassley, Ranking Member, Committee on the Judiciary, U.S. Senate, and John Conyers,
Ranking Member, Committee on the Judiciary, U.S. House of Representatives (Oct. 10, 2014). We
appreciate Senator Grassley’s and Representative Conyers’ interest in these issues, and have considered
their views in preparing this opinion.
3
Opinions of the Office of Legal Counsel in Volume 39
affirmatively indicates that Congress expected an inspector general’s right of access
to be subject to statutory limits on disclosure.
In reaching these conclusions, our Office’s role has not been to decide what
access OIG should receive as a matter of policy. Rather, we have endeavored to
determine as a matter of law, using established tools of statutory construction, how
best to reconcile the strong privacy protections embodied in Title III, Rule 6(e), and
section 626 with the interest in access reflected in section 6(a)(1) of the IG Act.
This opinion has four parts. In Part I, we set forth some statutory background
related to the IG Act, and explain the potential statutory conflict that arises when
OIG, relying on the IG Act’s general access provision, requests material that is also
covered by the nondisclosure provisions in Title III, Rule 6(e), or section 626 of
FCRA. In Part II, we examine Title III, Rule 6(e), and section 626 to determine
whether the exceptions in those statutes permit disclosure of the protected materials
OIG seeks, thereby avoiding the potential conflict between those statutes and the IG
Act. In Part III, having concluded that this conflict cannot be avoided in all
circumstances, we explain why, in our view, the general access provision in section
6(a)(1) of the IG Act does not override the specific protections of sensitive informa-
tion contained in Title III, Rule 6(e), and section 626. Finally, in Part IV, we discuss
a Fiscal Year 2015 appropriations rider concerning the disclosure of Department
materials to OIG and conclude that it too does not abrogate the specific protections
of sensitive information found in those statutes. 3
I.
Congress enacted the IG Act in 1978 to “create independent and objective units”
within the Executive Branch that would promote the integrity of executive agencies
and keep executive officials and Congress fully informed about their operations.
5 U.S.C. app. § 2. To achieve these goals, the Act created an Office of Inspector
General in a large number of federal agencies. Id. §§ 2(A), 8G(a)–(b), 12(2). 4 Each
office is led by an inspector general who is charged with auditing, investigating,
detecting fraud and abuse in, and making recommendations and reports about the
agency’s “programs and operations.” Id. §§ 3(a), 4(a), 5. Each inspector general
must “keep the head of [his agency] and the Congress fully and currently informed”
3
You have asked only whether it would be “lawful[]” for the Department to provide OIG information
protected by Title III, Rule 6(e), and section 626 of FCRA. Opinion Request. Accordingly, we do not
address in this opinion whether and, if so, under what circumstances the Department could lawfully
withhold information it is legally permitted to disclose.
4
The IG Act uses the term “establishment” to refer to those enumerated agencies, departments,
commissions, boards, and corporations in which Congress created an Office of the Inspector General.
5 U.S.C. app. § 12(2). The Act also refers to “designated Federal entit[ies],” defined to include a different
list of government corporations and other entities, and directs that “there shall be established and
maintained in each designated Federal entity an Office of Inspector General.” Id. § 8G(b). Throughout
this opinion, we will refer to the federal establishments and entities subject to the IG Act, collectively,
as “agencies.”
4
Department of Justice Inspector General’s Access to Information
about fraud, abuse, deficiencies, and other serious problems in “the administration
of programs and operations administered or financed by such” agency, and
“recommend corrective action” to address any problems he identifies. Id. § 4(a)(5).
Inspectors general must “report to” and are placed “under the general supervision
of” the heads of their agencies. However, the head of an agency generally may not
“prevent or prohibit the Inspector General from initiating, carrying out, or
completing any audit or investigation.” Id. § 3(a).
Pursuant to their statutory mandate, inspectors general engage in a wide variety
of audits, investigations, and reviews. The Department’s OIG, for example, con-
ducts investigations of suspected criminal wrongdoing by Department employees;
investigations of administrative misconduct that may or may not rise to the level of
criminal wrongdoing; and broader reviews of Department programs and operations
that seek to assess whether the programs are lawful, well-run, or otherwise in the
public interest. See Office of the Inspector General, U.S. Dep’t of Justice,
Semiannual Report to Congress: Apr. 1, 2014–Sept. 30, 2014, at 13–14 (Oct. 31,
2014) (“Semiannual Report”); 28 C.F.R. § 0.29a(b)(2), (4). The Department’s OIG
also conducts financial and administrative audits of Department components. See
Semiannual Report at 13; 28 C.F.R. § 0.29a(b)(1). Significantly, however, while the
IG Act affords inspectors general broad authority to investigate an agency’s
programs and operations, it does not in most cases allow inspectors general to
conduct activities “constituting an integral part of the programs involved,” Inspector
General Authority to Conduct Regulatory Investigations, 13 Op. O.L.C. 54, 62
(1989) (“Authority to Conduct Regulatory Investigations”), and it prohibits the
heads of federal agencies from transferring to inspectors general any of the agency’s
“program operating responsibilities,” 5 U.S.C. app. § 9(a). 5
The IG Act also grants inspectors general several enumerated authorities that
help them carry out their statutory duties, such as the authority to issue subpoenas,
take sworn testimony, and hire staff. See id. § 6(a)(4), (5), (7). Especially relevant
here is the authority to obtain records and other materials from the agency over
which an inspector general has investigative jurisdiction. This authority is set forth
in section 6(a)(1), which provides:
[E]ach Inspector General, in carrying out the provisions of this Act, is
authorized . . . to have access to all records, reports, audits, reviews,
documents, papers, recommendations, or other material available to
the applicable [agency] which relate to programs and operations with
5
Some of OIG’s statutory responsibilities, such as conducting investigations of suspected criminal
wrongdoing by Department employees, see 5 U.S.C. app. § 8E(b)(2), (4), may involve the same kinds of
activities as the “program operating responsibilities” of other Department components. The IG Act does
not prevent OIG from carrying out these activities pursuant to its statutory authority. See Authority to
Conduct Regulatory Investigations, 13 Op. O.L.C. at 66–67 & n.21.
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Opinions of the Office of Legal Counsel in Volume 39
respect to which that Inspector General has responsibilities under this
Act.
Id. § 6(a)(1). In addition to granting each inspector general access to materials
available to his agency and within his investigative jurisdiction, this provision
implicitly imposes a corresponding duty on the applicable agency to provide the
inspector general with such access upon request.
In the case of the Department (and certain other agencies), however, the IG Act
qualifies this broad disclosure requirement. As originally enacted, the IG Act did not
establish an Office of the Inspector General in the Justice Department. When Congress
extended the Act’s provisions to the Department in 1988, see Inspector General Act
Amendments of 1988, Pub. L. No. 100-504, § 102(c), 102 Stat. 2515, 2515–16,
Congress limited OIG’s authority to investigate matters involving certain kinds of
information, in recognition of the sensitivity of much of the Department’s work, see
H.R. Rep. No. 100-1020, at 24 (1988) (Conf. Rep.). Specifically, section 8E(a)(1) of
the Act provides that the Department’s Inspector General “shall be under the authority,
direction, and control of the Attorney General with respect to audits or investigations,
or the issuance of subpenas, which require access to sensitive information concerning”
certain enumerated matters, such as “ongoing civil or criminal investigations or
proceedings,” “undercover operations,” and “other matters the disclosure of which
would constitute a serious threat to national security.” 5 U.S.C. app. § 8E(a)(1).
Section 8E(a)(2) similarly provides that the Attorney General may “prohibit the
Inspector General from carrying out or completing any audit or investigation . . . if the
Attorney General determines that such prohibition is necessary to prevent the
disclosure of any information described under [section 8E(a)(1)] or to prevent the
significant impairment to the national interests of the United States.” Id. § 8E(a)(2).
Section 8E thus provides a mechanism through which the Attorney General can
“prevent the disclosure” of certain sensitive information to which OIG would
otherwise be entitled under section 6(a)(1). Id.
The IG Act, moreover, is not in all circumstances the only statute that governs
OIG’s access to Department materials. As noted above, in conducting its audits,
investigations, and reviews, OIG has sometimes requested materials that include
the contents of wire, oral, or electronic communications the Department has
intercepted pursuant to Title III; information the Department has acquired in the
course of grand jury proceedings; and consumer information the FBI has obtained
using National Security Letters issued under section 626 of FCRA. And while
such information falls within the broad terms of section 6(a)(1) of the IG Act, its
use and disclosure is also regulated, and in many circumstances prohibited, by
Title III, Rule 6(e), and section 626. 6 Specifically, as we discuss in more detail
6
Because Congress enacted Rule 6(e) in 1977, see Pub. L. No. 95-78, § 2, 91 Stat. 319, 319, it is “by
any definition . . . a statute.” Fund for Constitutional Gov’t v. Nat’l Archives & Records Serv., 656 F.2d
6Department of Justice Inspector General’s Access to Information
below, Title III bars investigative and law enforcement officers from using or
disclosing the contents of lawfully intercepted communications unless a statutory
exception to Title III’s disclosure prohibitions applies, see 18 U.S.C. § 2517, and
imposes administrative, civil, and sometimes criminal sanctions for unauthorized
disclosure, see id. §§ 2520(a), (f), (g), 2511(1)(e), (4)(a). Rule 6(e) prohibits
“attorney[s] for the government” and other specified individuals from disclosing
“a matter occurring before the grand jury” except pursuant to a specific exception,
Fed. R. Crim. P. 6(e)(2)(B), and makes a knowing violation of that prohibition
punishable “as a contempt of court,” id. 6(e)(7). And section 626 of FCRA
prohibits the FBI from disclosing consumer information obtained pursuant to a
National Security Letter (a kind of written request for information in connection
with a counterterrorism or intelligence investigation) except as authorized by one
of the exceptions provided in the statute, see 15 U.S.C. § 1681u(f), and makes
unauthorized disclosure a basis for civil damages and disciplinary action, see id.
§ 1681u(i)–(j).
As a result, in responding to OIG requests for materials covered by Title III,
Rule 6(e), or section 626, Department officials face potentially conflicting statutory
directives. Title III, Rule 6(e), and section 626 prohibit the Department from
disclosing such materials—on pain of contempt, administrative and civil sanctions,
and sometimes criminal penalties—unless a statutory exception applies. The IG Act,
in contrast, requires the Department to disclose “all” materials that are available to
the Department, relate to an OIG review of programs or operations within its
investigative jurisdiction, and are not covered by a determination to withhold them
under section 8E.
Where two statutes govern the same subject matter, the Supreme Court has
instructed that the statutes are to be read in pari materia and construed, where
possible, as part of a single and coherent regulatory scheme. See Morton v. Mancari,
417 U.S. 535, 551 (1974) (“When there are two acts upon the same subject, the rule
is to give effect to both if possible.” (quoting United States v. Borden Co., 308 U.S.
188, 198 (1939))); see also, e.g., FCC v. NextWave Personal Commc’ns, 537 U.S.
293, 304 (2003); J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124,
143–44 (2001); Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528,
533 (1995); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018 (1984). Only where
a harmonious construction of two statutes is impossible should one be construed as
overriding or implicitly repealing the other. Morton, 417 U.S. at 551. Accordingly,
before considering whether the general access requirement in section 6(a)(1) of the
IG Act overrides the disclosure restrictions in Title III, Rule 6(e), and section 626
of FCRA, we examine the latter three statutes to determine whether and to what
extent they permit disclosures to OIG.
856, 867 (D.C. Cir. 1981) (concluding that grand jury information protected from disclosure by Rule 6(e)
is information “specifically exempted from disclosure by statute” within the meaning of Exemption 3 of
the Freedom of Information Act, 5 U.S.C. § 552(b)(3)).
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II.
A.
We begin with Title III. Congress enacted this statute in the wake of the Supreme
Court’s decisions in Berger v. New York, 388 U.S. 41 (1967), and Katz v. United
States, 389 U.S. 347 (1967), which held that electronic surveillance constitutes a
search subject to the limits imposed by the Fourth Amendment. In response to these
rulings, Congress created a comprehensive statutory scheme governing the inter-
ception, use, and disclosure of wire, oral, and electronic communications, see 18
U.S.C. §§ 2510–2522, thereby establishing a mechanism through which law enforce-
ment officials could conduct electronic surveillance in a manner that “me[t] the
constitutional requirements” enunciated in Berger and Katz. United States v. U.S. Dist.
Court for E. Dist. of Mich., S. Div., 407 U.S. 297, 302 (1972); see Scott v. United
States, 436 U.S. 128, 130 (1978) (noting that Title III was intended to “provide law
enforcement officials with some of the tools thought necessary to combat crime
without unnecessarily infringing upon the right of individual privacy”). Title III
permits the Attorney General and other Department leadership officials to authorize
investigative or law enforcement officers to apply for court orders allowing them to
intercept wire, oral, or electronic communications. See 18 U.S.C. §§ 2510, 2516(1),
(3), 2518(1)(a); see also id. § 2516(2) (authorizing applications by certain state
attorneys). And it permits courts to grant such orders if the government makes a series
of procedural and evidentiary showings, including a showing that the interception
“may provide or has provided” evidence of any of dozens of enumerated federal
offenses (or, for the interception of an electronic communication, evidence of “any
Federal felony”). Id. §§ 2516(1), (3), 2518.
Once an investigative or law enforcement officer has lawfully intercepted a
communication, Title III prohibits that officer from further disclosing the contents
of the communication—and, as noted above, subjects her to potential
administrative, civil, or criminal sanctions if she does so—unless section 2517
authorizes the disclosure. See Title III Electronic Surveillance Material and the
Intelligence Community, 24 Op. O.L.C. 261, 270–71 n.12, 272 (2000) (“Title III
Intelligence Community”); 18 U.S.C. § 2520(a), (f), (g) (authorizing civil damages
and administrative discipline for willful disclosures); id. § 2511(1)(e), (4)(a)
(authorizing criminal penalties for certain intentional disclosures). One provision in
section 2517, section 2517(1), is particularly relevant here. It provides that
[a]ny investigative or law enforcement officer who, by any means
authorized by this chapter, has obtained knowledge of the contents of
any wire, oral, or electronic communication, or evidence derived
therefrom, may disclose such contents to another investigative or law
enforcement officer to the extent that such disclosure is appropriate to
the proper performance of the official duties of the officer making or
receiving the disclosure.
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Department of Justice Inspector General’s Access to Information
18 U.S.C. § 2517(1). This provision thus permits disclosure of the contents of a
lawfully intercepted communication if the disclosure is made (1) by an
“investigative or law enforcement officer,” (2) “to another investigative or law
enforcement officer,” (3) “to [an] extent . . . appropriate to the proper performance
of the official duties of the officer making or receiving the disclosure.” A separate
provision in Title III, section 2510(7), defines an “[i]nvestigative or law
enforcement officer” as “any officer of the United States or of a State or political
subdivision thereof, who is empowered by law to conduct investigations of or to
make arrests for offenses enumerated in this chapter, and any attorney authorized
by law to prosecute or participate in the prosecution of such offenses.” Id. § 2510(7).
OIG contends that section 2517(1) authorizes Department investigative and law
enforcement officers to disclose the contents of lawfully intercepted
communications to OIG whenever OIG deems such information pertinent to any of
its investigations. It observes that, in a prior opinion, this Office “determined that
OIG agents . . . qualify as ‘investigative officers’ authorized to disclose or receive
Title III information.” OIG 2014 Memorandum at 11 (citing Whether Agents of the
Department of Justice Office of Inspector General are “Investigative or Law
Enforcement Officers” Within the Meaning of 18 U.S.C. § 2510(7), 14 Op. O.L.C.
107, 109–10 (1990) (“Investigative Officers”)). And OIG contends that disclosures
to assist in its audits, investigations, and reviews are invariably “appropriate to the
proper performance of the official duties of the officer making or receiving the
disclosure” for two different (and in its view independently sufficient) reasons. First,
it argues that under an ordinary understanding of the term “official duties,”
disclosing Title III materials to OIG will always be appropriate to both the official
duties of the Department officials disclosing the materials (because those officials
have a duty to cooperate with OIG’s audits, investigations, and reviews) and the
official duties of the OIG agents receiving the materials (because the IG Act gives
them a duty to investigate the Department). Second, OIG argues that even if “official
duties” are limited to duties related to law enforcement—as this Office concluded
in a 2000 opinion—all of OIG’s audits, investigations, and reviews still qualify for
disclosure, because they involve either investigations of alleged criminal
wrongdoing by Department employees, investigations of alleged administrative
misconduct that might lead to discovery of criminal violations, or reviews of the
Department’s criminal law enforcement programs for purposes of “supervision or
oversight.” OIG Title III Memorandum at 2; see OIG 2014 Memorandum at 10–12;
cf. OIG Supplemental Memorandum at 35–38.
We address these arguments in the two sections that follow. In the first section,
we conclude that OIG is correct that OIG agents qualify as “investigative officers”
who may receive Title III information, but—consistent with the conclusion in our
2000 opinion—disagree with OIG’s broad argument that Title III permits disclosure
in connection with duties unrelated to law enforcement. In the second section, we
substantially agree with OIG’s narrower argument—namely, that disclosures to
OIG agents will frequently assist the official law-enforcement-related duties of
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either the officer making or the officer receiving the disclosure. In particular, we
conclude that Title III permits disclosure in connection with OIG reviews that
concern, or are designed to develop recommendations about, the conduct of the
Department’s criminal law enforcement programs, policies, or practices. As we
explain, many—but not all—OIG investigations and reviews are likely to qualify
for disclosure under this standard.
1.
OIG’s first argument is that section 2517(1) invariably permits Department
officials to disclose Title III information to OIG agents. See OIG 2014
Memorandum at 10–12. We agree that disclosures between Department officials
and OIG agents generally comply with the statute’s first two requirements:
Numerous officers of the Department are “investigative or law enforcement
officer[s]” entitled to disclose Title III information under section 2517(1), and OIG
agents are “investigative or law enforcement officer[s]” entitled to receive such
information. But, as we explain below, a prior opinion of this Office concluded that
the statutory phrase “official duties” refers only to official duties related to law
enforcement. That conclusion applies here, and means that disclosing information
to OIG is not in itself, and without some further link to law enforcement,
“appropriate to the proper performance of [an] official dut[y]” within the meaning
of section 2517(1).
The first requirement for a disclosure under section 2517(1) is that it be made by
an “investigative or law enforcement officer,” defined as an officer of the United
States (or a State or locality) empowered to “conduct investigations of,” “make
arrests for,” or, if the officer is an attorney, “prosecute or participate in the prosecu-
tion of” offenses enumerated in section 2516. 18 U.S.C. § 2510(7). Numerous
officials in the Department qualify as “investigative or law enforcement officer[s]”
who may disclose intercepted communications under this provision. The officers
who typically possess Title III information, such as FBI agents, qualify as
investigative or law enforcement officers by virtue of their authority to “investi-
gat[e]” and “make arrests for” crimes enumerated in section 2516. Id.; see, e.g., 28
C.F.R. § 0.85 (enumerating investigatory functions of the FBI). And prosecutors,
such as Assistant United States Attorneys, qualify because they are federal officers
“authorized by law to prosecute or participate in the prosecution of” enumerated
offenses. 18 U.S.C. § 2510(7); see, e.g., 28 U.S.C. §§ 542, 547 (authorizing United
States Attorneys and their assistants to prosecute federal offenses). Officers of the
Department with leadership or supervisory responsibilities, such as the Attorney
General and Deputy Attorney General, also qualify as investigative or law
enforcement officers. They too are executive officers generally vested with
authority to investigate, make arrests for, and prosecute offenses enumerated in
section 2516. See, e.g., 28 U.S.C. §§ 509, 515; 28 C.F.R. § 0.15(a). In addition, as
we explain below, these officers participate in investigations, arrests, and
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prosecutions through their direction and supervision of those actions on an
individual or programmatic basis. See infra pp. 14–15.
Section 2517(1)’s second requirement is that the person receiving a disclosure of
Title III material also be an investigative or law enforcement officer. As OIG
observes, this Office has already concluded, in a 1990 opinion, that OIG agents
“qualify as ‘investigative officer[s]’ under section 2510(7).” Investigative Officers,
14 Op. O.L.C. at 109 (alteration in original). OIG agents, as officers in the Executive
Branch, are “officer[s] of the United States.” 18 U.S.C. § 2510(7). Further, as we
explained in our 1990 opinion, the IG Act “entrusts [OIG] with investigative, auditing,
and other responsibilities relevant to the detection and prosecution of fraud and abuse
within [Department] programs or operations.” 14 Op. O.L.C. at 109–10. When OIG
agents, exercising those responsibilities, “discover evidence that . . . Department
personnel, contractors, or grantees are engaging in [offenses enumerated in section
2516]”—such as “bribery of public officials and witnesses,” “influencing or injuring
an officer, juror, or witness,” or “obstruction of criminal investigations”—they have
the authority to investigate those crimes. Id. at 110. Indeed, the portion of the IG Act
that created OIG specifically authorizes it to “investigate allegations of criminal
wrongdoing” by Department employees. 5 U.S.C. app. § 8E(b)(2), (4); see also id.
§ 8E(d); 28 C.F.R. §§ 0.29a(b)(2), 0.29c(a). Furthermore, upon learning of “reason-
able grounds to believe there has been a violation of Federal criminal law,” inspectors
general are required to “report [such violations] expeditiously to the Attorney
General,” Investigative Officers, 14 Op. O.L.C. at 109 (quoting 5 U.S.C. app. § 4(d)),
presumably so that the Attorney General can consider the matter for prosecution.
OIG’s investigative jurisdiction thus “carries with it the power to investigate offenses
enumerated in section 2516,” and as a result, OIG agents—“including special agents,
auditors and investigators”—are “investigative officers” entitled to receive
disclosures of Title III information under section 2517(1). Id. at 110. 7
The conclusion that both Department officials who maintain Title III information
and OIG agents who seek it are “investigative or law enforcement officer[s]” under
section 2517(1), however, does not mean that those officers may share Title III
information with each other in all circumstances. Section 2517(1)’s third
requirement is that any disclosure of Title III information between qualifying
officers must be “appropriate to the proper performance of the official duties of the
officer making or receiving the disclosure.” 18 U.S.C. § 2517(1). In our 2000
Title III Intelligence Community opinion, this Office concluded that the phrase
“official duties,” despite its apparent breadth, includes only the “law enforcement
duties” of the relevant officer—that is, those “duties related to the prevention,
investigation, or prosecution of criminal conduct.” 24 Op. O.L.C. at 264 n.7, 265
(emphasis in original). We reasoned that if “official duties” were read to “permit
7
Some OIG agents may also qualify as “investigative or law enforcement officer[s]” because they
are authorized by the Attorney General, pursuant to specific provisions in the IG Act, to make warrantless
arrests and execute arrest warrants. See 5 U.S.C. app. § 6(e); 28 C.F.R. § 0.29j(d)–(e).
11
Opinions of the Office of Legal Counsel in Volume 39
disclosure . . . for purposes unrelated to law enforcement,” section 2517(1) “would
constitute only a highly elastic limitation on disclosure among law enforcement
officers”—allowing, for instance, an attorney with both civil and criminal duties to
receive wiretap information for use in civil litigation. Id. at 265. We found this result
“unlikely in light of Congress’s effort in Title III to protect privacy to the maximum
extent possible, consistent with permitting electronic surveillance for law
enforcement purposes.” Id.; see id. at 267–69 (discussing the statute’s purpose). We
also noted that Title III’s legislative history demonstrated that “Congress sought in
§ 2517 to serve ‘criminal law investigation and enforcement objectives,’” id. at 265
(quoting Am. Friends Serv. Comm. v. Webster, 720 F.2d 29, 73 (D.C. Cir. 1983)),
and observed, based on a survey of judicial decisions applying section 2517, that
“the uses of Title III information permitted by courts have all related to law
enforcement,” id. at 266. We therefore concluded that “the phrase ‘appropriate to
the proper performance of . . . official duties’” in section 2517 “authorizes
disclosure of Title III material only for purposes related to law enforcement.” Id. at
265, 267.
OIG argues that this conclusion does not apply to disclosures made to OIG in
connection with its investigations. It points out that our Title III Intelligence
Community opinion concerned disclosures of Title III information to members of
the intelligence community, who we concluded were not “investigative or law
enforcement officer[s]” within the meaning of sections 2510(7) and 2517. See OIG
2014 Memorandum at 11. As a result, our conclusion there—that Title III
information could be disclosed to members of the intelligence community in certain
circumstances—was based not on section 2517(1), but on section 2517(2), a
different exception that permits investigative or law enforcement officers to “use”
Title III information, including by disclosing it, “to the extent such use is appropriate
to the proper performance of [the] official duties” of the disclosing officer. 18
U.S.C. § 2517(2). As OIG observes, its agents are investigative or law enforcement
officers, and thus, unlike members of the intelligence community, may in principle
receive disclosures on the basis of their own “official duties” under section 2517(1),
rather than the duties of the disclosing officer. OIG argues that, as a result, the
conclusions in Title III Intelligence Community should not control the scope of the
disclosures it may receive. See OIG 2014 Memorandum at 11.
We disagree. Both sections 2517(1) and 2517(2) use the phrase “official duties,”
and as we explained in Title III Intelligence Community, “under basic canons of
statutory construction,” these “identical phrase[s] . . . must be interpreted consist-
ently” each time they appear in the same statute. 24 Op. O.L.C. at 265 (citing
Sullivan v. Stroop, 496 U.S. 478, 484–85 (1990); United Sav. Ass’n v. Timbers of
Inwood Forest Assocs., 484 U.S. 365, 371 (1988)). Indeed, the Title III Intelligence
Community opinion expressly analyzed section 2517(1) to determine how best to
interpret “official duties” for purposes of section 2517(2), and concluded, in the
discussion summarized above, that the phrase was best read in both sections as
limited to a relevant official’s law enforcement duties. See id. Nor is there any basis
12
Department of Justice Inspector General’s Access to Information
for understanding the “official duties” of a receiving officer in section 2517(1) to
have a broader scope than those of a disclosing officer in the same section, since the
same phrase applies equally to both kinds of officers. See 18 U.S.C. § 2517(1)
(requiring that disclosure assist “the official duties of the officer making or receiving
the disclosure” (emphasis added)). The interpretation of “official duties” in Title III
Intelligence Community thus extends to section 2517(1), and applies to the duties of
both receiving and disclosing officers.
For this reason, we disagree with OIG’s contention that “providing documents
to . . . OIG in the context of [any] duly authorized review would typically be
‘appropriate to the proper performance of the official duties of the official
making . . . the disclosure’” solely because of “that official’s duty to cooperate fully
with . . . OIG’s investigations and reviews.” OIG 2014 Memorandum at 11. The
duty to cooperate with OIG’s investigations is certainly an “official dut[y]” in the
broadest sense of that term. But that duty does not invariably “relate to law
enforcement.” Title III Intelligence Community, 24 Op. O.L.C. at 270. Indeed, we
explained in Title III Intelligence Community that neither an officer’s “general duty
to share [information] with another government entity,” nor the duty to respond to
a “proper request or demand by a congressional committee,” automatically
constitutes an “official dut[y]” within the meaning of section 2517(1). Id. at 264,
271. Similarly, OIG’s duty (as the potential receiving officer) to audit, investigate,
and review the Department’s activities does not automatically justify Title III
disclosure, because it too may not always relate to law enforcement. As a result, we
do not believe Department investigative or law enforcement officers can disclose
Title III information to OIG without regard to whether the disclosure would be
appropriate to the proper performance of an official duty related to law enforcement.
2.
OIG’s second argument is that even if (as we have concluded) “official duties”
are limited to duties related to law enforcement, OIG’s audits, investigations, and
reviews still qualify for disclosure, because they involve investigations of alleged
criminal wrongdoing or administrative (and potentially criminal) misconduct by
Department employees, or reviews of the Department’s criminal law enforcement
programs for purposes of “supervision and oversight.” OIG Title III Memorandum
at 2. For the reasons set forth below, we agree that many—but not all—of OIG’s
investigations and reviews are sufficiently related to law enforcement to support
disclosure based on either the official duties of the officer making the disclosure, or
the official duties of the officer receiving it.
We begin with those disclosures appropriate to the official duties of the officer
“making . . . the disclosure.” 18 U.S.C. § 2517(1). As explained above, numerous
officers within the Department qualify as “investigative or law enforcement
officer[s]” under section 2510(7). Their “official duties” related to law enforcement—
and, thus, the functions in connection with which they may disclose Title III
13
Opinions of the Office of Legal Counsel in Volume 39
information—vary according to their roles. Line-level officials, such as FBI agents
and Assistant U.S. Attorneys, perform duties related to law enforcement through on-
the-ground activities, such as investigating, making arrests for, and prosecuting
crimes. See id. § 2510(7). Higher-ranking Department officials perform duties related
to law enforcement when they direct and supervise those activities, such as by
approving search warrant and wiretap applications, managing criminal investigations,
and setting trial strategy—all functions that are integral parts of the prevention,
investigation, and prosecution of criminal offenses. See, e.g., United States v. Sells
Eng’g, Inc., 463 U.S. 418, 429 n.11 (1983) (recognizing that a prosecutor “conduct[s]
criminal matters” in his role as a “supervisor” as well as by appearing before a grand
jury); 18 U.S.C. § 2510(7) (stating that any attorney who is authorized to “participate
in the prosecution” of an enumerated offense is an investigative or law enforcement
officer). These officials may therefore disclose Title III information to OIG agents to
the extent that doing so would be appropriate to the proper performance of these
various functions, including “for the purpose of obtaining assistance” in carrying them
out. Title III Intelligence Community, 24 Op. O.L.C. at 269; see id. at 261. 8
In addition, in our view, members of Department leadership perform official
duties related to law enforcement when they supervise law enforcement activities
on a programmatic or policy basis—for example, when they issue guidelines for the
exercise of prosecutorial discretion, or set rules governing the conduct of line-level
officers. See, e.g., Memorandum for Heads of Department of Justice Components
and United States Attorneys from the Attorney General, Re: Federal Prosecution
Priorities (Aug. 12, 2013) (listing factors that prosecutors should consider in setting
prosecution priorities); FBI, Domestic Investigations and Operations Guide (Oct.
15, 2011) (establishing policies for the conduct of the FBI’s domestic
investigations). Although these programmatic and policy decisions are somewhat
removed from on-the-ground law enforcement activities, they frequently affect
these activities just as directly as supervisory decisions made on a case-by-case
basis: A Department policy prohibiting a particular law enforcement tactic or
mandating certain charging decisions, for instance, can affect the conduct of a large
number of investigations and prosecutions all at once. See Van de Kamp v.
Goldstein, 555 U.S. 335, 346 (2009) (stating that “supervisory prosecutors” are
entitled to the same degree of prosecutorial immunity when formulating “general
methods of supervision and training” as when taking “actions related to an indivi-
dual trial,” because both activities are “directly connected with the prosecutor’s
basic trial advocacy duties” (emphasis in original)). Such broad-based supervision
thus “relate[s] to law enforcement” in the ordinary sense of that phrase. Cf.
8
For example, if OIG investigated a Department employee for alleged criminal misconduct and then
referred the matter for prosecution, the prosecutor might subsequently seek to consult with OIG about its
investigation in the course of preparing or conducting the prosecution. During that consultation, the
prosecutor could disclose Title III information to OIG if doing so would help the prosecutor prepare or
conduct the prosecution.
14
Department of Justice Inspector General’s Access to Information
Disclosure of Grand Jury Material to the Intelligence Community, 21 Op.
O.L.C. 159, 171 (1997) (“Rule 6(e) Intelligence Community”) (stating that the
Attorney General’s “duty to enforce federal criminal law” within the meaning of
Fed. R. Crim. P. 6(e)(3)(A)(ii) includes the supervision of “a broad criminal law
enforcement program”).
Moreover, given the size of the Department, such programmatic and policy
supervision is a primary means by which the Attorney General and other
Department leadership officials evaluate and direct the Department’s law
enforcement activities, including its use of Title III authorities. If that supervision
did not constitute an “official dut[y]” within the meaning of section 2517(1), then
leadership officials would be unable to programmatically review the contents of
wiretaps in order to ensure that officers were exercising their Title III authorities
responsibly and lawfully, or to conduct general management and supervision of
Department law enforcement activities that made use of Title III materials. We think
it unlikely that Congress intended to handicap leadership officials in this way.
Indeed, interpreting Title III to impair programmatic or policy supervision of the
use of Title III authorities and materials would undermine Congress’s goal of
“protect[ing] privacy to the maximum extent possible, consistent with permitting
electronic surveillance for law enforcement purposes.” Title III Intelligence
Community, 24 Op. O.L.C. at 265; cf. United States v. Giordano, 469 F.2d 522, 527
(4th Cir. 1972) (noting that “[b]ecause of the delicate nature of the power to initiate
surveillance applications,” Congress took care to ensure that “the implementation”
of this authority “was reserved to” high-level leadership officials within the
Department). These considerations reinforce our conclusion that supervising law
enforcement activities on a programmatic or policy basis qualifies as an “official
dut[y]” related to law enforcement within the meaning of section 2517(1).
A Department leadership official may therefore disclose Title III materials to
OIG agents when doing so would be appropriate to the performance of that official’s
duty to supervise law enforcement activities on a programmatic or policy basis.
And, while we will not attempt to specify in the abstract all situations in which such
disclosures would be appropriate, we think that, in general, a wide range of OIG
investigations and reviews would likely assist Department leadership officials in
conducting such programmatic and policy supervision. One of the central purposes
of OIG’s reviews and investigations is to assist Department leadership in
supervising the Department: As noted above, Congress enacted the IG Act in part
to “provide a means for keeping the head of [each] [agency] . . . fully and currently
informed about problems and deficiencies relating to the administration of [the
agency’s] programs and operations and the necessity for and progress of corrective
action,” 5 U.S.C. app. § 2(3), and it assigned OIG the statutory duty of providing
reports and recommendations about such issues to Department leadership, see id.
§ 4(a)(5). Moreover, consistent with Congress’s purpose, “OIG’s reports of its
investigations and reviews have historically provided the Attorney General and
Deputy Attorney General with critical advice, information, and insights in
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Opinions of the Office of Legal Counsel in Volume 39
connection with the exercise of their supervisory responsibilities over the
Department’s programs and operations.” Letter for Michael E. Horowitz, Inspector
General, from Sally Quillian Yates, Acting Deputy Attorney General, at 2 (Apr. 23,
2015) (“Yates Letter”). We therefore believe that it would generally be “appropriate
to the proper performance of the official duties” of a member of the Department’s
leadership to disclose Title III information to OIG agents in connection with
investigations or reviews of law enforcement programs and operations that could
inform supervisory decisions made by Department leadership about such programs
and operations; that is, investigations or reviews that concern, or are designed to
develop recommendations about, the manner in which the Department prevents,
investigates, or prosecutes crimes. 9
We now turn to disclosures that would be appropriate to the proper performance of
the official duties of the officer “receiving the disclosure”—in this case, OIG agents.
As noted above, this Office has previously concluded that OIG agents qualify as
“investigative officer[s]” under section 2510(7) by virtue of their authority to
investigate allegations of criminal wrongdoing—including offenses enumerated in
section 2516—by Department employees, contractors, and grantees. Investigative
Officers, 14 Op. O.L.C. at 109 (alteration in original). Because investigations of
alleged criminal wrongdoing are plainly “official duties” related to law enforcement,
section 2517(1) authorizes Department investigative and law enforcement officers to
disclose Title III information to OIG agents as “appropriate to the proper perform-
ance” of OIG’s investigations of alleged criminal wrongdoing by Department
employees, contractors, or grantees, including administrative misconduct investiga-
tions that have a reasonable prospect of identifying criminal wrongdoing.
We further believe that OIG officials perform “official duties” related to law
enforcement within the meaning of section 2517(1) when they conduct
investigations and reviews that could help Department leadership officials make
supervisory decisions regarding the Department’s law enforcement programs,
policies, and practices. As we have already noted, Congress placed OIG within the
Department of Justice, the nation’s principal law enforcement agency, see 5 U.S.C.
app. §§ 2(A), 12(2); 28 U.S.C. §§ 501 et seq., and assigned it the “duty and
responsibility” of reviewing the Department’s programs and operations, including
its programs and operations related to law enforcement, in order to help the Attorney
9
For example, the initial request for this opinion was prompted by three recent OIG reviews: a review
of Operation Fast and Furious (an investigation of firearms trafficking, conducted by the Department’s
Bureau of Alcohol, Tobacco, Firearms, and Explosives, that employed a controversial investigative
technique); a review of the FBI’s alleged misuse of the material witness statute, 18 U.S.C. § 3144, to
detain persons suspected of criminal conduct rather than potential witnesses; and a review of the FBI’s
use of National Security and Exigent letters. All three of these investigations concerned operational
questions related to the Department’s prevention, investigation, or prosecution of criminal conduct, and
all promised to directly inform Department leadership’s supervision of these activities. Department
leadership could therefore properly disclose Title III information to OIG in connection with all three
investigations under section 2517(1).
16
Department of Justice Inspector General’s Access to Information
General and her assistants better manage those programs and operations, 5 U.S.C.
app. § 4(a). OIG agents thus have responsibilities that are closely related to
Department leadership’s duty to supervise and manage the Department’s law
enforcement functions on a programmatic and policy basis, and are therefore
sufficiently related to law enforcement to constitute “official duties” under
section 2517(1).
We recognize that, in at least two respects, OIG reviews of Department law
enforcement operations have a more attenuated relationship to the actual conduct of
those operations than policy and programmatic supervision conducted by
Department leadership; but we do not think that either of these distinctions prevents
the conduct of such reviews from constituting an “official dut[y]” under section
2517(1). First, OIG provides information and recommendations that may inform
supervisory decisions made by Department leadership, but it does not—and
cannot—actually make operational decisions concerning the Department’s law
enforcement activities. See Authority to Conduct Regulatory Investigations, 13 Op.
O.L.C. at 62 (concluding that inspectors general may not conduct “investigations
constituting an integral part of the programs involved”); 5 U.S.C. app. § 9(a)
(prohibiting the Attorney General from transferring to OIG “program operating
responsibilities”). Neither the statutory phrase “official duties,” however, nor our
prior conclusion that this phrase encompasses duties that “relate to law
enforcement,” Title III Intelligence Community, 24 Op. O.L.C. at 271, requires that
such duties involve operational law enforcement responsibilities. Indeed, such a
requirement would exclude activities that are essential to the effective conduct of
core law enforcement functions. It is difficult to imagine how most law enforcement
duties, including the duty to set relevant policy and conduct programmatic
supervision, could be carried out responsibly without the benefit of the fact-finding
and evaluative work necessary to inform them. And it would make little sense to
conclude that, for example, the Attorney General and her assistants are not engaged
in “official duties” related to law enforcement, and thus cannot obtain relevant
Title III information, when they conduct a review of a law enforcement program
that relies on such information, but that the Attorney General is engaged in a law
enforcement duty, and thus may obtain such access, when she ultimately issues
direction or guidance about that program. We therefore think that the duty to review
and investigate law enforcement programs, like the duty to supervise those
programs on a programmatic or policy level, qualifies as an “official dut[y]” related
to law enforcement under section 2517(1).
Second, in providing its recommendations and analysis to the Attorney General,
OIG is insulated to some degree from the Attorney General’s direction and
supervision. See 5 U.S.C. app. § 3(a) (providing that the Attorney General may not
“prevent or prohibit the Inspector General from initiating, carrying out, or
completing any audit or investigation”); id. § 8E(a) (qualifying this limitation with
respect to “audits or investigations . . . which require access to [certain] sensitive
information”). Moreover, unlike other Department components or officials that
17
Opinions of the Office of Legal Counsel in Volume 39
conduct fact-finding investigations or make recommendations to Department
leadership, OIG exercises authority conferred directly by Congress in the IG Act,
rather than authority shared with or delegated by the Attorney General. Compare id.
§§ 4(a), 6(a) (granting various authorities to inspectors general) with 28 U.S.C.
§ 509 (vesting in the Attorney General, with certain minor exceptions, “[a]ll
functions of other officers of the [Department] and all functions of agencies and
employees of the [Department]”) and id. § 510 (authorizing the Attorney General
to “authoriz[e] the performance by any other officer, employee, or agency of the
[Department] of any function of the Attorney General”). OIG thus falls in important
respects outside the Department’s chain of command when it conducts
investigations and develops recommendations.
But OIG’s relative independence from the Department’s leadership does not in
our view undermine the value of its reviews or advice, or mean that its “official
dut[y]” to undertake such reviews and provide such advice is unrelated to the
ultimate supervisory law enforcement decisions made by Department leadership. To
the contrary, Congress created OIG precisely because it believed that establishing
an independent and objective entity to evaluate the Department’s programs and
operations would enhance the quality of such evaluations. See H.R. Rep. No. 100-
771, at 8–9 (1988) (explaining that a lack of independence impaired the
effectiveness of the Department’s internal audit and investigation components). We
are reluctant to conclude that the relative independence that Congress determined
would improve the value of OIG’s reviews at the same time renders them
insufficiently “related to law enforcement” to support disclosure of the Title III
information OIG needs to perform such reviews effectively.
Consequently, we believe that OIG investigations and reviews that concern, or
are designed to develop recommendations about, the manner in which the
Department prevents, investigates, or prosecutes crimes “serve criminal law
investigation and enforcement objectives” and “relate to law enforcement,” as our
Title III Intelligence Community opinion requires. 24 Op. O.L.C. at 265, 271
(internal quotation marks omitted). As a result, we think that OIG agents can obtain
Title III information directly from Department investigative and law enforcement
officers, for use in such investigations and reviews, based on the OIG agents’ own
“official duties” to conduct such reviews for the benefit of Department leadership—
and not simply from Department leadership based on the leadership officials’ duty
to supervise Department operations.
Finally, although we have concluded that the “official duties” of Department
leadership officials and OIG agents for Title III purposes encompass many of their
responsibilities, it does not follow that disclosing Title III materials in connection
with an OIG audit, investigation, or review is “appropriate to the proper
performance of the official duties” of Department leadership or OIG agents in every
instance. Cf. OIG 2014 Memorandum at 11. In particular, reviews that are either
unrelated to, or have only an attenuated connection with, the conduct of the
Department’s law enforcement programs and operations do not, in our view,
18
Department of Justice Inspector General’s Access to Information
constitute (or promise to assist with) “official duties” related to law enforcement.
For example, it is unlikely that an OIG review of one of the Department’s non-law
enforcement activities, such as civil litigation, would be sufficiently related to the
Department’s law enforcement programs and operations to justify disclosure under
section 2517(1), unless that review were aimed at uncovering criminal misconduct.
Similarly, we doubt that a routine financial audit of a Department component, or a
review of a component’s record-keeping practices, would justify disclosure of Title
III information under section 2517(1) merely because that component engaged in
law enforcement activities. Although sound finances and good record-keeping may
enable a law enforcement component to conduct its functions more effectively, such
an audit or investigation would not be aimed at evaluating the conduct of law
enforcement activities themselves, or uncovering criminal conduct by Department
employees. Construing section 2517(1) to permit disclosure of Title III information
in connection with reviews that are so tangentially related to law enforcement
activities would reduce that provision to the kind of “highly elastic limitation on
disclosure” among law enforcement and investigative officers that Congress did not
intend. Title III Intelligence Community, 24 Op. O.L.C. at 265; cf. Rural Housing
Alliance v. U.S. Dep’t of Agric., 498 F.2d 73, 81 (D.C. Cir. 1974) (rejecting a
construction of the exemption for “investigatory files compiled for enforcement
purposes” in the Freedom of Information Act, under which that exemption would
encompass records from a compliance audit that might result in administrative or
criminal sanctions, because that construction would cause the exemption to
“swallow[] up the Act”).
In sum, we conclude that section 2517(1) permits Department investigative or
law enforcement officers to disclose Title III information to OIG agents in
connection with many, but not all, OIG investigations and reviews. Line-level
Department officers may disclose Title III information to OIG agents to assist the
disclosing officers in preventing, investigating, or prosecuting criminal conduct.
Any Department officer may disclose Title III information to OIG agents to assist
OIG in its investigations of criminal misconduct by Department employees,
contractors, or grantees, including administrative misconduct investigations that
have a reasonable prospect of uncovering criminal violations. And because
Department leadership officials have a duty to conduct policy and programmatic
supervision of the Department’s law enforcement activities—and because OIG has
a duty to conduct investigations and reviews that could assist Department leadership
in carrying out that supervision—any Department officer may disclose Title III
information to assist OIG in performing such investigations and reviews where they
concern, or are designed to develop recommendations about, the manner in which
the Department prevents, investigates, or prosecutes crimes. Section 2517(1) does
not, however, permit OIG agents to obtain Title III information in connection with
reviews that are either unrelated to, or have only an attenuated relationship with, the
conduct of the Department’s law enforcement activities.
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Opinions of the Office of Legal Counsel in Volume 39
B.
We now turn to OIG’s eligibility to obtain grand jury materials. Federal Rule of
Criminal Procedure 6(e) “codifies the traditional rule of grand jury secrecy,” which
is designed to ensure “the proper functioning of our grand jury system” by
encouraging prospective witnesses to “come forward” and “testify fully and
frankly,” lessening the “risk that those about to be indicted w[ill] flee, or w[ill] try
to influence individual grand jurors to vote against indictment,” and protecting the
innocent from “be[ing] held up to public ridicule.” Sells, 463 U.S. at 424–25
(quoting Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 218–19 (1979)). In
order to achieve these objectives, Rule 6(e) prohibits several specified classes of
individuals, including “attorney[s] for the government,” from disclosing “a matter
occurring before the grand jury.” Fed. R. Crim. P. 6(e)(2)(B). This rule of secrecy,
however, is not absolute: A court may authorize the disclosure of grand jury
materials in certain circumstances, id. 6(e)(3)(E), and an attorney for the
government may disclose information without court authorization pursuant to
several exceptions enumerated in subsection (3) of Rule 6(e).
OIG contends that these exceptions authorize its attorneys to receive grand jury
materials that are relevant to OIG investigations. Principally, OIG argues that
Department attorneys may disclose grand jury information to OIG under the
exception set forth in Rule 6(e)(3)(A)(i) (“exception (A)(i)”), which permits the
disclosure of grand jury information to “an attorney for the government for use in
performing that attorney’s duty.” See OIG 2015 E-mail; OIG 2014 Memorandum at
9–10; OIG Supplemental Memorandum at 19–26. In addition, although OIG does
not rely on the provision, we have considered whether OIG attorneys may obtain
grand jury information under the exception set forth in Rule 6(e)(3)(A)(ii)
(“exception (A)(ii)”), which authorizes disclosures to “any government person-
nel . . . that an attorney for the government considers necessary to assist in
performing that attorney’s duty to enforce federal criminal law.” For the reasons set
forth below, we conclude that exception (A)(i) does not authorize Department
attorneys to disclose grand jury materials to OIG attorneys, but that exception (A)(ii)
authorizes disclosures to OIG officials in a wide range of circumstances, including
in connection with OIG reviews that a member of Department leadership concludes
could assist her in supervising the Department’s criminal law enforcement programs
and operations. 10
10
OIG also argues that it is entitled to disclosure of some grand jury materials under subsection
6(e)(3)(D) (“exception (D)”), which authorizes an attorney for the government to disclose grand jury
material “involving foreign intelligence, counterintelligence . . . , or foreign intelligence information” to
a range of officials, including “federal law enforcement . . . official[s],” in order to “assist the official
receiving the information in the performance of that official’s duties.” See OIG Supplemental
Memorandum at 26–45. We believe the applicability of exception (D) to OIG presents a difficult
question. In light of our conclusion that exception (A)(ii) permits the Department leadership to provide
20
Department of Justice Inspector General’s Access to Information
1.
We begin with exception (A)(i). It provides:
Disclosure of a grand-jury matter—other than the grand jury’s
deliberations or any grand juror’s vote—may be made to . . . an
attorney for the government for use in performing that attorney’s duty.
Fed. R. Crim. P. 6(e)(3)(A)(i). A person may make a disclosure under this provision
without obtaining authorization from the court that impaneled the grand jury or
notifying the court of the disclosure. Cf. id. 6(e)(3)(B), (E).
OIG argues that exception (A)(i) authorizes Department attorneys to disclose
grand jury information to OIG attorneys for use in conducting any OIG audit,
investigation, or review. OIG observes that, in a prior memorandum, this Office
concluded that attorneys from the Department’s Office of Professional
Responsibility (“OPR”) could obtain grand jury information under exception (A)(i)
for use in investigating charges of misconduct by prosecutors or other Department
employees who had assisted in grand jury investigations. See OIG Supplemental
Memorandum at 20–22 (citing Memorandum for Michael Shaheen, Jr., Counsel,
OPR, from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal
Counsel, Re: Disclosure of Grand Jury Material to the Office of Professional
Responsibility (Jan. 6, 1984) (“OPR Memorandum”)). OIG contends that because
its attorneys, like OPR attorneys, are authorized to assist the Attorney General in
supervising the Department, they qualify as “attorney[s] for the government” who
may receive disclosures under exception (A)(i). See OIG 2015 E-mail. OIG further
argues that its attorneys perform a “duty” closely analogous to OPR’s when they
investigate allegations of misconduct by the Department’s law enforcement officers.
OIG claims that as a result, exception (A)(i) likewise permits its attorneys to receive
grand jury information in connection with its investigations. See OIG Supplemental
Memorandum at 22–24.
The starting point for OIG’s argument is United States v. Sells Engineering. In
that case, the Supreme Court considered whether exception (A)(i) authorizes the
Department’s Civil Division to obtain grand jury materials for use in preparing and
litigating civil lawsuits. See 463 U.S. at 420. The Court concluded first that Civil
Division attorneys, like “virtually every attorney in the Department of Justice,” were
“within the class of ‘attorneys for the government’ to whom (A)(i) allows disclosure
OIG with access to grand jury material in a wide range of circumstances, see infra Part II.B.2, we decline
to address the scope of exception (D) here. Rule 6(e)(3) also includes exceptions to Rule 6(e)’s secrecy
requirements for (1) certain disclosures relating to banking matters and civil forfeiture authorized by 18
U.S.C. § 3322, see Fed. R. Crim. P. 6(e)(3)(A)(iii); (2) disclosures to another federal grand jury, see id.
6(e)(3)(C)); and (3) disclosures authorized by a court under certain conditions, see id. 6(e)(3)(E). We
likewise do not address the application of those exceptions in this opinion.
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without a court order.” Id. at 426, 427–28. The Federal Rules of Criminal Procedure,
the Court explained, define “attorneys for the government” to include “‘authorized
assistants of the Attorney General’”; and the Attorney General may direct almost
“any attorney employed by the Department”—including Civil Division attorneys—
“to conduct ‘any kind of legal proceeding, civil or criminal, including grand jury
proceedings.’” Id. at 428 (quoting Fed. R. Crim. P. 54(c) (1983); 28 U.S.C.
§ 515(a)). 11 It was therefore “immaterial,” in the Court’s view, that “certain
attorneys happen[ed] to be assigned to a unit called the Civil Division, or that their
usual duties involve[d] only civil cases.” Id. Because such attorneys,
notwithstanding such an assignment, could be detailed or assigned to conduct
“criminal grand jury investigation[s],” they counted as “attorneys for the
government” under the Rules. Id.Nonetheless, the Court held that the use of grand jury information for civil
purposes—even by an “attorney for the government” exercising her official
duties—did not constitute “use in the performance of such attorney’s duty” within
the meaning of exception (A)(i). 12 In the Court’s view, Congress did not intend
exception (A)(i) to mean “that any Justice Department attorney is free to rummage
through the records of any grand jury in the country, simply by right of office,” id.,or to authorize access to grand jury material to serve “the general and multifarious
purposes of the Department of Justice,” id. at 429. The Court based its conclusion
primarily on the purpose behind exception (A)(i). It explained that Rule 6(e) permits
government attorneys to obtain otherwise secret grand jury materials only “because
both the grand jury’s functions and their own prosecutorial duties require it.” Id.(emphasis in original); see id. at 428–29 (quoting Fed. R. Crim. P. 6(e) advisory
committee’s note (1944)). A prosecutor working on a criminal matter “needs to
know what transpires before the grand jury,” in order to “bring[] matters to the
attention of the grand jury,” “advise[] the lay jury on the applicable law,” and
“determine whether it is in the interests of justice to proceed with prosecution.” Id.
at 430. A civil attorney’s “need for access,” in contrast, “is ordinarily nothing more
than a matter of saving [the] time and expense” of civil discovery. Id. at 431. As a
result, “disclosure for civil use [is] unjustified by the considerations supporting
prosecutorial access.” Id. Moreover, the Court continued, granting attorneys the
right to obtain grand jury materials for use in civil litigation would “threaten[] to do
affirmative mischief.” Id. Such a broad right of access might discourage witnesses
from testifying before the grand jury “for fear that [they] will get [themselves] into
trouble in some other forum,” “tempt[]” prosecutors to “manipulate the grand jury’s
powerful investigative tools . . . to elicit evidence for use in a civil case,” and
11
Rule 54(c) was transferred to Rule 1(b)(1) when the Rules were amended in 2002.
12
The language of this provision has been modified slightly since Sells. Compare Fed. R. Crim. P.
6(e)(3)(A)(i) (1979) (“an attorney for the government for use in the performance of such attorney’s duty”)
with Fed. R. Crim. P. 6(e)(3)(A)(i) (2015) (“an attorney for the government for use in performing that
attorney’s duty”). We believe this change is immaterial for purposes of this opinion.
22
Department of Justice Inspector General’s Access to Information
“subvert the limitations applied outside the grand jury context on the Government’s
powers of discovery and investigation.” Id. at 432–33.
Significantly, the Court made clear that it did “not mean to suggest that (A)(i)
access to grand jury materials is limited to those prosecutors who actually did appear
before the grand jury.” Id. at 429 n.11 (emphasis in original). Rather, the Court
noted that “anyone working on a given prosecution would clearly be eligible under
[the Federal Rules] to enter the grand jury room,” even if such a person did not do
so. Id. (emphasis in original). Accordingly, the Court found that the intent of the
rule was to authorize “every attorney (including a supervisor) who is working on a
prosecution [to] have access to grand jury materials, at least while he is conducting
criminal matters,” in order “to facilitate effective working of the prosecution team.”
Id. (emphasis omitted).
In the wake of the Supreme Court’s decision in Sells, OPR asked this Office
whether its attorneys could continue to obtain access to grand jury materials under
exception (A)(i) when “investigating charges that prosecutors or Department
employees assisting grand jury investigations ha[d] engaged in misconduct.” OPR
Memorandum at 1. In an unpublished memorandum that forms the basis for OIG’s
argument here, we advised that OPR attorneys could “probably” do so. Id. at 2. We
acknowledged that “the broad language in Sells, on its face, would appear to prohibit
automatic disclosure” to OPR attorneys, because they “would usually be using the
materials for civil, not criminal, purposes”—i.e., in connection with administrative
misconduct proceedings—and because “they are not the ‘attorneys who conduct the
criminal matters to which the materials pertain.’” Id. at 4 (quoting Sells, 463 U.S. at
427). Nonetheless, we observed that two “strong arguments [could] be made” in
support of OPR’s eligibility for disclosure under exception (A)(i). Id.First, we noted that permitting the automatic disclosure of grand jury materials
to OPR attorneys would not “raise[] the same type of policy concerns that were
relied upon by the Sells Court.” Id. at 6. The Civil Division attorneys in Sells, we
explained, had sought grand jury materials “for possible use in civil actions against
the targets of the grand jury inquiry,” while OPR attorneys sought those materials
“to oversee the conduct of the government attorneys and investigators assisting the
grand jury.” Id. at 4–5. Thus, unlike in Sells, “only the conduct of government
prosecutors,” and not the conduct of the targets of the grand jury inquiry, “would be
subject to scrutiny.” Id. at 5. As a result, disclosing grand jury materials to OPR
attorneys would neither “hinder[]” the “willingness of witnesses to testify” nor
“create an incentive for criminal attorneys to abuse the grand jury process in order
to pursue civil discovery.” Id.
Second, we believed that disclosures to OPR attorneys would “fall generally
within the supervisor exception” articulated in Sells. Id. at 7. We noted that the Sells
Court had recognized that grand jury materials could be “disclosed to some persons
who may not technically be considered ‘prosecutors,’ such as Department
‘supervisors’ and members of the ‘prosecution team,’ but who nevertheless are
indispensable to an effective criminal law enforcement effort.” Id. at 6 (citation
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omitted) (quoting Sells, 463 U.S. at 429 n.11). We thought this exception “would
clearly cover certain exchanges [of grand jury information]” that were “analogous”
to disclosures to OPR. Id. In particular, we thought there was “no question” that
prosecutors could “ask ethics counselors to accompany them into the grand jury
room to give direct counsel when problems [arose],” or that prosecutors could
“disclose grand jury materials to their superiors,” as well as to “ethics attorneys”
advising those supervisors, in order “to seek their instructions on ethical
responsibilities.” Id. at 7. We therefore thought it probable, although “not free from
doubt,” that, by the same logic, Department attorneys could obtain grand jury
materials “to evaluate in the course of a separate administrative investigation the
propriety of prior conduct.” Id. We reasoned that, “[t]o perform properly their
oversight role, supervisors not only must be able to review grand jury materials for
purposes of instructing subordinates on future activities, but also must be able to
evaluate that conduct once a course of action has been set.” Id. “A supervisor’s
access to grand jury materials,” we explained, “should not be terminated artificially
once his subordinates have acted, but should properly include post mortem review
of his staff’s activities.” Id. at 7–8. We further noted that OPR attorneys are, by
regulation, “delegee[s] of the Attorney General for purposes of overseeing and
advising with respect to the ethical conduct of department attorneys.” Id. at 8 (citing
28 C.F.R. § 0.39a (1983)). Accordingly, we concluded that it was appropriate for
OPR attorneys to review grand jury materials in order to “make recommendations
to the Attorney General or other supervisors regarding conduct in particular cases.”
Id. 13
OIG argues that it is eligible to receive grand jury materials under exception
(A)(i) for much the same reason as OPR attorneys. OIG asserts that its attorneys
qualify as “attorney[s] for the government” because they are charged with
“assisting the [Attorney General] in [her] capacity of overseeing the operations of
the Department.” OIG 2015 E-mail. And OIG argues that its investigations and
reviews are comparable to the work performed by OPR attorneys, and thus qualify
as “dut[ies]” for which OIG may receive grand jury information, because OIG,
like OPR, performs those investigations to “oversee[] and advis[e] with respect to
the ethical conduct” of Department personnel, and to assist members of the
Department’s leadership in “evaluat[ing] . . . the propriety of prior conduct” and
improving the Department’s law enforcement policies and programs. OPR
Memorandum at 7–8; see OIG Supplemental Memorandum at 22–24.
We think that OIG is correct that its duties are similar to OPR’s in important
respects; indeed, for the reasons described in Part II.B.2 below, we believe that OIG
13
Recognizing, however, that the broad language in Sells could be read to prohibit automatic
disclosure of grand jury materials to OPR attorneys, we suggested “as a prudential matter” that OPR seek
a court order sanctioning disclosure under exception (A)(i) in the first few cases in which it reviewed
grand jury materials so that it might “obtain some clear guidance from the courts on whether the
automatic exemption may be employed.” OPR Memorandum at 9.
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Department of Justice Inspector General’s Access to Information
personnel may obtain grand jury information under exception (A)(ii) in part because
of their responsibility to assist Department leadership in supervising the
Department’s law enforcement functions. See infra pp. 33–34. But we disagree that
OIG attorneys qualify as “attorney[s] for the government” within the meaning of
the Federal Rules. As we explain below—and as both Sells and numerous courts of
appeals have confirmed—an “attorney for the government” under the Rules must
not merely assist the Attorney General, but must (at a minimum) be capable of
conducting criminal proceedings on behalf of the government. Because the IG Act
prohibits OIG personnel from engaging in such activities, OIG attorneys cannot
qualify for disclosure under exception (A)(i).
The Rules define an “attorney for the government” as:
(A) the Attorney General or an authorized assistant;
(B) a United States attorney or an authorized assistant;
(C) when applicable to cases arising under Guam law, the Guam
Attorney General or other person whom Guam law authorizes to act
in the matter; and
(D) any other attorney authorized by law to conduct proceedings
under these rules as a prosecutor.
Fed. R. Crim. P. 1(b)(1). Most of the categories listed in this definition clearly
consist of attorneys who are authorized to conduct criminal proceedings on behalf
of the government. The Attorney General is authorized to “conduct any kind of legal
proceeding, civil or criminal, including grand jury proceedings,” 28 U.S.C.
§ 515(a); United States Attorneys are charged with “prosecut[ing] . . . all offenses
against the United States,” id. § 547(1); attorneys for the government acting in
Guam criminal cases must be “authorize[d] to act in th[os]e matter[s]” under Guam
law; and “other attorney[s]” must be “authorized by law to conduct proceedings
under [the Rules] as a prosecutor.” Only the “authorized assistant[s]” to the Attorney
General and United States Attorneys described in subparagraphs (A) and (B) are not
in plain terms limited to attorneys who are authorized to represent the government
in criminal proceedings. In isolation, the phrase “authorized assistant” might be read
to encompass persons who “assist[]” the Attorney General or a United States
Attorney in ways other than by conducting prosecutions (such as by conducting the
kinds of investigations of misconduct or law enforcement programs undertaken by
OIG). Read in context, however, we think that the term “authorized assistant” in
subparagraphs (A) and (B) refers, like the other categories in Rule 1(b)(1), to
prosecutors or other attorneys with authority to conduct criminal proceedings on the
government’s behalf. This is so for at least three reasons.
First, the text of Rule 1(b)(1) supports this reading. The word “authorized” in
“authorized assistant” must be read in light of the meaning it has in the other parts
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Opinions of the Office of Legal Counsel in Volume 39
of the same provision. As noted, subsection (C) refers to persons “whom Guam law
authorizes to act in [a] [criminal] matter,” and subsection (D) refers to other
attorneys “authorized by law to conduct proceedings under these rules as a
prosecutor” (emphases added). Because “similar language contained within the
same section of a statute must be accorded a consistent meaning,” Nat’l Credit
Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 501 (1998), it is
reasonable to presume that Congress used the term “authorized” in a similar sense
in subsections (A) and (B), to refer to official authorization to conduct proceedings
under the Rules as a prosecutor, or otherwise to “act” in a criminal proceeding in an
official capacity. As noted above, moreover, the other categories of government
attorneys listed in Rule 1(b)(1) are clearly authorized to conduct criminal
proceedings. In that context, the term “authorized assistant” is best read to refer as
well to attorneys who are authorized to conduct criminal proceedings. See United
States v. Williams, 553 U.S. 285, 294 (2008) (noting that “a word is given more
precise content by the neighboring words with which it is associated”). Additionally,
the catchall category set forth in subsection (D) refers to “any other attorney
authorized by law to conduct proceedings under these rules as a prosecutor”
(emphasis added). That formulation reinforces our conclusion that the preceding
categories in the Rule consist of attorneys authorized by law to conduct proceedings
under the rules as a prosecutor. See Paroline v. United States, 134 S. Ct. 1710, 1721
(2014) (“Here, [18 U.S.C.] § 2259(b)(3)(F) defines a broad, final category of ‘other
losses suffered . . . as a proximate result of the offense.’ That category is most
naturally understood as a summary of the type of losses covered—i.e., losses
suffered as a proximate result of the offense.” (ellipsis in original)).
Second, consistent with this reading, Sells and many lower court decisions have
held or assumed that an “authorized assistant” to the Attorney General must be an
attorney who is, or at least may be, authorized to conduct criminal proceedings on
the government’s behalf. As noted, Sells concluded that Civil Division attorneys
qualify as “authorized assistant[s] of the Attorney General” because the Attorney
General may assign them to “conduct a criminal grand jury investigation” or other
criminal matters. Sells, 463 U.S. at 428 (citing 28 U.S.C. §§ 515(a), 518(b)). The
Attorney General’s authority to reassign attorneys in this way would be pertinent
only if the Court thought that an “authorized assistant” had to be capable of
conducting criminal matters on the government’s behalf. Courts of appeals have
interpreted the phrase even more strictly. The Sixth Circuit, for instance, has held
that “an ‘authorized assistant of the Attorney General’ is one whose superiors have
assigned him or her to work in some official capacity on the criminal proceeding.”
United States v. Forman, 71 F.3d 1214, 1220 (6th Cir. 1995) (emphasis omitted).
Other courts of appeals have reached similar conclusions. See Sells, 463 U.S. at 429
n.12 (citing courts of appeals that had “held or assumed that” even a Criminal
Division attorney could qualify as an “‘authorized assistant of the Attorney
General’” only if she had actually been “authorized to conduct grand jury
proceedings” (emphasis in original)); United States v. Fort, 472 F.3d 1106, 1111
26
Department of Justice Inspector General’s Access to Information
(9th Cir. 2007) (“Rule 1(b)(1) defines restrictively the term ‘attorney for the
government’ to mean (as relevant here) a federal prosecutor.”); United States v.
Balistrieri, 779 F.2d 1191, 1207 (7th Cir. 1985) (holding that attorneys employed
by the Department’s Criminal Division were “authorized assistants of the Attorney
General” and thus “attorneys for the government” because they “were assigned to
assist the United States Attorney for the Eastern District of Wisconsin in invest-
igating and prosecuting” a criminal case). There is some apparent tension between
the conclusion in Sells that any attorney who could be authorized to conduct
criminal proceedings qualifies as an “attorney for the government,” see 463 U.S.
at 428, and the conclusions of other courts that an actual authorization is required,
see, e.g., Forman, 71 F.3d at 1220. But we need not attempt to resolve this tension
here, because at a minimum, all courts agree that an attorney who is incapable of
being authorized to conduct criminal proceedings on the government’s behalf is not
an “authorized assistant” for purposes of the Federal Rules.
Third, numerous provisions of the Federal Rules make clear that an “attorney for
the government,” including an authorized assistant to the Attorney General, refers
to an attorney capable of representing the government in criminal proceedings—a
meaning that makes sense given the Rules’ purpose of establishing the “procedure”
governing “all criminal proceedings in the United States [courts].” Fed. R. Crim. P.
1(a)(1); see Robinson v. Shell Oil Co., 519 U.S. 337, 345 (1997) (resolving the
meaning of a statutory term by considering “[t]he broader context provided by other
sections of the statute”). More than 50 provisions of the Rules use the term “attorney
for the government,” and all are consistent with this understanding. For example,
Rule 11(c) provides that “[a]n attorney for the government and the defendant’s
attorney, or the defendant when proceeding pro se, may discuss and reach a plea
agreement.” Fed. R. Crim. P. 11(c)(1). Rule 12.1 provides that “[a]n attorney for the
government may request in writing that the defendant notify an attorney for the
government of any intended alibi defense,” id. 12.1(a)(1), and that, following such
a request, “the defendant must serve written notice on an attorney for the
government of any intended alibi defense,” id. 12.1(a)(2). Rule 14 provides that
“[b]efore ruling on a defendant’s motion to sever [his trial from a codefendant’s],
the court may order an attorney for the government to deliver to the court for in
camera inspection any defendant’s statement that the government intends to use as
evidence.” Id. 14(b). And Rule 26.2 provides that “[a]fter a witness other than the
defendant has testified on direct examination, the court, on motion of a party who
did not call the witness, must order an attorney for the government or the defendant
and the defendant’s attorney to produce . . . any statement of the witness that is in
their possession and that relates to the subject matter of the witness’s testimony.”
Id. 26.2(a). A person who lacks authority to appear in a criminal matter on behalf of
the government could not perform these or many other functions assigned to
“attorney[s] for the government” by the Federal Rules.
OIG attorneys cannot qualify as “authorized assistant[s],” or any other type of
“attorney for the government,” under this standard. As an initial matter, nothing in the
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Opinions of the Office of Legal Counsel in Volume 39
IG Act authorizes OIG attorneys to conduct criminal proceedings. See 5 U.S.C. app.
§§ 4(a), 6(a), 8E(b) (listing OIG’s duties and authorities). Ordinarily, 28 U.S.C. § 515and related statutes permit the Attorney General to delegate to any “officer of the
Department of Justice,” or to any “attorney specially appointed by the Attorney
General,” the authority to conduct criminal proceedings on the government’s behalf.
28 U.S.C. § 515(a); see also id. §§ 518(b), 543(a). But section 9(a) of the IG Act
provides that the Attorney General may transfer “functions, powers, [and] duties” to
OIG only if those functions are “properly related to the functions of [OIG],”
transferring them would “further the purposes of th[e] Act,” and the functions do not
constitute “program operating responsibilities.” 5 U.S.C. app. § 9(a), (a)(2); see also
Authority to Conduct Regulatory Investigations, 13 Op. O.L.C. at 61 (stating that the
IG Act prohibits inspectors general from “conduct[ing] investigations constituting an
integral part of the programs involved” (internal quotation marks omitted)). The duty
to conduct grand jury or other criminal proceedings on behalf of the United States is
unrelated to OIG’s statutory functions of investigation, auditing, and oversight. See
5 U.S.C. app. § 4(a). Transferring criminal litigating responsibilities to OIG would
undermine its independence—preservation of which is one of the principal concerns
of the Act—by making its attorneys “responsible official[s]” who “set and implement
[Department] policy” at the same time as they oversee and critique it. Authority to
Conduct Regulatory Investigations, 13 Op. O.L.C. at 61. And the conduct of criminal
litigation is one of the Department’s central program operating responsibilities. See
28 U.S.C. §§ 515(a), 516, 519. The plain language of section 9(a) therefore bars the
Attorney General from assigning this responsibility to OIG.
The IG Act’s legislative history further supports this reading of section 9(a).
When Congress initially enacted the IG Act in 1978, the House Report explained
that “Inspector[s] General would not conduct prosecutions or decide whether
prosecutions should or should not be conducted.” H.R. Rep. No. 95-584, at 13
(1977). And when Congress extended the IG Act to the Department in 1988, the
House Report responded to concerns that OIG’s creation would interfere with the
Department’s law enforcement functions: “[P]rosecution of suspected violations of
Federal law and the conduct of litigation are parts of the basic mission or program
functions of the Department of Justice,” the Report explained, “[and] the [IG] [A]ct
does not authorize inspectors general to engage in program functions.” H.R. Rep.
No. 100-771, at 9. “[I]n fact,” the Report continued, “[section 9(a)] specifically
prohibits the assignment of such responsibilities to an inspector general.” Id. at 9 &
n.48. The Conference Report accompanying the 1988 amendments likewise
indicated that OIG personnel would not be permitted to engage in prosecutorial
functions, noting that “[t]he conferees do not intend that the IG should render
judgments on the exercise of prosecutorial or other litigative discretion in a
particular case or controversy.” H.R. Rep. No. 100-1020, at 25 (Conf. Rep.).
Because section 9(a) prohibits the Attorney General from transferring to OIG the
authority to conduct criminal proceedings, the Attorney General may not assign
OIG that authority pursuant to 28 U.S.C. § 515 or similar general delegation
28
Department of Justice Inspector General’s Access to Information
statutes. As we have noted, different statutes that regulate the same subject matter
must be read in pari materia and given full effect to the extent possible. See Morton,
417 U.S. at 551. If a general delegation statute such as 28 U.S.C. § 515 were
construed to permit assignments to OIG that section 9(a) prohibits, then section 9(a)
would be effectively inapplicable to the Department and many agencies subject to
the IG Act, because numerous statutes grant the heads of agencies equally broad or
broader authority to delegate their statutory functions to subordinate officers. See,
e.g., 28 U.S.C. § 510 (providing that the Attorney General may authorize “any other
officer” of the Department to perform “any function of the Attorney General”
(emphases added)); 6 U.S.C. § 112(b)(1) (granting similar authority to the Secretary
of Homeland Security); 20 U.S.C. § 3472 (Secretary of Education); 31 U.S.C.
§ 321(b)(2) (Secretary of the Treasury). It is in our view implausible that Congress
intended section 9(a) to have such a limited effect, particularly in light of the
legislative history expressing Congress’s belief that this provision would in fact
prohibit OIG from engaging in prosecution or litigation. See H.R. Rep. No. 100-
1020, at 25 (Conf. Rep.); H.R. Rep. No. 100-771, at 9; H.R. Rep. No. 95-584, at 13.
We therefore think that, given the absence of any indication of congressional intent
to the contrary, section 9(a)—a specific provision limiting the transfer of functions
to inspectors general—is best construed as an exception to general delegation
provisions, like 28 U.S.C. § 515(a), that broadly authorize the assignment of the
Department’s functions to any subordinate officer or attorney. See infra p. 49
(explaining that if “a general permission or prohibition is contradicted by a specific
prohibition or permission,” then “the specific provision is construed as an exception
to the general one,” absent strong “textual indications that point in the other
direction” (quoting RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct.
2065, 2071–72 (2012))).
As a result, while the analysis in our OPR memorandum might inform the
question whether OIG investigations and reviews qualify as “dut[ies]” justifying
disclosure of grand jury materials under exception (A)(i), OIG attorneys are unlike
OPR attorneys in at least one critical respect. Like “virtually every attorney in the
Department of Justice,” OPR attorneys may in principle be delegated the Attorney
General’s authority to conduct criminal proceedings for the Department. Sells, 463
U.S. at 426; see id. at 428; OPR Memorandum at 8 (noting that OPR attorneys are
“delegee[s] of the Attorney General”). But OIG attorneys, as we have discussed, are
barred from being assigned this authority under the IG Act. Consequently, although
OIG personnel may seek to use grand jury materials in a manner that parallels the
use discussed in our OPR Memorandum, they do not fall within the category of
persons—attorneys for the government—who may obtain disclosure under
exception (A)(i). 14
14
OIG contends that multiple district court decisions have determined that OIG attorneys qualify for
disclosure under exception (A)(i), and questions whether this Office may render a legal opinion
29
Opinions of the Office of Legal Counsel in Volume 39
2.
Because exception (A)(i) does not authorize the disclosure of grand jury
materials to OIG, we have also considered whether a separate exception would
authorize that disclosure. Exception (A)(ii) provides:
Disclosure of a grand-jury matter—other than the grand jury’s
deliberations or any grand juror’s vote—may be made to . . . any
government personnel—including those of a state, state subdivision,
Indian tribe, or foreign government—that an attorney for the
government considers necessary to assist in performing that attorney’s
duty to enforce federal criminal law.
Fed. R. Crim. P. 6(e)(3)(A)(ii). Like disclosure under exception (A)(i), disclosure
under this exception may be made without prior judicial approval. However, unlike
disagreeing with those decisions. See OIG 2014 Memorandum at 15 & att. The decisions OIG cites are
one-page memorandum orders, issued by a single district judge, that authorized disclosure to OIG
attorneys under exception (A)(i). The relevant parts of the orders state, in their entirety, that because a
particular OIG investigation of “alleged misconduct before the grand jury” was “supervisory in nature
with respect to ethical conduct of Department employees,” “disclosure of grand jury materials to the OIG
constitutes disclosure to ‘an attorney for the government for use in the performance of such attorney’s
duty’” under exception (A)(i). In re Matters Occurring Before the Grand Jury Impaneled July 16, 1996,
Misc. No. 39 (W.D. Okla. June 4, 1998) (Russell, C.J.) (order) (quoting Fed. R. Crim. P. 6(e)(3)(A)(i));
id. (Dec. 8, 1998) (same); see id. (Nov. 15, 1999) (“Because in taking such actions, these Department
personnel would be engaged in a supervisory function, disclosure of grand jury materials to them
constitutes disclosure to ‘an attorney for the government for use in the performance of such attorney’s
duty.’”). Neither these orders, nor the underlying Department filings that sought disclosure, discussed or
analyzed the meaning of the terms “attorney for the government” or “authorized assistant.” As the
Supreme Court has explained, a “‘decision of a federal district court judge is not binding precedent in
either a different judicial district, the same judicial district, or even upon the same judge in a different
case.’” Camreta v. Greene, 131 S. Ct. 2020, 2033 n.7 (2011) (quoting 18 J. Moore et al., Moore’s Federal
Practice § 134.02[1][d] (3d ed. 2011)). Nor is a district court decision binding on the Executive Branch
in activities unrelated to the case in which the court’s decision was rendered. See In re Exec. Office of
the President, 215 F.3d 20, 24–25 (D.C. Cir. 2000) (per curiam). Consistent with this rule, the Office has
previously disagreed with district court decisions after independently analyzing the questions presented
and reaching contrary conclusions, including where the court espoused a view previously advanced by
the Department. See, e.g., Whether Proposals by Illinois and New York to Use the Internet and Out-of-
State Transaction Processors to Sell Lottery Tickets to In-State Adults Violate the Wire Act, 35 Op.
O.L.C. __, at *3–4 (Sept. 20, 2011) (available at http://www.justice.gov/olc/opinions.htm) (disagreeing
with the decisions of courts that had adopted a position previously advanced by the Criminal Division);
Applicability of the Antideficiency Act to a Violation of a Condition or Internal Cap Within an
Appropriation, 25 Op. O.L.C. 33, 52 (2001) (disagreeing with the “unexplained decision” of a district
court that appeared to interpret the Antideficiency Act in a manner “inconsistent with the Antideficiency
Act’s legislative history and evolution and with the rest of the (limited) caselaw”); Authority of the
President to Remove the Staff Director of the Civil Rights Commission and Appoint an Acting Staff
Director, 25 Op. O.L.C. 103, 105 (2001) (disagreeing with a district court decision subsequently vacated
as moot). For the reasons offered above, we respectfully disagree with the district court’s conclusion that
OIG attorneys may qualify for disclosure under exception (A)(i) solely because they perform supervisory
functions.
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in the case of disclosures under exception (A)(i), the Rules provide that an attorney
for the government must “promptly provide the court that impaneled the grand jury
with the names of all persons to whom a disclosure has been made” under exception
(A)(ii), and “certify that the attorney has advised those persons of their obligation
of secrecy under this rule.” Id. 6(e)(3)(B). And a person to whom information is
disclosed under this exception “may use that information only to assist an attorney
for the government in performing that attorney’s duty to enforce federal criminal
law.” Id.OIG employees clearly qualify as “government personnel” who may receive
disclosures under this exception. The language of that phrase is broad—particularly
when considered in light of the Rule’s explanation that it extends to personnel of a
“state, state subdivision, Indian tribe, or foreign government”—and comfortably
encompasses OIG employees. Id. 6(e)(3)(A)(ii). In addition, we have previously
observed that the use of the permissive phrase “considers necessary” in exception
(A)(ii) suggests that “Congress intended federal prosecutors to have broad leeway
in deciding what government personnel should have access to grand jury materials
for purposes of facilitating enforcement functions.” Disclosure of Grand Jury
Matters to the President and Other Officials, 17 Op. O.L.C. 59, 62 (1993)
(“Disclosure to the President”). 15 Consistent with this broad understanding of the
term, we have advised that exception (A)(ii) permits disclosures to law enforcement
officers, members of the intelligence community, and senior Administration
officials, among others. See Rule 6(e) Intelligence Community, 21 Op. O.L.C. at
161; Disclosure to the President, 17 Op. O.L.C. at 61. See generally Sells, 463 U.S.
at 436 (explaining that exception (A)(ii) was prompted by the need to make
disclosures to individuals such as “accountants” and “handwriting experts”); Fed R.
Crim. P. 6 advisory committee’s note (1977 Amendments) (“The phrase ‘other
government personnel’ includes, but is not limited to, employees of administrative
agencies and government departments.”). OIG employees are likewise “government
personnel” who may receive disclosures under exception (A)(ii).
In addition, a wide variety of Department attorneys qualify as “attorney[s] for
the government” who may authorize disclosures under this exception. As we have
discussed, that term includes the Attorney General, United States Attorneys, their
“authorized assistant[s],” and “any other attorney authorized by law to conduct
proceedings under these rules as a prosecutor”—and thus extends to any Department
attorney who is (and perhaps any Department attorney who may be) authorized to
15
Consistent with our prior opinions, we presume that Congress intended “necessary” in this context
to mean useful or conducive, rather than strictly required. See Disclosure to the President, 17 Op. O.L.C.
at 61 (stating that exception (A)(ii) permits disclosure “for purposes of obtaining . . . assistance”); Rule
6(e) Intelligence Community, 21 Op. O.L.C. at 161 (similar); cf., e.g., McCulloch v. Maryland, 17 U.S.
(4 Wheat.) 316, 413, 415 (1819) (construing the word “necessary” in the Necessary and Proper Clause
to mean “convenient,” “useful,” or “conducive”); Cellular Telecomms. & Internet Ass’n v. FCC, 330
F.3d 502, 504 (D.C. Cir. 2003) (deferring to agency’s interpretation of “necessary” in telecommuni-
cations statute as referring to “a strong connection” between means and ends).
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conduct criminal proceedings on behalf of the federal government. Fed. R. Crim. P.
1(b)(1); see supra pp. 25–27.
The scope of permissible disclosure to OIG officials under exception (A)(ii) thus
turns on the circumstances in which a Department attorney—including a member
of Department leadership—may reasonably “consider[]” an OIG official “necessary
to assist in performing that attorney’s duty to enforce federal criminal law.” Fed. R.
Crim. P. 6(e)(3)(A)(ii). This Office has previously noted several relatively
straightforward ways in which this language limits the permissible scope of
disclosures. To begin with, consistent with the plain language of this provision, a
Department attorney may make a disclosure only for the purpose of obtaining
assistance in performing her duty to enforce “federal criminal law.” Id. (emphasis
added). Thus, an attorney may not authorize disclosures under exception (A)(ii) to
assist in the performance of her civil or administrative duties, or to senior White
House policymakers for purposes of “general policymaking.” Disclosure to the
President, 17 Op. O.L.C. at 61–62, 64; see Sells, 463 U.S. at 427. We have also
observed that, because disclosures under exception (A)(ii) may be made only to a
person that a Department attorney “considers necessary to assist in performing that
attorney’s duty,” Fed. R. Crim. P. 6(e)(3)(A)(ii) (emphasis added), an attorney may
not make disclosures to assist in the performance of duties she herself does not hold.
See Rule 6(e) Intelligence Community, 21 Op. O.L.C. at 171. In addition, we have
advised that the same phrase requires that any disclosure be made “in accordance
with an actual determination made by an attorney.” Memorandum for Philip B.
Heymann, Assistant Attorney General, Criminal Division, and William P. Tyson,
Acting Director, Executive Office for United States Attorneys, from John M.
Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Computerized
Preservation and Use of Grand Jury Material at 4 (May 2, 1980). Hence, while an
attorney has “broad leeway” in judging what disclosures are proper, Disclosure to
the President, 17 Op. O.L.C. at 62 (citing S. Rep. No. 95-354, at 8 (1977)), she must
always exercise her independent judgment before authorizing the disclosure of
grand jury information to a particular recipient. Thus, for example, we concluded
that an attorney could not place grand jury materials on a computerized database
that law enforcement officers could use for purposes of which the attorney was
unaware. See Memorandum for Roger B. Clegg, Acting Assistant Attorney General,
Office of Legal Policy, and John Mintz, Assistant Director and Legal Counsel, FBI,
from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal
Counsel, Re: Authority of FBI Agents to Exchange Grand Jury Material Pursuant
to Rule 6(e)(3)(A)(ii) of the Federal Rules of Criminal Procedure (Feb. 14, 1984)
(“Shanks Memorandum”).
Within these limitations, we believe exception (A)(ii) permits Department
attorneys to authorize the disclosure of grand jury information to OIG both to assist
with individual law enforcement actions and, where the disclosures are authorized
by members of the Department leadership, to assist in the direction and supervision
of the Department’s law enforcement programs and operations. First, because an
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attorney’s “duty to enforce federal criminal law” plainly includes his duty to
prosecute criminal offenses, exception (A)(ii) permits Department attorneys to
authorize disclosure of grand jury materials to OIG in connection with OIG
investigations and reviews those attorneys believe could assist them with ongoing
or potential prosecutions. Exception (A)(ii) was drafted specifically in order to
enable prosecutors to make disclosures to investigators who could develop the basis
for and aid in prosecutions. See Sells, 463 U.S. at 436 (stating that exception (A)(ii)
was enacted “because Justice Department attorneys found that they often need
active assistance from . . . investigators from the [FBI], IRS, and other law
enforcement agencies”); Fed. R. Crim. P. 6 advisory committee’s note (1977
Enactment) (stating that “[o]ften the prosecutors need the assistance of the agents
in evaluating evidence” or conducting “further investigation”). As we have
discussed, OIG agents have a number of investigative duties, and are required to
“report expeditiously to the Attorney General whenever the Inspector General has
reasonable grounds to believe there has been a violation of Federal criminal law.”
5 U.S.C. app. § 4(d); see Investigative Officers, 14 Op. O.L.C. at 109. Hence, a
Department attorney may authorize disclosure of information to OIG in connection
with an OIG investigation that the attorney concludes will be likely to aid in an
ongoing or potential prosecution in which the attorney is involved.
Second, we think that exception (A)(ii) permits a Department leadership official to
authorize disclosure of grand jury information to OIG in connection with OIG
investigations or reviews that the official believes could assist her in carrying out her
duty to conduct programmatic or policy supervision of the Department’s criminal law
enforcement activities. As we discussed in analyzing the scope of permissible
disclosure under Title III, programmatic and policy supervision can affect the
prevention, investigation, or prosecution of criminal conduct as directly as individual
trial decisions, see Van de Kamp, 555 U.S. at 346, and constitute a central means by
which the Attorney General and her assistants direct and control the Department’s law
enforcement and prosecutorial functions. See supra pp. 14–15. Such activities are thus
part of Department leadership’s “duty to enforce federal criminal law” under the plain
language of that phrase. Further, it would be reasonable for a member of Department
leadership to “consider[]” many OIG reviews “necessary to assist” her in performing
this duty. Fed. R. Crim. P. 6(e)(3)(A)(ii). As we also noted in the Title III context,
Congress established OIG to “keep[] the head of the [Department] . . . informed about
problems” in the Department and to recommend “corrective action,” 5 U.S.C. app.
§ 2(3), and OIG’s reviews have historically provided the Department’s leadership
with “critical advice, information, and insights in connection with the exercise of their
supervisory responsibilities over the Department’s criminal law enforcement
programs, policies, and practices,” Yates Letter at 3. It would therefore generally be
reasonable for a member of Department leadership to conclude that an OIG
investigation or review that concerns, or is designed to develop recommendations
about, the manner in which the Department enforces federal criminal law is “necessary
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to assist” in the disclosing official’s supervision of that function on a programmatic or
policy basis.
We acknowledge that certain language in Sells might be read to suggest a
narrower scope of appropriate disclosures. In particular, various statements in the
opinion could be read to suggest that an attorney’s “duty” under exception (A)(i)
includes only her duty to conduct or supervise a particular pending prosecution. See,
e.g., Sells, 463 U.S. at 427 (“We hold that (A)(i) disclosure is limited to use by those
attorneys who conduct the criminal matters to which the materials pertain.”
(emphasis added)); id. at 429 n.11 (stating that “every attorney (including a super-
visor) who is working on a prosecution may have access to grand jury materials, at
least while he is conducting criminal matters” (emphasis added)); id. at 438 (noting
that the “primary objection” to a proposal to allow disclosures to other governmental
personnel was a concern that they would use grand jury information “to pursue civil
investigations or unrelated criminal matters” (emphasis added)). And although
Sells concerned exception (A)(i)—which authorizes disclosures for use in perform-
ing an attorney’s “duty”—rather than exception (A)(ii)—which authorizes
disclosure in connection with an attorney’s “duty to enforce federal criminal law”—
the Sells Court explained that the “criminal-use limitation” in exception (A)(ii)
“merely ma[de] explicit what [Congress] believed to be already implicit in the
existing (A)(i) language.” Id. at 436. This suggests that the Court would have
viewed its analysis of the limitations on exception (A)(i) as applicable to exception
(A)(ii) as well. Thus, it might be argued that programmatic and policy supervision
does not fall within an attorney’s “duty to enforce federal criminal law” because it
differs from the duties discussed in Sells in two respects: first, it involves
supervision of law enforcement agents in addition to prosecutors; and second, it
concerns criminal matters unrelated to the grand jury investigation in which the
information to be disclosed was developed. It might also be argued that disclosure
to OIG is different from the disclosures contemplated in Sells because OIG will
frequently use grand jury information to investigate past conduct in completed law
enforcement operations, rather than to assist in ongoing prosecutions.
In our view, however, notwithstanding these distinctions, Sells and subsequent
opinions support reading exception (A)(ii) to permit disclosures to OIG in
connection with Department leadership’s duties of programmatic and policy
supervision. With respect to the first arguable distinction—between supervision of
law enforcement officers and supervision of prosecutors—Sells expressly
recognized that a prosecutor’s authority to “command[]” law enforcement officers
is a critical means by which she carries out her prosecutorial duties and renders
assistance to the grand jury. Sells, 463 U.S. at 430 (stating that “a modern grand jury
would be much less effective without the assistance of the prosecutor’s office and
the investigative resources it commands”); id. at 430 n.13 (“Not only would the
prosecutor ordinarily draw up and supervise the execution of subpoenas, but also he
commands the investigative forces that might be needed to find out what the grand
jury wants to know.”). Moreover, as Sells also recognized (and as we noted above),
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Congress added exception (A)(ii) in part to ensure that prosecutors could obtain the
assistance of law enforcement officers in developing the basis for and conducting
prosecutions. See id. at 436. Sells therefore fully supports the proposition that the
duty to supervise prosecutions includes a duty to supervise law enforcement officers
in conduct that assists with prosecutions.
We likewise believe that the second arguably distinctive characteristic of
programmatic and policy supervision—that it concerns criminal matters unrelated
to the grand jury investigation in which the materials being sought were originally
developed—is consistent with Sells. Lower courts, treatises, and this Office have
repeatedly interpreted Sells to permit disclosure in connection with any “criminal
matters to which [grand jury] materials pertain,” id. at 427, and not merely those
matters in which the information was developed. See, e.g., Impounded, 277 F.3d
407, 413 (3d Cir. 2002) (holding that the disclosure of grand jury materials to a
federal prosecutor in another district was permissible under exception (A)(i)); 1 Sara
Sun Beale et al., Grand Jury Law and Practice § 5:8, at 5-58 (2d ed. 2014) (“Beale”)
(stating that an attorney may make a disclosure under exception (A)(i) “in
connection with a separate prosecution”); Shanks Memorandum at 2 (concluding
that exception (A)(ii) authorizes disclosure to FBI agents assisting in “a specific
criminal investigation” unrelated to the initial grand jury investigation); cf. Fed. R.
Crim. P. 6(e)(3)(C) (permitting the automatic disclosure of grand jury materials to
“another federal grand jury”). This Office has also previously concluded that the
disclosure authorization in exception (A)(ii) extends to general supervision of law
enforcement activities as well as to specific prosecutions: In our Rule 6(e)
Intelligence Community opinion, for example, we advised that the Attorney General
may make disclosures to assist “a broad criminal law enforcement program for
which [she] is responsible,” 21 Op. O.L.C. at 171; and in our Disclosure to the
President opinion, we cited legislative history supporting the view that “Congress
intended federal prosecutors to have broad leeway in deciding what government
personnel should have access to grand jury materials for purposes of facilitating
enforcement functions,” 17 Op. O.L.C. at 62. See also 1 Beale § 5:8, at 5-58 (stating
that attorneys may disclose materials “in connection with the evaluation or planning
of broad prosecutorial policies”).
Consistent with these authorities, we do not think the language in Sells referring
to specific “prosecutions,” e.g., 463 U.S. at 429 n.11, should be read to preclude
disclosures that an attorney believes could aid the general supervision of the
Department’s law enforcement programs and activities. To begin with, the Court in
Sells addressed the permissibility of disclosure only in connection with civil
litigation, see id. at 420; it did not discuss, and had no occasion to address, the
permissible scope of disclosure in connection with programmatic supervision of
criminal law enforcement. Moreover, other language in the opinion is consistent
with permitting disclosure for broad supervisory purposes. The Court expressly
noted that exception (A)(ii) gives prosecutors a “free hand concerning use of grand
jury materials” in connection with criminal matters. Id. at 441–42; see also
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Disclosure to the President, 17 Op. O.L.C. at 62 (noting the “broad leeway”
possessed by attorneys under exception (A)(ii)). Further, permitting disclosure for
broad supervisory purposes would not raise the policy concerns that led the Sells
Court to deem disclosure for civil purposes unlawful: because such disclosure would
not be used in connection with investigating the subjects of or witnesses in the
underlying grand jury investigations, it would not discourage witnesses from
testifying, create incentives for prosecutors to misuse the grand jury, or subvert
limits on civil discovery. See Sells, 463 U.S. at 432–34; OPR Memorandum at 4–6
(similarly distinguishing Sells on this basis). In addition, prohibiting such disclosure
would have the same kinds of disruptive effects we identified in connection with
Title III, by preventing Department leadership from obtaining (or disclosing) Rule
6(e) information for the purpose of conducting policy or programmatic supervision
of grand jury proceedings or other law enforcement programs that used grand jury
information. For all these reasons, we doubt that if the Supreme Court had squarely
addressed the question, it would have concluded that exception (A)(ii) does not
permit the Attorney General and her assistants to obtain or disclose grand jury
information in order to set policies and develop guidance for law enforcement
purposes.
Finally, while it is true that OIG officials would frequently use grand jury
information to evaluate completed law enforcement operations rather than to assist
in ongoing operations or prosecutions, “supervisors . . . must be able to evaluate
[past] conduct once a course of action has been set” to “perform properly their
oversight role.” OPR Memorandum at 7. As we explained in our OPR Memo-
randum, “post mortem review” of the conduct of a prosecution is necessary to
evaluate and, if appropriate, take administrative action with respect to that conduct.
Id. at 8. OIG investigations and reviews of the past conduct of Department criminal
law enforcement programs likewise help Department leadership evaluate that
conduct and take appropriate corrective action if necessary. We therefore believe
that, notwithstanding the apparently narrow language in Sells, Department
leadership’s “duty to enforce federal criminal law” includes its duties to supervise
Department law enforcement efforts on a programmatic and policy basis, and that
it would generally be reasonable for Department leadership to “consider[]” it
“necessary to assist” it in performing these duties to authorize the disclosure of
grand jury information to OIG in connection with investigations or reviews that
concern, or are designed to develop recommendations about, the manner in which
the Department carries out its criminal law enforcement functions. Fed. R. Crim. P.
6(e)(3)(A)(ii).
As in the Title III context, however, we do not think that exception (A)(ii) would
permit Department attorneys to disclose grand jury material to OIG in relation to all
OIG audits, investigations, and reviews. In particular, we doubt that a Department
leadership official may authorize disclosures in connection with investigations that
are only tangentially related to programmatic and policy supervision of law
enforcement activities, such as routine financial audits of components that happen
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to engage in law enforcement functions. Similarly, especially in light of Sells, we
do not believe a Department attorney may authorize disclosure of grand jury
information to OIG in connection with OIG investigations or reviews that primarily
relate to civil enforcement or recovery efforts (such as investigations designed to
assist the Department in recovering funds through a False Claims Act suit), rather
than criminal prosecutions.
C.
The third and final statutory prohibition on disclosure we consider is section 626
of FCRA. Congress enacted FCRA to ensure “fair and accurate credit reporting,”
which it deemed “essential to the continued functioning of the banking system.”
15 U.S.C. § 1681(a)(1). FCRA comprehensively regulates the “confidentiality,
accuracy, relevancy, and proper utilization” of information held by consumer credit
reporting agencies. Id. § 1681(b). Among other things, it restricts the circumstances
in which consumer reporting agencies may disclose consumer credit reports, id.
§ 1681b; specifies what information may be contained in those reports, id. § 1681c;
and imposes civil, administrative, and sometimes criminal liability for failure to
comply with its requirements, id. §§ 1681n–1681s.
In 1996, Congress amended FCRA to add a new basis for disclosure of consumer
credit information. See Intelligence Authorization Act of 1996, Pub. L. No. 104-93,
sec. 601(a), § 624, 109 Stat. 961, 974 (codified at 15 U.S.C. § 1681u). The new
provision, now FCRA section 626, authorizes the FBI to present a consumer credit
reporting agency with a written request, signed by the Director of the FBI or his
designee, certifying that the FBI seeks certain information “for the conduct of an
authorized investigation to protect against international terrorism or clandestine
intelligence activities.” 15 U.S.C. § 1681u(a). Upon receipt of such a National
Security Letter (“NSL”), a credit agency must disclose to the FBI the “names and
addresses of all financial institutions . . . at which a consumer maintains or has
maintained an account,” id., and “identifying information respecting a consumer,
limited to name, address, former addresses, places of employment, or former places
of employment,” id. § 1681u(b). Section 626(f) bars further dissemination of this
information except in limited circumstances. It provides:
The Federal Bureau of Investigation may not disseminate information
obtained pursuant to this section outside of the Federal Bureau of
Investigation, except to other Federal agencies as may be necessary
for the approval or conduct of a foreign counterintelligence
investigation, or, where the information concerns a person subject to
the Uniform Code of Military Justice, to appropriate investigative
authorities within the military department concerned as may be
necessary for the conduct of a joint foreign counterintelligence
investigation.
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Id. § 1681u(f). FCRA makes any violation of this section by a federal agency or
officer grounds for civil damages or disciplinary action. Id. § 1681u(i)–(j).
OIG argues that under the terms of section 626(f), it may obtain unrestricted
access to consumer information that the FBI has obtained under section 626. In
OIG’s view, it is exempt from the limitations on disclosure contained in
section 626(f) because it is part of the same agency as the FBI. See OIG 2014
Memorandum at 12–13; OIG FCRA Memorandum at 3. We consider this argument
below. In addition, although OIG does not make the argument, we consider whether
OIG may obtain section 626 information under the first exception set forth in
section 626(f), which permits the FBI to make disclosures “to other Federal agencies
as may be necessary for the approval or conduct of a foreign counterintelligence
investigation.” 15 U.S.C. § 1681u(f). As we will explain, we conclude that although
OIG is subject to section 626(f)’s prohibition on disclosure, it may nonetheless
obtain covered information under that provision’s first exception in certain
circumstances.
1.
OIG argues that it is permitted to obtain section 626 information from the FBI in
connection with any of its audits, investigations, or reviews. It contends that, while
section 626(f) bars the FBI from disclosing information obtained pursuant to an
NSL to “other Federal agencies,” except “as may be necessary for the approval or
conduct of a foreign counterintelligence investigation,” this bar does not apply to
OIG because both OIG and the FBI are components of the Department. See OIG
FCRA Memorandum at 3. OIG argues that this reading of section 626(f) is
supported by the text of that provision’s first exception, by implication from a
statute enacted subsequent to section 626, and by the general purposes of OIG
reviews. See OIG 2014 Memorandum at 12–14; OIG FCRA Memorandum at 2–4.
OIG’s interpretation is difficult to square with the plain language of the statute.
Section 626(f) states that the FBI “may not disseminate information obtained
pursuant to this section outside of the Federal Bureau of Investigation” except in
two specific circumstances. On its face, this provision unambiguously bars the FBI
from disclosing information outside of the FBI, unless an exception applies. OIG is
outside of the FBI, and so falls within this prohibition on disclosure. OIG’s
argument—that it is exempt from the prohibition because it is a Department
component—would require reading “Federal Bureau of Investigation” to mean
“Department of Justice.” But these two entities are not equivalent, and Congress
chose to refer to the former rather than the latter in section 626(f).
OIG disputes this straightforward reading of section 626(f) by pointing to the
provision’s first exception, which permits the FBI to disclose section 626
information to “other Federal agencies.” OIG reasons that because other
components of the Department are part of the same agency as the FBI, and “not an
‘other Federal agency’” relative to the FBI, they cannot qualify for disclosure under
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Department of Justice Inspector General’s Access to Information
this exception. OIG FCRA Memorandum at 2. As a consequence, this argument
continues, reading section 626(f) as its plain text indicates would lead to the unlikely
result that the FBI could never disclose section 626 information to Department
officials outside the FBI—a result that, as OIG explains, would be inconsistent with
the Department’s longstanding practice of making section 626 information
available to the National Security Division (“NSD”) for purposes of overseeing the
FBI’s operations. See id.
We agree that it is highly unlikely that Congress would have barred the FBI from
disclosing section 626 information within the Department, particularly while
permitting such disclosure to agencies outside the Department. However, we
disagree that the statute’s reference to “other Federal agencies” compels such a
result. Although the term “agency” is sometimes used to refer to the Department of
Justice as a whole, it is also used to refer to components within the Department.
Compare 28 U.S.C. § 527 (distinguishing between “the Department of Justice” and
“other Federal agencies”) and 5 U.S.C. § 5721(1)(A) (“[f]or the purpose of this
subchapter . . . ‘agency’ means . . . an Executive agency”) with 28 U.S.C. § 509(vesting “all functions of agencies and employees of the Department of Justice” in
the Attorney General) and 5 U.S.C. § 551 (“For the purpose of this subchapter . . .
‘agency’ means each authority of the Government of the United States, whether or
not it is within or subject to review by another agency.”). In our view, the term
“agency” is best read in the latter sense in section 626(f). Notably, the statute does
not simply state that the FBI “may not disseminate [section 626 information], except
to other Federal agencies” for certain purposes; it says the FBI “may not disseminate
[section 626 information] outside the FBI, except to other Federal agencies” for
those purposes. 15 U.S.C. § 1681u(f) (emphasis added). The express reference to
“outside the FBI” strongly suggests that “other Federal agencies” refers to any
federal entity other than the Federal Bureau of Investigation, including other
components of the Department.
This conclusion is reinforced by the significant role that other Department
components play in “the approval or conduct of [the FBI’s] foreign
counterintelligence investigation[s].” Id. For decades, the Attorney General has
been authorized to “supervis[e]” and “establish” “regulations” concerning the FBI’s
counterintelligence activities. Exec. Order No. 12333, § 1.14, 46 Fed. Reg. 59941,
59949 (Dec. 4, 1981); see The Attorney General’s Guidelines for Domestic FBI
Operations at 5 (Sept. 2008) (“AG Guidelines”) (available at http://www.justice.
gov/sites/default/files/ag/legacy/2008/10/03/guidelines.pdf, last visited July 20,
2015) (setting guidelines for the conduct of domestic FBI operations, including
“counterintelligence activities”); Memorandum for the Director, FBI, et al., from
the Attorney General, Re: Intelligence Sharing Procedures for Foreign Intelligence
and Foreign Counterintelligence Investigations Conducted by the FBI (Mar. 6,
2002); 28 C.F.R. § 0.72 (assigning counterintelligence oversight functions to NSD).
By permitting disclosure for the “approval” of counterintelligence investigations,
Congress presumably intended to permit the FBI to make disclosures consistent with
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this longstanding grant of supervisory authority. Indeed, a prior version of the bill
would have made the first exception applicable exclusively to disclosures within the
Department of Justice. See Comprehensive Terrorism Prevention Act of 1995,
S. 735, 104th Cong. § 502(a) (1995) (“The [FBI] may not disseminate information
obtained pursuant to this section outside of the [FBI], except . . . to the Department
of Justice, as may be necessary for the approval or conduct of a foreign
counterintelligence operation.”). It is unlikely that, in later broadening the scope of
the exception to allow disclosures to “other Federal agencies,” Congress intended
to exclude disclosures to the agency that was previously the exception’s sole
beneficiary.
OIG also argues that its view that section 626(f) permits disclosure to OIG finds
support in a statutory provision Congress enacted after section 626: section 119 of
the USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No.
109-177, 120 Stat. 192, 219 (“Patriot Reauthorization Act”). As OIG points out,
section 119 of the Patriot Reauthorization Act directed OIG to “perform an audit of
the effectiveness and use, including any improper or illegal use, of national security
letters issued by the Department of Justice,” including NSLs issued pursuant to
section 626. Id. § 119(a), (g)(4). OIG argues that “[f]ulfilling the mandates of the
Patriot Reauthorization Act . . . clearly required [it] to have access to the ‘raw data’
the Department obtained through [NSLs], including Section [626] credit report
information.” OIG 2014 Memorandum at 13. And because that Act “contained no
provision granting the OIG access to Section [626] information,” OIG reasons that
“in 2005 Congress believed the OIG already had access to FCRA information in
order to audit such dissemination.” Id. (emphasis added). But this provision suggests
at most that the Congress that enacted the Patriot Reauthorization Act believed OIG
would have access to section 626 information as necessary for OIG to evaluate the
legality and effectiveness of the Department’s use of NSLs. And for reasons we
explain below, we believe OIG is eligible to receive section 626 information for that
purpose under section 626(f)’s first exception. See infra Part II.C.2. The Patriot
Reauthorization Act thus does not provide a basis for reading section 626(f),
contrary to its plain text, to grant OIG unfettered access to such information.
Finally, OIG contends that the limits on dissemination contained in section 626
were intended to protect consumer privacy, and that it would undermine rather than
further that purpose to prohibit OIG from obtaining the information necessary to
determine whether the FBI is abiding by section 626’s requirements. See OIG 2014
Memorandum at 12–13; OIG FCRA Memorandum at 3. We agree that, in enacting
section 626, Congress sought to build “safeguards . . . into the legislation” that
would “minimiz[e]” the “threat to privacy” posed by the FBI’s ability to use NSLs.
H.R. Rep. No. 104-427, at 36 (1995); see also 15 U.S.C. § 1681(a)(4) (finding “a
need to insure that consumer reporting agencies exercise their grave responsibilities
with . . . a respect for the consumer’s right to privacy”). But it is entirely consistent
with Congress’s purpose of protecting consumer privacy to prevent broad disclosure
of consumer information even within the Department of Justice. Nor would a
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restriction on disclosure outside the FBI necessarily preclude all oversight of the use
of section 626 authority, insofar as the FBI’s internal audit department or Office of
Professional Responsibility could conduct reviews of the use of that authority.
Further, as we explain below, we believe OIG may obtain section 626 information
in order to monitor the FBI’s compliance with FCRA’s disclosure restrictions
pursuant to section 626(f)’s first exception. The statute’s purpose thus does require
OIG to have blanket access to section 626 information.
2.
We now consider whether OIG is eligible to receive disclosures under
section 626(f)’s first exception, which authorizes the FBI to disclose information
obtained pursuant to an NSL “to other Federal agencies as may be necessary for the
approval or conduct of a foreign counterintelligence investigation.” 15 U.S.C.
§ 1681u(f). As we have discussed, components of the Department outside the FBI,
including OIG, are “other Federal agencies” within the meaning of this provision.
See supra pp. 38–40. Consequently, this exception permits OIG to obtain access to
section 626 information “as may be necessary for the approval or conduct of a
foreign counterintelligence investigation.” 15 U.S.C. § 1681u(f).
In our view, this language authorizes disclosure in two broad circumstances. First,
and most straightforwardly, it authorizes disclosures as necessary to facilitate approval
of a particular foreign counterintelligence investigation, or to obtain assistance in
conducting such an investigation. 16 For example, the first exception would allow the
FBI to disclose information to Department attorneys in order to enable those attorneys
to file an application for electronic surveillance pursuant to Title III or the Foreign
Intelligence Surveillance Act of 1978, 50 U.S.C. §§ 1801 et seq., or to advise the FBI
on the legality of a method the FBI proposes to use in an investigation. In addition,
the first exception would allow the FBI to disclose information to Department
supervisors to enable them to monitor a particular foreign counterintelligence
operation, to ensure that it was being conducted lawfully and in conformance with
Department guidelines.
Second, we believe that section 626(f)’s first exception permits disclosure of
information as necessary for the programmatic and policy supervision of foreign
counterintelligence investigations generally—that is, to ensure that investigations
are (or were) approved or conducted in accordance with applicable statutes,
regulations, and guidelines; to identify systemic problems in the approval or conduct
of investigations; and to update guidelines and procedures in response to identified
deficiencies. It is true that section 626(f) authorizes disclosures only as necessary
for the approval or conduct of “a foreign counterintelligence investigation.” But
Congress has instructed that “unless the context indicates otherwise . . . words
16
As in the case of Rule 6(e)(3)(A)(ii), we presume that Congress used the word “necessary” to mean
useful or conducive rather than required. See supra note 15.
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importing the singular include and apply to several persons, parties, or things.”
1 U.S.C. § 1; see also Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 132 S. Ct.
1670, 1681 (2012) (explaining that the meaning of the word “a” and its variants
“turns on its context”). In this case, we have not found any indication in the statute
or its legislative history—apart from the use of the phrase “a[n] . . . investigation”
itself—that Congress intended to permit disclosures in connection with only one
investigation at a time. Nor, of particular relevance here, can we find any indication
that Congress intended to prevent Department leadership officials from obtaining
information protected by section 626(f) for use in supervising the FBI’s conduct of
foreign counterintelligence investigations. In a manner similar to that discussed in
the Title III and Rule 6(e) contexts, Department leadership would be severely
constrained in its ability to supervise the FBI’s conduct of such investigations on a
programmatic or policy basis, and to supervise the FBI’s use of NSLs issued
pursuant to section 626 on a similar basis, if it could not obtain section 626
information for that purpose. Indeed, under guidance issued by Department
leadership, the FBI routinely provides section 626 information to other Department
components to assist in such supervision. See, e.g., AG Guidelines at 10–11
(authorizing disclosure of section 626 information to NSD for supervisory
purposes). And, as noted above, Congress likewise assumed in the Patriot
Reauthorization Act that OIG would be able to obtain the “raw data” needed to
conduct a review of the FBI’s use of NSLs. See supra p. 40. In light of these
considerations, we believe that section 626(f)’s first exception permits the FBI to
disclose section 626 information not only to obtain assistance in “the approval or
conduct” of a particular foreign counterintelligence investigation, but also to aid in
supervision of “the approval or conduct” of foreign counterintelligence
investigations generally.
OIG may in principle obtain section 626 information under either of these
rationales. It appears unlikely that the FBI would need to disclose section 626
information to OIG to obtain assistance in the approval or conduct of a particular
foreign counterintelligence investigation, since OIG involvement in such investiga-
tions would generally entail exercising “program operating responsibilities” that the
Attorney General may not assign to OIG. 5 U.S.C. app. § 9(a); see also Authority to
Conduct Regulatory Investigations, 13 Op. O.L.C. at 61–62. However, there might
be rare circumstances in which a foreign counterintelligence investigation was
intertwined with an investigation of internal misconduct. In such circumstances, it
is conceivable that OIG could obtain section 626 information to facilitate the
conduct of that investigation.
In other circumstances, OIG could obtain information under the broader
supervisory rationale. As we have noted elsewhere, OIG plays a central role in helping
Department leadership supervise the Department’s law enforcement activities through
both reviews of misconduct and programmatic reviews intended to help improve law
enforcement operations in the future. See supra pp. 16–18, 33–34. In the context of
section 626, it is reasonable to conclude that OIG investigations and reviews that could
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Department of Justice Inspector General’s Access to Information
inform decisions by Department leadership concerning supervision of foreign
counterintelligence investigations—such as OIG’s congressionally-mandated review
of the FBI’s use of NSLs—are “necessary for the approval or conduct of” those
investigations within the meaning of section 626(f). An OIG review of foreign
counterintelligence investigations could, for example, lead to changes in the process
for authorizing such investigations, or help leadership officials ensure that
investigations are carried out lawfully. Indeed, OIG’s review of the FBI’s use of NSLs
illustrates how such a process might work. After that review uncovered serious
problems with the FBI’s use of NSLs, the Department implemented a number of
measures aimed at ensuring greater supervision and control of the FBI’s activities. See
Fact Sheet: Department of Justice Corrective Actions on the FBI’s Use of National
Security Letters (Mar. 20, 2007) (available at http://www.justice.gov/archive/opa/pr/
2007/March/07_nsd_168.html, last visited July 20, 2015) (“Corrective Actions on the
FBI’s Use of NSLs”). These measures included retrospective and continuing audits of
the FBI’s NSL usage designed to identify potential legal violations, as well as
measures intended to allow the Attorney General to promptly address needed changes
in policy, training, and oversight. Id. Because investigations and reviews of this kind
concern, or are designed to develop recommendations about, leadership decisions
regarding the approval or conduct of foreign counterintelligence investigations, they
are in our view “necessary to the approval or conduct” of such investigations as that
phrase is used in section 626(f).
This reading of section 626(f) is further supported by the FBI’s practice of
providing information obtained through NSLs to NSD to facilitate NSD’s
supervision of the FBI’s compliance with applicable laws and guidelines in matters
relating to national security and foreign intelligence. See AG Guidelines at 10–11.
OIG correctly notes that NSD was given responsibility to oversee the FBI’s
activities following OIG’s critical review of the FBI’s use of NSLs, and that NSD’s
reviews are patterned after OIG reviews. See NSD E-mail; see also OIG FCRA
Memorandum; Corrective Actions on the FBI’s Use of NSLs. It would be
incongruous to conclude that the FBI may disseminate section 626 information to
NSD because its reviews are “necessary for the approval or conduct of a foreign
counterintelligence investigation,” but that the FBI is barred from providing the
same information to OIG in connection with reviews that share a similar purpose
and methodology, and likewise assist the Department’s leadership in its supervisory
functions. For reasons similar to those set forth in our discussion of Title III, see
supra p. 18, we do not believe that OIG’s relative independence from the
Department’s leadership makes its reviews less valuable to leadership, or less
“necessary for the approval or conduct” of foreign counterintelligence investiga-
tions, than the comparable reviews performed by NSD.
Accordingly, we conclude that the FBI may disseminate section 626 information
to OIG in connection with investigations and reviews that concern, or are designed
to develop recommendations about, leadership decisions regarding the approval or
conduct of foreign counterintelligence investigations. This conclusion, however, is
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subject to the same limitation we have explained in other contexts: OIG audits,
investigations, and reviews that have only an attenuated connection to Department
leadership’s supervisory responsibilities relating to foreign counterintelligence
investigations, such as routine financial audits of the FBI entities that carry out such
investigations, would likely not qualify for disclosure under section 626. See supra
pp. 18–19, 36–37 (discussing similar limit in the context of Title III and Rule 6(e)
disclosures).
*****
In sum, Title III, Rule 6(e), and FCRA permit the disclosure of covered
information in connection with many of OIG’s investigations and reviews. Title III
permits a Department investigative or law enforcement officer to disclose to OIG
the contents of intercepted communications to the extent that disclosure could aid
either the disclosing official or OIG in the performance of their respective duties
related to law enforcement—including duties related to Department leadership’s
programmatic or policy supervision of the Department’s law enforcement activities.
Rule 6(e), similarly, permits the disclosure of grand jury materials to OIG if an
attorney for the government determines that such disclosure could assist her in the
performance of her criminal law enforcement duties, including any supervisory law
enforcement duties that attorney may have. And FCRA permits the FBI to disclose
to OIG consumer information it obtained pursuant to section 626, if such a
disclosure could assist in the approval or conduct of foreign counterintelligence
investigations, including in the supervision of such investigations on a program-
matic or policy basis. 17
These statutes do not, however, authorize Department officials to disclose
protected information to OIG in connection with all of OIG’s activities. As we have
noted, Title III and Rule 6(e) do not permit disclosures that have either an attenuated
or no connection with the conduct of the Department’s criminal law enforcement
programs and operations, and section 626 of FCRA does not permit disclosures that
have either an attenuated or no connection with the approval or conduct of foreign
counterintelligence investigations. Thus, for example, Title III, Rule 6(e), and section
626 do not permit OIG to obtain covered information to assist in investigations of the
Department’s civil activities that are only tangentially related to criminal law
enforcement or foreign counterintelligence efforts, or to conduct routine financial
audits of Department components. Even when these statutes permit disclosures to
OIG, moreover, they impose certain procedural preconditions on those disclosures.
17
You have not asked, and this opinion does not address, what further disclosures OIG may make of
sensitive information it receives under Title III, Rule 6(e), or FCRA. We stress, however, that nothing in
this opinion is intended to suggest that OIG may disclose protected materials in a public report.
Information received by OIG remains subject to the statutory restrictions on disclosure, and OIG may
further disclose that information only to the extent permitted by those restrictions and any other
applicable laws.
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Department of Justice Inspector General’s Access to Information
Disclosures under Title III require an assessment of whether a particular OIG
investigation is appropriate to the proper performance of an official duty related to law
enforcement. Disclosures under Rule 6(e) require an independent judgment, made by
an attorney for the government, that OIG assistance is necessary to perform that
attorney’s duty to enforce criminal law, and further require compliance with certain
additional procedural obligations. And disclosures under section 626 of FCRA require
an assessment of whether an OIG investigation is “necessary for the approval or
conduct” of foreign counterintelligence investigations.
If section 6(a)(1) of the IG Act displaced the limitations on disclosure in these
statutes, it would—unlike these statutory exceptions—permit unconstrained
disclosure of all protected information to OIG. Thus, OIG could receive information
protected by Title III, Rule 6(e), and section 626 in connection with its
investigations of the Department’s civil activities, its routine financial or
administrative audits, and any other of its authorized activities. Moreover,
information already available to OIG under the terms of Title III, Rule 6(e), and
section 626 would be available without a prior assessment of whether that
information was related to the Department’s law enforcement functions or the FBI’s
conduct of foreign counterintelligence investigations, and, in the case of Rule 6(e)
information, without a prior determination by an attorney for the government that
OIG assistance was necessary to assist in performing the attorney’s duty to enforce
federal criminal law. Because section 6(a)(1) would thus provide OIG with access
to protected information in more circumstances and on broader terms than are
provided for in Title III, Rule 6(e), and section 626 themselves, we must consider
whether section 6(a)(1) overrides the limits imposed by those statutes.
III.
In this Part, we address whether section 6(a)(1) overrides the disclosure
limitations in Title III, Rule 6(e), and section 626. We first discuss the general
interpretive principles that will guide our analysis, concluding that only a clear
statement of congressional intent to override conflicting statutes would be sufficient
to abrogate the detailed prohibitions on disclosing sensitive information contained
in Title III, Rule 6(e), and section 626. We then analyze the text, structure, and
history of the IG Act to determine whether it contains such a clear statement.
Finding that it does not, we conclude that the Department remains bound by
Title III, Rule 6(e), and section 626 when it responds to OIG requests under
section 6(a)(1), and thus that it may not disclose information covered by those
statutes outside the circumstances permitted by the statutes themselves.
A.
Both the Supreme Court and this Office have repeatedly confronted apparent
conflicts between statutes that address the same subject matter. Two lines of
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authority are particularly relevant here. In the first, the Court and this Office have
considered whether statutory provisions protecting highly sensitive information can
be overridden by competing statutory rights of access. In the second, which is
sometimes intertwined with the first, the Court and this Office have considered the
circumstances in which a general statute can be construed to override a more
specific statutory provision. In addressing these subjects, the Court and this Office
have identified two salient interpretive principles that will guide our analysis.
First, in a range of contexts—including contexts involving information protected
by Rule 6(e) and Title III—the Supreme Court and this Office have declined to infer
that Congress intended to override statutory limits on the disclosure of highly
sensitive information about which Congress has expressed a special concern for
privacy, absent a clear statement of congressional intent to that effect. In Illinois v.
Abbott & Associates, Inc., 460 U.S. 557 (1983), for example, the Court held that an
antitrust statute authorizing state attorneys general to obtain, “to the extent permitted
by law, any investigative files or other materials” relevant to an antitrust suit, 15
U.S.C. § 15f(a) (1976), did not supersede the limits of Rule 6(e). 460 U.S. at 565.
The Court relied primarily on the statute’s use of the phrase “to the extent permitted
by law,” which it read to exclude from the statute’s scope any disclosures not
authorized by Rule 6(e). Id. at 566–69. But in response to the argument that such a
reading would frustrate the statute’s purpose by “severely limit[ing] the amount of
additional disclosure to state attorneys general” it made possible, id. at 572, the
Court further explained that because the rule of grand jury secrecy was “so
important, and so deeply-rooted in our traditions,” it would “not infer that Congress
has exercised [the] power [to modify it] without affirmatively expressing its intent
to do so,” id. at 572–73.
The Court and this Office have since applied this clear statement rule to Rule 6(e)
information on multiple occasions. In Sells, discussed above, the Court concluded
that Department attorneys could not disclose grand jury information for use in civil
cases in part because “the long-established policy” and “importan[ce]” of grand jury
secrecy meant that, “[i]n the absence of a clear indication in a statute or Rule,” the
Court “must always be reluctant to conclude that a breach of [grand jury] secrecy
has been authorized.” 463 U.S. at 424–25 (internal quotation marks omitted); see
id. at 435 (refusing to adopt a “plausible” but broad construction of exception (A)(i)
in light of the policy of grand jury secrecy and the Rule’s legislative history). And
in our Rule 6(e) Intelligence Community opinion, this Office concluded that section
104(a) of the National Security Act, which granted the Director of Central
Intelligence access to “all intelligence related to the national security,” did not
“override grand jury secrecy restrictions” because it did not “clearly manifest an
intent to reach grand jury information.” 21 Op. O.L.C. at 165 (emphasis added); see
also Memorandum for Richard K. Willard, Assistant Attorney General, Civil
Division, from Samuel A. Alito, Jr., Deputy Assistant Attorney General, Office of
Legal Counsel, Re: Authority of the FBI to Transfer Restricted Records to the
46
Department of Justice Inspector General’s Access to Information
National Archives and Records Administration at 2 (Feb. 27, 1986) (“FBI NARA
Memorandum”).
This Office has concluded that “a similar approach is appropriate” to the
protection of Title III information. Title III Intelligence Community, 24 Op. O.L.C.
at 273. In our Title III Intelligence Community opinion, we considered whether the
same provision of the National Security Act addressed in our Rule 6(e) Intelligence
Community opinion, section 104(a), superseded Title III’s limits on the disclosure
of the contents of electronic communications. We reasoned that even though
“Title III does not have the historical roots of the grand jury secrecy rule,” we should
be similarly reluctant to conclude that Congress had abrogated Title III’s limits. Id.
This was so, we explained, because of the strong “privacy interests underlying” and
reflected in Title III, and the “constitutional concerns” that might be raised by
permitting government entities to broadly disclose the contents of intercepted
communications between private parties. Id. at 272–73 (citing In re Application of
Nat’l Broad. Co., 735 F.2d 51 (2d Cir. 1984)); see also Scott, 436 U.S. at 132 (noting
that Berger and Katz “proscribed” the “indiscriminate use of wire surveillance”
(internal quotation marks omitted)). We also observed that “[n]othing in the
language of section 104(a) . . . refers to Title III information,” and that “there is
nothing in the legislative history of that section that suggests that Congress
considered Title III information” in enacting that statute. Title III Intelligence
Community, 24 Op. O.L.C. at 272. We therefore advised that “in the absence of at
least some evidence that Congress intended to create a new exception to Title III’s
limits on disclosure,” section 104(a) of the National Security Act should not be read
to “permit otherwise prohibited disclosure of Title III information to members of
the intelligence community.” Id. at 273. Likewise, facing an apparent conflict
between Title III and a statute authorizing the FBI to transfer records to the National
Archives and Records Administration, we explained that because Title III, like
Rule 6(e), “enact[s] [a] strict rule[] of secrecy,” makes violations of the rule a
felony, and “protect[s] highly important privacy rights,” its provisions had to “take
precedence” over the statute governing transfers to the National Archives, absent
“evidence that Congress contemplated” the transfer of Title III information to the
Archives. FBI NARA Memorandum at 2.
We have not previously considered whether a similar clear statement rule should
apply to information protected by section 626 of FCRA. But we have applied much
the same clear statement rule to other highly sensitive information, in addition to
Title III and Rule 6(e) information, that Congress has protected from disclosure
through statutes that suggest a special concern for privacy. For instance, we
concluded in 1977 that “any doubts” about Congress’s intent to permit disclosure of
tax return information “should be resolved in favor” of confidentiality, in light of
the “rigid safeguards” Congress set up in the statute and the strict penalties that
Congress imposed for unauthorized disclosure. Transfer of Watergate Special
Prosecution Task Force Records to the National Archives, 1 Op. O.L.C. 216, 218–
19 (1977) (“Watergate NARA Opinion”); see id. at 219 (advising that disclosure of
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such records would be lawful only if there were “explicit legislative authorization”).
Reaffirming this conclusion in 1986, we explained that the reasons for applying a
clear statement rule to tax return information were “similar” to those underlying the
rule for Title III and Rule 6(e) information: the language of all three statutory
regimes, together with their legislative history, “express[ed] a strong congressional
intent to maintain very strict privacy for such information.” FBI NARA
Memorandum at 1–2. Similarly, we have long concluded that in light of “the federal
government’s longstanding commitment to confidentiality” of census information,
and the “broad confidentiality protection[s]” that Congress enacted for such
information, we must not infer that a statute authorizes its disclosure unless “the
evidence of congressional intention compel[s] such a conclusion.” Memorandum
for Cameron F. Kerry, General Counsel, Dep’t of Commerce, from Jeannie S. Rhee,
Deputy Assistant Attorney General, Office of Legal Counsel, Re: Census
Confidentiality and the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 at 8
(Jan. 4, 2010) (“Census Confidentiality”); see also Confidential Treatment of
Census Records, 40 Op. Att’y Gen. 326, 328 (1944); United States v. Bethlehem
Steel Corp., 21 F.R.D. 568, 572 (S.D.N.Y. 1958) (stating that “the purpose to protect
the privacy of [census] information . . . is so clear and the public policy underlying
the purpose so compelling” that authority to abrogate that privacy should not be
inferred “absent a clear Congressional grant”).
In our view, the logic of these opinions, and of the prior opinions concerning
Rule 6(e) and Title III information, extends to section 626 of FCRA. All of these
opinions involved highly sensitive information with respect to which Congress has
“expressed a strong congressional intent to maintain very strict privacy” in various
ways, including through “strict” or “rigid” rules of secrecy applicable to government
officials, FBI NARA Memorandum at 1–2; Watergate NARA Opinion, 1 Op.
O.L.C. at 219; penalties for unauthorized disclosure, FBI NARA Memorandum
at 2–3; Watergate NARA Opinion, 1 Op. O.L.C. at 218; and, in some but not all
circumstances, a “long-established policy” of confidentiality, Sells, 463 U.S. at 424;
Census Confidentiality at 8; cf. Title III Intelligence Community, 24 Op. O.L.C.
at 273 (noting that “Title III does not have the historical roots of the grand jury
secrecy rule”). Further, “the privacy interests at stake” in these opinions were “not
primarily those of the government but of third parties, such as taxpayers and grand
jury witnesses,” whose rights the federal government has “a duty to protect.” FBI
NARA Memorandum at 3; accord Title III Intelligence Community, 24 Op. O.L.C.
at 273. As discussed above, section 626, like Rule 6(e), Title III, and the statutes
governing protection and disclosure of tax return and census information, imposes
a strict duty of confidentiality, enforced by penalties for improper disclosure. See
supra Part II.C; 15 U.S.C. § 1681u(f), (i)–(j). Further, section 626 information, like
grand jury, Title III, tax return, and census information, is highly sensitive
information about private individuals rather than the government—indeed, it is
information that the government may have obtained without the subject’s
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knowledge. See 15 U.S.C. § 1681u(d) (authorizing the FBI to bar the provider of
section 626 information, in certain circumstances, from informing others about the
disclosure). We thus think there is a strong argument that the federal government
has a similar “duty to protect [the statutory privacy] rights” in section 626 unless
“Congress’s command is clear.” FBI NARA Memorandum at 3. See generally
Sossamon v. Texas, 131 S. Ct. 1651, 1661 (2011) (“‘[C]lear statement rules ensure
Congress does not, by broad or general language, legislate on a sensitive topic
inadvertently or without due deliberation.’” (alteration in original) (quoting Spector
v. Norwegian Cruise Line Ltd., 545 U.S. 119, 139 (2005) (plurality opinion))).
A second general principle, complementary to and often applied in conjunction
with the first, also informs our analysis. Where the Court and this Office have faced
apparent conflicts between two competing statutes, they have frequently resolved
the question by applying the “rule of relative specificity.” This “cardinal axiom of
statutory construction,” GAO Access to Trade Secret Information, 12 Op. O.L.C.
181, 182 (1988) (“GAO Access”), holds that “[w]here there is no clear
[congressional] intention otherwise, a specific statute will not be controlled or
nullified by a general one, regardless of the priority of enactment,” Morton,
417 U.S. at 550–51. Under this rule, if “a general permission or prohibition is
contradicted by a specific prohibition or permission,” then “the specific provision is
construed as an exception to the general one,” absent strong “textual indications that
point in the other direction.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank,
132 S. Ct. 2065, 2071–72 (2012); see, e.g., Morton, 417 U.S. at 535 (construing
section 12 of the Indian Reorganization Act of 1934 as an exception to the Equal
Employment Opportunity Act of 1972). This rule ensures that congressional
commands are followed to the fullest extent possible, by giving effect to the more
focused or particularized expression of Congress’s will on the particular question at
hand.
Applying the rule of relative specificity, we have often concluded that statutes
barring the disclosure of particular types of information by particular entities,
subject to particular exceptions, take precedence over statutes broadly entitling an
entity to examine federal records. In our GAO Access opinion, for instance, we
determined that a statute prohibiting the Food and Drug Administration from
disclosing trade secrets except to certain specified individuals and entities took
precedence over 31 U.S.C. § 716(a), a statute providing that “[e]ach agency shall
give the Comptroller General information [he] requires about the duties, powers,
activities, organization, and financial transactions of the agency.” See 12 Op. O.L.C.
at 182. “Since [the trade secrets statute] is a specific statute directly addressing one
executive branch agency’s handling of trade secret information, while [the
Comptroller General statute] is a general statute addressed to all kinds of
information in possession of the executive branch,” we reasoned, “[the trade secrets
statute] controls in the absence of congressional intent to the contrary.” Id. at 182–
83. Applying the same reasoning, we later concluded that section 716(a) also had to
give way to a “specific provision” that restricted “which recipients” could obtain
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certain employment information from the Department of Health and Human
Services “and under what circumstances.” Memorandum for William B. Schultz,
Acting General Counsel, Dep’t of Health and Human Services, from John E. Bies,
Deputy Assistant Attorney General, Office of Legal Counsel, Re: Whether the
Department of Health and Human Services May Provide the Government
Accountability Office Access to Information in the National Directory of New Hires
at 6 (Aug. 23, 2011). In yet another opinion, we concluded that this principle
required that a statute specifically regulating “the disclosure of information received
pursuant to” the National Traffic and Motor Vehicle Safety Act “prevails over” the
Federal Reports Act, which “deals with . . . the general matter of the
intragovernmental exchange of information.” Disclosure of Confidential Business
Records Obtained Under the National Traffic and Motor Vehicle Safety Act, 4B Op.
O.L.C. 735, 736 (1980).
In other instances, we have concluded that the rule of relative specificity operates
in tandem with the clear statement rule protecting highly sensitive information about
which Congress has expressed a special concern for privacy. For instance, we have
repeatedly stated that the rule of relative specificity, in conjunction with the other
clear statement rule discussed above, favors the “subsequently enacted, more
specific prohibition” on the disclosure of tax returns contained in 26 U.S.C. § 6103over the “general access provisions” permitting the Archivist of the United States
to obtain the records, including the confidential records, of any federal agency.
National Archives Access to Taxpayer Information, 21 Op. O.L.C. 92, 94–95
(1997). We reasoned that Congress had provided that “tax returns and tax return
information would be disclosed only under the carefully prescribed conditions set
out in” section 6103, and thus that it would be “unrealistic to assume that Congress
intended (but neglected to mention) that such materials would also be subject to
disclosure under the Archives provisions.” FBI NARA Memorandum at 2; see also
Memorandum for Alice Daniel, Assistant Attorney General, Civil Division, from
Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re:
Applicability of the Non-Disclosure Provisions of the Tax Reform Act (Nov. 7,
1980); Watergate NARA Opinion, 1 Op. O.L.C. at 218–19. We have similarly relied
on the rule of relative specificity to bolster our conclusions that Congress would not,
absent a clear statement, have overridden the “specific” and “carefully delineated”
schemes protecting Rule 6(e), Title III, and census information through general
statutes providing broad access to large categories of information held by multiple
government agencies. FBI NARA Memorandum at 2; see Census Confidentiality at
11–12.
The rule of relative specificity, of course, does not always favor a withholding
statute over an access statute. Sometimes we have deemed the rule inapplicable
because two competing statutes were comparably specific. In resolving a conflict
between Rule 6(e)’s secrecy requirement and the right of access under
section 104(a) of the National Security Act, for example, we found the rule
inconclusive because both statutes dealt with “narrow and specialized categories of
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information”—although we nonetheless found that Rule 6(e) prevailed over
section 104(a) because of the clear statement rule protecting highly sensitive
information. Rule 6(e) Intelligence Community, 21 Op. O.L.C. at 165 n.9; see also
Gulf War Veterans Health Statutes, 23 Op. O.L.C. 49, 52 (1999) (deeming the canon
inconclusive where “the two provisions are at the same order of specificity”). In
another circumstance, we concluded that the rule of relative specificity was
inconclusive in resolving a conflict between two statutes because each was “more
specific” in one respect but “less specific” in another. Restrictions on Travel by
Voice of America Correspondents, 23 Op. O.L.C. 192, 195 n.2 (1999).
Here, we believe the rule of relative specificity applies, and suggests that the
nondisclosure provisions in Title III, Rule 6(e), and section 626 should prevail over
the general right of access contained in section 6(a)(1) absent a clear indication of
congressional intent to the contrary. Most obviously, the withholding statutes
address with greater specificity the type of information they regulate: where
section 6(a)(1) directs agencies to disclose “all records” and other materials within
an inspector general’s investigative jurisdiction, Title III, Rule 6(e), and section 626
address the treatment of narrow and well-defined classes of information. See
18 U.S.C. § 2517 (“the contents of any [intercepted] wire, oral, or electronic
communication”); Fed. R. Crim. P. 6(e)(2)(B) (“a matter occurring before the grand
jury”); 15 U.S.C. § 1681u(a)–(c) (“the names and addresses of all financial
institutions . . . at which a consumer maintains or has maintained an account,” the
consumer’s “name, address, former addresses, places of employment, or former
places of employment,” and “consumer report[s]”). And, as we have explained
above, see supra Part II, Congress “carefully prescribed” the precise conditions
under which disclosure of Title III, Rule 6(e), and section 626 information would
be lawful, FBI NARA Memorandum at 2. This precise specification makes it
“unrealistic” to think that Congress would have intended to permit disclosure
outside of the conditions it prescribed, absent a clear indication of an intent to do
so. Id.; see Watergate NARA Opinion, 1 Op. O.L.C. at 218 (“The amount of
attention that was paid to the formulation of the exceptions would allow for an
inference that no exception was intended as to the Archives.”); see also Hinck v.
United States, 550 U.S. 501, 506 (2007) (“[I]n most contexts, a precisely drawn,
detailed statute pre-empts more general remedies.” (internal quotation marks
omitted)).
Section 6(a)(1) is arguably as specific as the withholding statutes with respect to
the lawful recipients of information: section 6(a)(1) grants access only to particular
identified individuals. However, the careful prescriptions of the conditions for
disclosure contained in the withholding statutes demonstrates that even in this
respect, they are more specific than section 6(a)(1). The withholding statutes specify
not only the lawful recipients of Title III, Rule 6(e), and section 626 information,
but also the circumstances in which those recipients may obtain information.
Title III, for example, authorizes disclosure to investigative or law enforcement
officers only “to the extent that such disclosure is appropriate to the proper
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performance of the official duties of the officer making or receiving the disclosure,”
18 U.S.C. § 2517(1); Rule 6(e) authorizes disclosure to an attorney for the
government only “for use in performing that attorney’s duty” to enforce federal
criminal law, Fed. R. Crim. P. 6(e)(3)(A)(i); and section 626 authorizes the FBI to
disclose covered information to other federal agencies only “as may be necessary
for the approval or conduct of a foreign counterintelligence investigation,”
15 U.S.C. § 1681u(f). By contrast, section 6(a)(1) authorizes disclosure to “the
Inspector General,” but the IG Act is silent as to how an inspector general may use
information he has obtained pursuant to section 6(a)(1), other than to set forth the
general duties and responsibilities of the office that implicitly constrain the use of
such information. See, e.g., 5 U.S.C. app. § 4; Burlington N. R.R. Co. v. Office of
Inspector Gen., R.R. Retirement Bd., 983 F.2d 631, 641 (5th Cir. 1993) (“[A]n
Inspector General’s investigatory powers generally [do not] extend to matters that
do not concern fraud, inefficiency, or waste within a federal agency.”). 18
Accordingly, the rule of relative specificity applies here, and reinforces the other
clear statement principle discussed above. Just as that principle requires a clear
statement before we may conclude that Congress abrogated the confidentiality of
Rule 6(e), Title III, or section 626 information, so the rule of relative specificity
requires a clear statement before we may conclude that the general right of access
granted by section 6(a)(1) takes precedence over the specific, carefully delineated
limits on disclosure Congress set forth in those statutes. 19 It is not surprising that
these rules are mutually reinforcing. Ultimately, both stem from the commonsense
notion that where Congress has legislated with great care on a particular subject—
whether by establishing strict limits on the disclosure of information it considers
highly sensitive, or by creating a specific and detailed statutory scheme—it is
unlikely to have displaced the limits it imposed through unclear or general language.
18
Even if the IG Act addressed the lawful recipients of information with the same degree of
specificity as Title III, Rule 6(e), and section 626, that fact alone would not render the rule of relative
specificity inapplicable. We have often applied the rule in comparable circumstances. See, e.g., National
Archives Access to Taxpayer Information, 21 Op. O.L.C. at 94–95 (concluding that a specific statute
regulating the disclosure of tax returns takes precedence over a general statute granting the Archivist of
the United States access to the records of any federal agency); GAO Access, 12 Op. O.L.C. at 182–83
(concluding that a “specific statute directly addressing one executive branch agency’s handling of trade
secret information” takes precedence over a “general statute addressed to [the Comptroller General’s
access to] all kinds of information in possession of the executive branch”).
19
Although the timing of the enactment of conflicting statutes can sometimes be relevant to their
interpretation, see infra pp. 65–66, that timing does not affect the applicability of the principles discussed
in the text to the statutes at issue here. This Office has thought a clear statement was necessary to permit
access both to information protected by “long-established polic[ies]” of confidentiality, Sells, 463 U.S.
at 424; Census Confidentiality at 8, and to information protected by statutes enacted “subsequent” to the
competing access provision, FBI NARA Memorandum at 2. Likewise, the Supreme Court has held that
“a more specific statute will be given precedence over a more general one, regardless of their temporal
sequence.” Busic v. United States, 446 U.S. 398, 406 (1980). The clear statement rules we have discussed
above thus apply equally to Rule 6(e) and Title III, which preceded section 6(a)(1), and to section 626,
which postdated it.
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As a result, the dispositive question in resolving the conflict between section 6(a)(1)
and these three withholding statutes is whether Congress clearly expressed an
intention in the IG Act to grant inspectors general access to information protected
by Rule 6(e), Title III, or section 626 notwithstanding the limits those statutes place
on disclosure.
B.
With these principles in mind, we now consider whether section 6(a)(1) contains
the kind of clear statement necessary to override the withholding statutes’
limitations on disclosure. OIG contends that Congress intended the IG Act to grant
it “full and prompt access to information obtained by [the Department] through the
use of” Title III, Rule 6, and section 626. OIG 2014 Memorandum at 9. In parti-
cular, OIG argues that section 6(a)(1) grants it “affirmative and explicit authority”
to obtain those materials, and that the IG Act’s other provisions, structure, and
purpose indicate that that right of access is not subject to the limits imposed by those
withholding statutes. Id.; see OIG Supplemental Memorandum at 11–15. OIG’s
arguments are substantial. We conclude, however, that the IG Act does not provide
the kind of clear indication of congressional intent necessary to override the specific,
carefully drawn limitations in Title III, Rule 6(e), and section 626.
To begin, the text of the IG Act does not contain the sort of language we have
previously found sufficient to constitute a clear statement that Congress intends to
override more specific statutory provisions that protect sensitive information. The
IG Act does not mention Title III or Rule 6(e), despite having been enacted after
these statutes. Cf. Title III Intelligence Community, 24 Op. O.L.C. at 272 (noting
that “[n]othing in the language of” the general disclosure provision of the National
Security Act “refers to Title III information,” despite having been added after
Title III); Census Confidentiality at 6, 8 (noting that section 215 of the Patriot Act
“contains no express and specific statement indicating an intention” to override the
“well-established confidentiality protections set forth in the Census Act,” and
“makes no reference to the census or the Census Act”); Rule 6(e) Intelligence
Community, 21 Op. O.L.C. at 165 (“Neither the text of section 104(a) [of the
National Security Act] nor its pertinent legislative history contains . . . an
affirmative expression of intent to override grand jury secrecy restrictions.”). Nor
does the IG Act contain general language addressing potential conflicts with other
statutory confidentiality provisions, such as a statement that the inspector general’s
right of access shall apply “notwithstanding any other law” or “notwithstanding any
statutory prohibition on disclosure”—language that might, at least in some
circumstances, provide a clearer indication that the general access language was
supposed to override more specific statutory protections of confidential
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information. 20 See, e.g., Brady Act Implementation Issues, 20 Op. O.L.C. 57, 62
(1996) (concluding that a Brady Act provision permitting the Attorney General to
obtain relevant information from any department or agency “[n]otwithstanding any
other law” permitted access to information otherwise subject to restrictions in the
Privacy Act); Census Confidentiality at 9 (noting that section 215 of the Patriot Act
“contains no language” like “notwithstanding any provision of law” (internal
quotation marks omitted)). 21 Thus, while section 6(a) establishes a general right of
access by inspectors general, it does not expressly address the relative strength of
that right compared to other statutory restrictions on disclosure that would by their
terms exclude access by inspectors general—let alone clearly resolve that the
general right of access overrides the conflicting statutory provisions.
According to OIG, the IG Act’s command that agencies provide inspectors
general with unfettered access to information is nonetheless clear. Section 6(a)(1),
OIG observes, authorizes each inspector general “to have access to all records”
available to his agency and within his investigative jurisdiction. OIG 2014
Memorandum at 8 (emphasis added). We recognize that the word “all,” read
literally, extends to every record available to an agency, whether protected by a
withholding statute or not. But the Supreme Court has noted that “circumstances
may counteract the effect of expansive modifiers” like “all” or “any,” Ali v. Fed.
Bureau of Prisons, 552 U.S. 214, 221 n.4 (2008), particularly in circumstances
where a clear statement rule applies. In Raygor v. Regents of University of
Minnesota, 534 U.S. 533 (2002), for example, the Court considered whether a
statute granting federal district courts jurisdiction to hear “all other claims” that are
part of a case or controversy over which a district court has original jurisdiction was
sufficiently clear to evince congressional intent to abrogate state sovereign
immunity. The Court concluded that, despite the facial breadth of the statute, it did
not confer jurisdiction on district courts to hear claims against states that did not
consent to be sued. “[E]ven though nothing in the statute expressly exclude[d] such
claims,” and the grant of jurisdiction was “facially broad” enough to cover them,
20
Even a grant of access that includes a “notwithstanding any other provision of law” clause might
not, in all circumstances, overcome a conflicting, detailed statutory scheme restricting the disclosure of
information. Cf. United States v. Novak, 476 F.3d 1041, 1046 (9th Cir. 2007) (“In examining specific
statutes, we have not . . . always accorded universal effect to the ‘notwithstanding’ language. Instead, we
have determined the reach of each such ‘notwithstanding’ clause by taking into account the whole of the
statutory context in which it appears.” (internal citations omitted)).
21
Statutes containing such language are not unusual. See, e.g., 18 U.S.C. § 922(t) note
(“Notwithstanding any other law, the Attorney General may secure directly from any department or agency
of the United States such information . . . as is necessary to enable the [NICS] to operate in accordance with
this section.”); 12 U.S.C. § 5226(a)(2)(C)(i) (“Notwithstanding any other provision of law . . . the
Comptroller General shall have access, upon request, to any information, data, schedules, books, accounts,
financial records, reports, files, electronic communications, or other papers.”); 15 U.S.C. § 78g(f)(2)
(“Notwithstanding any other provision of law . . . the Attorney General shall provide the Commission and
self-regulatory organizations designated by the Commission with access to all criminal history record
information.”).
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the Court found the statutory language “insufficient to constitute a clear statement
of an intent to abrogate state sovereign immunity.” Id. at 541–42; see also
Blatchford v. Native Vill. of Noatak & Circle Vill., 501 U.S. 775, 786 (1991)
(concluding that 28 U.S.C. § 1362, which establishes federal jurisdiction over “all
civil actions” that satisfy the amount in controversy requirement, lacks the “clear
legislative statement” necessary to override state sovereign immunity).
Even more directly relevant, this Office has concluded that broad, general terms
like “all” and “any” do not provide the clear statement of congressional intent
needed to override specific, detailed statutory limitations or prohibitions on the
disclosure of sensitive information about which Congress has expressed a special
concern for privacy. In our Rule 6(e) Intelligence Community opinion, for example,
we determined that a statute much like the IG Act, which granted the Director of
Central Intelligence “access to all intelligence related to national security,” did not
“clearly manifest an intent to reach grand jury information.” 21 Op. O.L.C. at 165
(emphasis added). Although we acknowledged that “the ‘intelligence’ covered by
the statute could reasonably be interpreted to encompass certain kinds of grand jury
information,” we thought that “[t]he most that may be said about [the statute’s] text
in this regard is that it is unclear on the point.” Id. at 165–66. We later concluded
that the same statute—despite the word “all”—did not authorize unrestricted
disclosure of Title III information to the Director of Central Intelligence. See
Title III Intelligence Community, 24 Op. O.L.C. at 272–73. And in our Census
Confidentiality opinion, we concluded that a section of the Patriot Act authorizing
the FBI to obtain “any tangible things . . . for an investigation to obtain foreign
intelligence information” was not sufficiently clear to overcome the presumption of
confidentiality for census information. Census Confidentiality at 5, 8 (emphasis
added); see also Confidential Treatment of Census Records, 40 Op. Att’y Gen. at
327–28 (concluding that a statute granting the Archivist of the United States the
“authority to make regulations for the arrangement, custody, use, and withdrawal of
material” requisitioned for deposit in the National Archives building, and repealing
“[a]ll Acts or parts” inconsistent with this authority, did not contain the “very clear
language” necessary to abrogate the statutory provisions governing confidential
treatment of census records (emphasis added)). Thus, the word “all,” on its own,
does not provide the clear statement necessary to reach Title III, Rule 6(e), and
section 626 information.
OIG further argues that Congress’s intent to grant it access to statutorily
protected information under section 6(a)(1) is made apparent by a negative
implication from sections 6(a)(3) and 6(b)(1) of the IG Act. Whereas section 6(a)(1)
grants inspectors general access to materials within the agencies they help oversee,
section 6(a)(3) of the Act authorizes them to “request . . . information or
assistance . . . from any Federal, State, or local governmental agency or unit
thereof.” 5 U.S.C. app. § 6(a)(3) (emphasis added). Section 6(b)(1) qualifies this
latter authorization by providing:
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Upon request of an Inspector General for information or assistance
under subsection (a)(3), the head of any Federal agency involved
shall, insofar as is practicable and not in contravention of any existing
statutory restriction or regulation of the Federal agency from which
the information is requested, furnish to such Inspector General, or to
an authorized designee, such information or assistance.
Id. § 6(b)(1) (emphasis added). Section 6(b)(1) thus makes explicit that the
obligation of another agency to respond to an inspector general’s request for
information under section 6(a)(3) is subject to, among other things, “existing
statutory restriction[s].” But neither section 6(b)(1) nor any other provision in
section 6 imposes a similarly express limitation on the right of access under
section 6(a)(1). OIG argues that this omission was intentional, and coupled with the
inclusion of the express limitation in section 6(b)(1), implies that Congress intended
access under section 6(a)(1) to be “automatic” and free of any “existing statutory
restriction[s].” OIG Supplemental Memorandum at 12–13.
OIG’s argument is “admittedly a plausible one,” Sells, 463 U.S. at 435, and in a
different interpretive context, it might prevail. But as we have discussed, before
concluding that a general access provision abrogates detailed, specific statutory
provisions that restrict disclosure of sensitive information, both this Office and the
courts have required a clear and express statement to that effect. And despite its
plausibility, the inference OIG would draw from section 6(b)(1) is simply that: an
inference. It is not a clear statement that plainly and unambiguously indicates that
Congress intended the general access provision in section 6(a)(1) to trump more
specific provisions that protect highly sensitive information. See, e.g., Fernandez-
Vargas v. Gonzalez, 548 U.S. 30, 41 (2006) (stating that a “negative inference” from
the absence of express language, found elsewhere in the same statute, that a
particular provision was intended to apply only prospectively would not constitute
a “clear statement” of intent to apply the provision retroactively).
Moreover, even if a negative inference could, in some circumstances, be
unequivocal enough to establish a clear manifestation of congressional intent, the
inference OIG invokes would not in our view satisfy that high standard. For one
thing, the inference “‘that the presence of a phrase in one provision and its absence
in another reveals Congress’s design . . . grows weaker with each difference in the
formulation of the provisions under inspection.’” Clay v. United States, 537 U.S.
522, 532 (2003) (quoting City of Columbus v. Ours Garage & Wrecker Serv., Inc.,
536 U.S. 424, 435–36 (2002)). And here, section 6(b)(1) differs from section 6(a)(1)
in at least two significant ways. First, section 6(b)(1) is structured as an adjunct to a
separate provision, section 6(a)(3), that allows an inspector general to “request”
particular items from an agency other than his own. Because section 6(a)(3)
establishes only an inspector general’s right to request materials from outside his
agency, Congress required an additional provision, section 6(b)(1), to specify the
scope of other agencies’ obligations to “furnish” the requested material to an
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inspector general. Section 6(a)(1), in contrast, is not part of a similar bifurcated
structure, but rather—by giving an inspector general a right of “access” to certain
materials—establishes both an inspector general’s right to receive and, by
implication, the agency’s obligation to provide relevant material. Thus, unlike in the
case of section 6(a)(3), Congress had no need to say anything in subsection (b)(1)
about the scope of an agency’s obligation to comply with an inspector general’s
attempt to obtain materials under section 6(a)(1). See Ours Garage, 536 U.S. at 434(concluding that, because of significant differences in the formulation of certain
related statutory provisions, any negative inference arising from the inclusion in one
provision of a phrase omitted from the other was insufficient to constitute a “clear
and manifest indication” of congressional intent).
Second, as the text of section 6(b)(1) makes clear, Congress chose to impose
several limitations on an inspector general’s right to obtain information from outside
his agency, including that outside agencies need only provide the requested
information “insofar as is practicable” and to the extent permitted by “existing . . .
regulation[s].” 5 U.S.C. app. § 6(b)(1). Those limitations, because they do not
themselves have a statutory basis, would not obviously have applied unless
Congress imposed them expressly. But having done so, Congress may have felt
compelled to add “existing statutory restriction[s]” to the list of limitations in order
to dispel any inference that it did not intend those restrictions to apply as well. In
contrast, Congress chose not to make an inspector general’s right of access under
section 6(a)(1) subject to any similar restrictions with a non-statutory source. It
therefore had no similar need to expressly refer to “existing statutory restriction[s]”
when drafting that provision. See Gomez-Perez v. Potter, 553 U.S. 474, 486–88
(2008) (declining to draw a negative inference from the omission of an express
prohibition on retaliation in one section of the Age Discrimination in Employment
Act and its inclusion in another, where the second section set out “a specific list of
forbidden employer practices,” and the inclusion of retaliation among them may
have been necessary to “dispel any . . . inference” that “Congress did not want to
reach retaliation”).
OIG’s inference is further clouded by the text of section 6(b)(2) of the IG Act,
which provides that an inspector general shall report to Congress if “information or
assistance requested under subsection (a)(1) or (a)(3) is, in the judgment of [the]
Inspector General, unreasonably refused or not provided.” 5 U.S.C. app. § 6(b)(2)
(emphasis added). This subsection suggests that it is possible to “reasonably” refuse
to grant an inspector general access to materials under subsection (a)(1). And if
access can “reasonably” be refused under subsection (a)(1), then that provision
cannot provide the unfettered and absolute right to information asserted by OIG. To
be sure, it is also possible to read subsection (b)(2) to mean that any information
refused under subsection (a)(1) is necessarily refused “unreasonably,” given the
broad right of access provided by that subsection. But subsection (b)(2) is not clear
on this point, and it can be read to suggest that subsection (a)(1) has an implicit
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exception, consistent with the principles of statutory interpretation discussed above,
for specific statutory schemes protecting highly sensitive information.
Read together, then, we do not believe the various provisions of section 6 contain
the kind of clear statement necessary to overcome the carefully drawn limitations
on disclosure of highly sensitive information found in Title III, Rule 6(e), and
section 626. And to the extent that those provisions create any ambiguity, the IG
Act’s legislative history affirmatively suggests that Congress intended to subject
inspector general access under section 6(a)(1) to applicable statutory restrictions. In
particular, the Senate Report accompanying the IG Act flatly states that section 6(a)
is “a broad mandate permitting the Inspector . . . General the access he needs to do
an effective job subject, of course, to the provisions of other statutes, such as the
Privacy Act.” S. Rep. No. 95-1071, at 33–34 (1978) (emphasis added). In addition,
a version of the bill initially passed by the House of Representatives would have
expressly granted inspectors general access to records notwithstanding certain
limitations of the Privacy Act (a clarification that would, incidentally, have been
superfluous had the House believed that section 6(a)(1) already exempted inspectors
general from all statutory limits on disclosure). See H.R. 8588, 95th Cong., § 5(b)(3)
(as passed by the House of Representatives, April 18, 1978). 22 The Senate removed
that provision from the final version of the bill because, the Senate Committee
Report explained, the House’s language would have granted inspectors general “a
power that no other official of the executive branch has—the authority to require
the transfer of personal information from any agency . . . without regard for the
protections of the Privacy Act.” S. Rep. No. 95-1071, at 13. Removing the
provision, the Report stated, “does not mean that an Inspector . . . General will be
unable to obtain needed information to perform his responsibilities. It simply means
that the information must be obtained in conformity with the exemptions and
procedures of the [Privacy Act].” Id. (emphasis added). The Report explained that
this would not be difficult, because “all information within the agency would be
available to the Inspector . . . General, based on the ‘intra-agency’ exemption”
included in the Privacy Act itself. Id. (emphasis added). This language strongly
suggests that, at least in the Committee’s view, inspectors general would remain
subject to other statutory requirements, including statutory restrictions on use and
disclosure, when seeking access under section 6(a)(1), and further undermines the
22
This draft provided: “In the event any record or other information requested by the Inspector
General under subsection (a)(1) or (a)(3) is not considered to be available under the provisions of section
552a(b) (1), (3), or (7) of title 5, United States Code, such record or information shall be available to the
Inspector General in the same manner and to the same extent it would be available to the Comptroller
General.” H.R. 8588, § 5(b)(3). The “subsection[s] (a)(1) [and] (a)(3)” referred to in this provision of the
House bill are identical to those currently found at subsections 6(a)(1) and (a)(3) of the IG Act as enacted.
Compare id. § 5(a)(1), (3) with 5 U.S.C. app. § 6(a)(1), (3). Title 5, section 552a is the Privacy Act,
which (then as now) expressly exempted the Comptroller General from the Privacy Act’s general
prohibition on the disclosure of covered information. See 5 U.S.C. § 552a(b)(10).
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notion that Congress intended to grant access to Rule 6(e), Title III, and section 626
information without regard to the limitations set forth in those statutes. 23
OIG also invokes a later-enacted IG Act provision specific to the Department—
current section 8E—to support its reading of section 6(a)(1). As we have noted, this
section, among other things, authorizes the Attorney General to withhold records from
OIG, or otherwise direct and supervise an OIG investigation, if she determines that
doing so would be “necessary to prevent the disclosure of” certain sensitive
information—such as “sensitive information concerning . . . ongoing civil or criminal
investigations” or “the identity of confidential sources”—“or to prevent the significant
impairment to the national interests of the United States.” 5 U.S.C. app. § 8E(a)(1),
(2). It further provides that if the Attorney General exercises such authority, she must
“notify the Inspector General in writing stating the reasons for such exercise,” and that
OIG must transmit a copy of that notice to appropriate committees in Congress. Id.
§ 8E(a)(3). OIG argues that the “exacting procedures” imposed by this provision, as
well as its historically “infrequent use,” confirm that section 8E represents an
“extraordinary departure from the baseline rule, established by section 6, that the
Inspectors General enjoy access to documents and materials,” and demonstrates that
only in the specific circumstances set out in section 8E may the Attorney General
withhold requested records. OIG Supplemental Memorandum at 18; see OIG 2014
Memorandum at 8–9.
We disagree. For one thing, section 6(a)(1) was enacted in 1978 as part of the
original IG Act, while section 8E, like the special provisions applicable to other
departments and agencies, was added to the statute years later. 24 The negative
inference that OIG seeks to draw from the inclusion of certain heightened procedures
in section 8E is therefore attenuated. See Gomez-Perez, 553 U.S. at 486 (“‘[N]egative
23
OIG responds to this argument by contending that “the phrase ‘subject . . . to’” in the Senate Report
“does not necessarily mean that [an inspector general’s] right of access to documents and materials is
restricted by general statutory or regulatory limitations on the disclosure of those materials; it is just as
plausible to read ‘subject . . . to’ to mean that, when using the materials they access, the IGs are not
exempt from any statutory and regulatory limitations on disclosure.” OIG Supplemental Memorandum
at 15. But the quoted passage from the Senate Report is not addressed to an inspector general’s use of
information; rather, it specifically addresses access to information, and is contained in a section of the
Senate Report discussing the right of access provided by section 6(a). See S. Rep. No. 95-1071, at 33–
34. Moreover, the Report separately makes the same point when discussing limitations on disclosure.
See id. at 32 (“[T]he Inspector . . . General must adhere to statutes such as 26 U.S.C. § 6013 [sic], dealing
with tax returns, or Federal Rule of Criminal Procedure 6(e), dealing with grand jury information, which
prohibit disclosure even to Congress.”). In addition, OIG’s argument does not address the Report’s multi-
page discussion of the Privacy Act exception and the effect of its omission from the bill that ultimately
became the IG Act.
24
In addition to section 8E, which applies to the Department, sections 8 through 8I of the IG Act
contain special provisions relating to the Department of Defense (section 8), the Agency for International
Development (section 8A), the Nuclear Regulatory Commission (section 8B), the Federal Deposit
Insurance Corporation (section 8C), the Department of the Treasury (section 8D), the Corporation for
National and Community Service (section 8F), certain federal entities (section 8G), Inspectors General
of the Intelligence Community (section 8H), and the Department of Homeland Security (section 8I). See
5 U.S.C. app. §§ 8–8I.
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Opinions of the Office of Legal Counsel in Volume 39
implications raised by disparate provisions are strongest’ in those instances in which
the relevant statutory provisions were ‘considered simultaneously when the language
raising the implication was inserted.’” (alteration in original) (quoting Lindh v.
Murphy, 521 U.S. 320, 330 (1997))). In any event, that inference is unconvincing on
its own terms. Section 8E does not authorize the Attorney General to withhold only
those records protected from disclosure by statute. Indeed, many of the records that
the Attorney General may withhold under that section are not entitled to protection
under any statute. For example, “information concerning . . . ongoing civil or criminal
investigations” or “the identity of confidential sources,” 5 U.S.C. app. § 8E(a)(1)(A),
(C), would be protected by Rule 6(e) only if the investigation were criminal and had
reached the grand jury stage. Conversely, much information that is protected by statute
may not be subject to withholding under section 8E, such as Title III information that
is not pertinent to an ongoing civil or criminal investigation or any other sensitive
matter described in that section. Section 8E thus does not merely duplicate the
protections afforded by Title III, Rule 6(e), or section 626; it grants the Attorney
General authority over disclosures that is in some respects broader, and in some
respects narrower, than the requirements of those provisions, and thus serves a distinct
purpose.
Finally, in addition to these arguments based on the Act’s text and structure, OIG
appeals to the general purposes of the IG Act. This statute was intended, OIG
explains, to grant inspectors general a broad right of access to agency materials,
including records containing sensitive information, so that they could conduct
meaningful reviews of programs within their jurisdiction. See OIG Supplemental
Memorandum at 12, 14–15. OIG points out, for instance, that the Act’s Senate
Report characterizes section 6(a) as a “broad mandate” and describes such access as
“obviously crucial.” Id. at 16 (quoting S. Rep. No. 95-1071, at 33–34); see also,
e.g., H.R. Rep. No. 95-584, at 14 (1977) (stating that the access provision “makes
clear that each Inspector General is to have access to all records, documents, et
cetera, available to his or her agency which relate to programs and operations with
respect to which the office has responsibilities”). OIG argues that this goal would
be undermined by a construction of the statute that prohibited it from obtaining
materials protected by Title III, Rule 6(e), and section 626.
We agree that Congress intended to grant each inspector general a broad right of
access, and we do not doubt that such a right of access is crucial to enabling OIG to
fulfill its statutory mission. But this kind of general congressional intent does not
resolve the specific question at issue here: whether Congress clearly expressed an
intention that the inspector general’s “broad mandate” in section 6(a)(1) supersede the
limits on disclosure contained in Title III, Rule 6(e), and section 626. As we have
noted, the IG Act’s text contains no such expression of intent, and the Act’s legislative
history affirmatively indicates that Congress did not intend to grant that kind of
unlimited access to inspectors general. Moreover, in the same Report in which the
Senate Committee described the “broad mandate” found in section 6(a)(1)—indeed,
in the same sentence—it also stated that an inspector general’s access would be
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Department of Justice Inspector General’s Access to Information
“subject, of course, to the provisions of other statutes, such as the Privacy Act.”
S. Rep. No. 95-1071, at 33–34; see also id. at 13–14. 25 It thus appears Congress did
not believe (let alone clearly indicate) that the broad right of access it was giving each
inspector general was inconsistent with requiring compliance with specific statutory
regimes that protect highly sensitive information.
In sum, neither the text of the IG Act, nor its legislative history, nor its general
purpose offers a clear indication that Congress intended to override the separate
statutory confidentiality requirements applicable to Title III, Rule 6(e), and
section 626 information. As a result, under both the principle requiring that a statute
contain a clear statement in order to abrogate protections of highly sensitive
information, and the rule of relative specificity, OIG remains subject to the
limitations imposed by Title III, Rule 6(e), and section 626. The Department
therefore may not disclose information covered by those statutes except in
accordance with their provisions. 26
IV.
We have also considered whether a recent appropriations rider grants OIG access
to information it could otherwise not obtain under Title III, Rule 6(e), or
section 626. Section 218 of the Consolidated and Further Continuing
Appropriations Act, 2015, Pub. L. No. 113-235, 128 Stat. 2130, 2200 (Dec. 16,
2014), provides:
No funds provided in this Act shall be used to deny the Inspector
General of the Department of Justice timely access to all records,
documents, and other materials in the custody or possession of the
Department or to prevent or impede the Inspector General’s access to
such records, documents and other materials, unless in accordance
with an express limitation of section 6(a) of the Inspector General Act,
25
The full passage reads:
Access to all relevant documents available to the applicable [agency] relating to
programs and operations for which the Inspector and Auditor General has
responsibilities is obviously crucial. The committee intends this subsection to be a broad
mandate permitting the Inspector and Auditor General the access he needs to do an
effective job, subject, of course, to the provisions of other statutes, such as the Privacy
Act.
S. Rep. No. 95-1071, at 33–34.
26
We express no view about whether inspectors general have a right to obtain information protected
from disclosure by provisions other than Title III, Rule 6(e), and section 626. Resolution of that issue
would depend on whether those other statutes protected highly sensitive information about which
Congress has “expressed a strong congressional intent to maintain very strict privacy,” FBI NARA
Memorandum at 1–2, whether those statutes regulated the treatment of covered information with greater
specificity than the IG Act, and whether the IG Act or some other relevant statute contained a clear
statement authorizing disclosure of the information to inspectors general.
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as amended, consistent with the plain language of the Inspector
General Act, as amended. The Inspector General of the Department of
Justice shall report to the Committees on Appropriations within five
calendar days any failures to comply with this requirement.
This rider permits the Department to expend Fiscal Year 2015 funds to withhold
records from OIG only where doing so would be “in accordance with an express
limitation of section 6(a) of” the IG Act, “consistent with the plain language of” that
Act. It also imposes two other legal requirements for the remainder of Fiscal Year
2015 that are not already expressly set forth in the IG Act. First, it bars the
Department from using appropriated funds to deny—and so effectively obligates
the Department to grant—OIG access to records in a “timely” manner, a matter on
which the text of the IG Act is silent. And, second, it imposes on OIG an obligation
to report failures to comply with these requirements to the congressional
appropriations committees within five calendar days. Obligation or expenditure of
funds contrary to the terms of the rider would violate the Anti-Deficiency Act,
31 U.S.C. §§ 1341 et seq., a statute that subjects federal officials obligating or
expending funds in advance or in excess of appropriations to administrative
penalties, and to criminal penalties in the case of knowing and willful violations, id.§§ 1341(a), 1349(a), 1350.
OIG contends that, for two independent reasons, section 218 affirms its right to
obtain Title III, Rule 6(e), and section 626 information notwithstanding the disclosure
limitations in those statutes. First, according to OIG, section 218 reflects a
congressional understanding that section 6(a)(1) of the IG Act requires the
Department to disclose all relevant materials to OIG. “The passage of [section 218],”
OIG argues, “serves as a reaffirmation of clear congressional intent, originally
manifested in section 6(a) . . . that the OIG is entitled to access to ‘all records, reports,
audits, reviews, documents, papers, recommendations, or other material available to’
the Department.” OIG 2015 E-mail; see OIG 2014 Memorandum at 4. Second,
regardless of the correct interpretation of section 6(a)(1), OIG argues that section 218
independently and “unequivocal[ly]” requires the Department to disclose to OIG all
information it requests, unless the Department withholds that information pursuant to
a provision, such as section 8E, that expressly limits the right of access granted by the
IG Act. OIG 2015 E-mail; see The Department of Justice Office of the Inspector
General’s Fiscal Year 2016 Budget Request: Hearing Before the Subcomm. on
Commerce, Justice, Science and Related Agencies of the H. Comm. on Appro-
priations, 114th Cong. 9–10 (2015) (statement of Michael E. Horowitz, Inspector
General, Dep’t of Justice). Because neither Title III nor Rule 6(e) nor section 626
expressly addresses disclosures under the IG Act, the rider (in OIG’s view) prohibits
the Department from expending Fiscal Year 2015 appropriated funds to withhold
Title III, Rule 6(e), or section 626 materials from OIG. See OIG 2015 E-mail.
Although OIG’s arguments are again substantial, we ultimately disagree that
section 218 grants OIG access to information otherwise protected by Title III,
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Department of Justice Inspector General’s Access to Information
Rule 6(e), and section 626. With respect to OIG’s first argument, we have already
concluded, for the reasons set forth in Part III above, that the IG Act lacks the clear
statement of congressional intent necessary to override the detailed and specific
statutory disclosure prohibitions set forth in Title III, Rule 6(e), and section 626. In
order to alter this conclusion about the IG Act’s meaning, section 218 would need
to contain a clear statement indicating that section 6(a)(1) should be interpreted to
override those statutory limitations on disclosure. But it is not clear that section 218
contains any instruction about how the IG Act should be interpreted: it does not
expressly declare the Act’s meaning, amend the Act to clarify its terms, or depend
for its effectiveness on a particular interpretation of the IG Act. See Almendarez-
Torres v. United States, 523 U.S. 224, 237 (1998) (concluding that a later-enacted
law that lacks these features, or any other “forward looking legislative mandate,
guidance, or direct suggestion about how [to] interpret [an] earlier provision[],” is
“beside the point” in interpreting that provision). It is possible that Congress
intended—by providing that the Department may not expend Fiscal Year 2015
funds to withhold information from OIG “unless in accordance with an express
limitation of section 6(a) of the [IG Act], consistent with the plain language of the
[Act]”—to convey its understanding of what the “plain language” of the IG Act
means. But this inference, itself far from clear, would merely raise the question of
what qualifies as “an express limitation of section 6(a),” a phrase that is in turn
subject to various interpretations. See infra pp. 63–65. Given these multiple layers
of uncertainty, section 218 does not provide a clear statement that the IG Act should
be interpreted to override the limitations on disclosure contained in Title III,
Rule 6(e), and section 626.
We also disagree that, considered on its own, the rider contains a clear statement
of Congress’s intent to override those limitations on disclosure. As noted above,
section 218 permits Department officials to deny materials to OIG “in accordance
with an express limitation of section 6(a) of the Inspector General Act, as amended,
consistent with the plain language of the [Act], as amended.” In our view, there are
at least three conceivable constructions of the phrase “express limitation of
section 6(a) of the Inspector General Act.” First, it could be interpreted to
encompass only those limitations on disclosure that either appear in section 6(a)
itself or that expressly refer to that section. Second, it could be interpreted to
encompass only those limitations on disclosure that are specifically directed at
disclosures to OIG under the IG Act, whether or not they explicitly refer to
section 6(a). Third, it could be interpreted to encompass all “express” limitations on
disclosure that, when considered in conjunction with section 6(a), are properly
deemed to function as “limitation[s] of section 6(a).” For the reasons discussed
below, we believe that the first interpretation is not plausible, but that the second
and third interpretations are. And because the third interpretation would allow the
Department to continue to withhold materials from OIG to the extent required under
the terms of Title III, Rule 6(e), and section 626, section 218 does not in our view
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constitute the sort of clear statement of congressional intent necessary to override
those nondisclosure provisions.
Under the first potential interpretation of the rider, Department officials would
be prohibited from denying OIG access to documents and other materials except
pursuant to a “limitation of section 6(a)” that “express[ly]” referred to (or was
contained in) section 6(a) itself. This is a natural reading of section 218’s text.
However, if this reading were correct, section 218 would prohibit Department
officials from withholding records from OIG not only under Title III, Rule 6(e), and
section 626, but also under section 8E of the IG Act: while section 8E plainly
authorizes the withholding of certain records otherwise accessible under
section 6(a), it does not refer explicitly to section 6(a). Section 218 does not
expressly state that it was intended to partially repeal section 8E of the IG Act, and
in our view, it is implausible to construe it as having done so implicitly. See infra
pp. 65–66 (discussing strong presumption against implied repeals in appropriations
acts). Moreover, such a reading would be inconsistent, rather than “consistent,” with
the “plain language of” other parts of the IG Act, and thus would fail to make sense
of section 218 as a whole. See, e.g., Food & Drug Admin. v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 133 (2000) (“A court must . . . interpret the statute as
a symmetrical and coherent regulatory scheme and fit, if possible, all parts into an
harmonious whole.” (internal citations and quotation marks omitted)). It is thus
unsurprising that OIG does not advance this reading. See OIG 2015 E-mail (stating
that section 8E is an “express limitation” within the meaning of section 218).
Under the second potential interpretation, an “express limitation of section 6(a)”
would be one that expressly referred to disclosures to OIG, although not specifically
to section 6(a). On this reading, Department officials could withhold information
under section 8E, which expressly addresses disclosures to OIG. See 5 U.S.C. app.
§ 8E. But they would be foreclosed from withholding information from OIG
pursuant to Title III, Rule 6(e), and section 626, because these provisions contain
no express reference to OIG. This is not the most natural reading of section 218’s
text: the phrase “in accordance with an express limitation of section 6(a) of the [IG
Act]” is not easily read to mean “in accordance with a limitation that expressly
addresses disclosures to OIG under the IG Act.” Nonetheless, given that section 6(a)
is the principal provision in the IG Act that governs disclosures to OIG, we believe
this reading is permissible. Further, while the Explanatory Statement and Senate
Report accompanying section 218 do not specifically endorse this interpretation, it
arguably gains plausibility from the fact that, as OIG observes, the Department’s
Inspector General testified before the relevant Senate appropriations subcommittee
several months before the rider was enacted, objecting to the Department’s failure
to grant OIG direct access to materials protected by Title III, Rule 6(e), and
section 626. See The Department of Justice’s Fiscal Year 2015 Budget Request:
Hearing Before the Subcomm. on Commerce, Justice, Science and Related Agencies
of the S. Comm. on Appropriations, 113th Cong. 7–8 (Apr. 3, 2014) (statement of
Michael E. Horowitz, Inspector General, Dep’t of Justice). But see Regan v. Wald,
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Department of Justice Inspector General’s Access to Information
468 U.S. 222, 237 (1984) (expressing “grave doubts” about the interpretive value
of “[o]ral testimony of witnesses and individual Congressmen, unless very precisely
directed to the intended meaning of particular words in a statute”).
Under the third potential interpretation of the rider, an “express limitation of
section 6(a)” would include any explicit statutory nondisclosure provision that,
properly construed, operated to prevent disclosure of material that OIG could
otherwise obtain under section 6(a). This reading of section 218 would permit
withholding not only pursuant to section 8E, but also pursuant to Title III, Rule 6(e),
and section 626. The reading is reasonably grounded in statutory text. Statutes like
Title III, Rule 6(e), and section 626 can be considered “limitations of section 6(a)”
in that they supersede section 6(a) in situations where both section 6(a) and one of
those statutes would apply. See supra Part III.B. They can be considered “express”
limitations, in that they explicitly contemplate, in statutory text, nondisclosure in
the circumstances they address. And for the reasons we have explained above,
reading these statutory provisions to limit disclosures under section 6(a)(1) is
“consistent with the plain language of” the IG Act, as construed using standard tools
of statutory interpretation. See supra Part III.B.
In our view, although both the second and third interpretations of section 218 are
plausible, the third is more appropriate in light of the relevant principles of statutory
interpretation. As discussed in Part III above, in order to override the specific
withholding provisions in Title III, Rule 6(e), and section 626, section 218 would
need to contain a clear congressional statement that it was intended to have that
effect. OIG appears to contend that the phrase “unless in accordance with an express
limitation of section 6(a) of the [IG Act], consistent with the plain language of the
[Act],” clearly means that all materials must be disclosed to OIG absent express
language establishing that the materials need not be turned over. But as we have
discussed, this interpretation requires reading unstated limitations into the rider’s
text, since (as OIG concedes) section 218’s reference to an “express limitation of
section 6(a)” encompasses section 8E, a limitation that does not expressly refer to
section 6(a). Moreover, as was also noted above, this phrase may plausibly be read
to permit Department officials to withhold Title III, Rule 6(e), and section 626
information if OIG does not qualify to receive it under one of those statutes’
exemptions. Because the phrase is susceptible to alternative interpretations, one of
which would permit withholding under Title III, Rule 6(e), and section 626, it does
not constitute a sufficiently clear statement to override the limitations on disclosure
imposed by those statutes. See supra Part III.
Furthermore, it is significant that section 218 appears in an appropriations act
that post-dates the provisions in Title III, Rule 6(e), and section 626 of FCRA. The
Supreme Court has long held that a later statute will not be read to repeal an earlier
one, even in part, unless Congress’s intent to repeal the earlier statute with the later
one is “clear and manifest.” Nat’l Ass’n of Home Builders v. Defenders of Wildlife,
551 U.S. 644, 662–63 (2007) (internal quotation marks omitted); see Tenn. Valley
Auth. v. Hill, 437 U.S. 153, 189 (1978) (refusing to read an appropriations act as
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Opinions of the Office of Legal Counsel in Volume 39
overriding the Endangered Species Act “insofar as it applies to the Tellico Project”
absent “‘clear and manifest’” evidence); Posadas v. Nat'l City Bank of New York,
296 U.S. 497, 501, 504 (1936) (declining to read a statute as overriding the Federal
Reserve Act of 1913 “in so far as the Philippine Islands are concerned” unless such
a reading was a “necessary” implication). This principle applies “with even greater
force when the claimed repeal rests solely on an Appropriations Act,” because
“legislators are entitled to operate under the assumption that the funds will be
devoted to purposes which are lawful and not for any purpose forbidden,” and
because Congress’s own rules “expressly prohibit[]” substantive changes to existing
law in appropriations bills. Hill, 437 U.S. at 190–91 (emphasis in original); see
Rules of the House of Representatives, 114th Cong., R. XXI(2)(b) (2011) (“A
provision changing existing law may not be reported in a general appropriation
bill . . . .”). Accordingly, there is a “very strong presumption” that appropriations
measures do not “amend substantive law,” a presumption that may be overcome
only by “unambiguous[]” evidence to the contrary. Calloway v. Dist. of Columbia,
216 F.3d 1, 9 (D.C. Cir. 2000).
We do not believe this presumption is overcome with respect to section 218. The
rider’s text does not mention Title III, Rule 6(e), or section 626, nor does it state
that the provision is intended to amend existing statutes in any way. Cf. Am. Fed’n
of Gov’t Emp., AFL-CIO v. Campbell, 659 F.2d 157, 161 (D.C. Cir. 1980) (finding
implied repeal where an appropriations act made an “express reference to the earlier
statute”). As far as we are aware, the only statements in the legislative history
concerning the rider explain that it “is designed to improve OIG access to
Department documents and information,” 160 Cong. Rec. H9345 (daily ed. Dec. 11,
2014) (explanatory statement submitted by Rep. Rogers), and that it “requires the
Department to provide documents to the Inspector General that are necessary as part
of audits and investigations,” S. Rep. No. 113-181, at 103 (2014). But both these
goals would be advanced by all the readings we have discussed, including the
reading under which section 218 does not implicitly repeal Title III, Rule 6(e), and
section 626. Cf. Nat’l Treasury Emps. Union v. Devine, 733 F.2d 114, 120 (D.C.
Cir. 1984) (finding implied repeal of personnel regulations where “Congress
expressly stated [in the legislative history] that it wished to prevent the effectuation”
of the policies set forth in those regulations). Although interpreting section 218 to
permit the Department to withhold materials under the provisions of Title III,
Rule 6(e), and section 626 would not expand the scope of records available to OIG,
it would help ensure that the Department complied with the terms of the IG Act by
requiring it to grant OIG access in a “timely” manner; by obligating OIG to promptly
report incidents of noncompliance to the appropriations committees; and by adding
the possibility of Anti-Deficiency Act consequences for failure to comply. On this
interpretation, the purpose of section 218 would be to reaffirm and reinforce the
existing disclosure requirements in the IG Act.
We acknowledge that OIG’s broader reading of the rider is also plausible, and
consonant with events surrounding its enactment. But the presumption against
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Department of Justice Inspector General’s Access to Information
implied repeals requires not just that a reading constituting an implied repeal be
more natural, or that it draw support from comments in the legislative record, but
that it be “unambiguous[],” Calloway, 216 F.3d at 9; “clear and manifest,” Nat’l
Ass’n of Home Builders, 551 U.S. at 662 (internal quotation marks omitted); or
“necessary,” Posadas, 296 U.S. at 504. As we have explained, because section 218
can also reasonably be read to permit the Department to continue to abide by the
“express limitations” on disclosure in Title III, Rule 6(e), and section 626, OIG’s
interpretation is not compelled by the text; hence, the rider does not offer
“unambiguous” evidence that Congress intended to partially repeal existing
statutory prohibitions on disclosure. Calloway, 216 F.3d at 9. In light of the “very
strong” presumption against implied repeals in appropriations acts, id., and the other
interpretive principles we have identified, we believe section 218 is best read to
permit adherence to the disclosure restrictions in Title III, Rule 6(e), and
section 626.
V.
For the foregoing reasons, we conclude that Title III, Rule 6(e), and section 626
permit the Department to disclose certain statutorily protected information to OIG
in certain circumstances. We further conclude that to the extent those statutes
prohibit disclosure of such information, neither the IG Act nor section 218 permits
the Department to disclose it.
KARL R. THOMPSON
Principal Deputy Assistant Attorney General
Office of Legal Counsel
67