Census Confidentiality and the PATRIOT Act

Census Confidentiality and the PATRIOT Act
The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 does not require the Secretary of Commerce to disclose census
information to federal law enforcement or national security officers where such disclosure would
otherwise be prohibited by the Census Act.
January 4, 2010
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
DEPARTMENT OF COMMERCE
You have asked whether the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub.
L. No. 107-56, 115 Stat. 272 (“PATRIOT Act”), as amended, may require the
Secretary of Commerce to disclose census information to federal law enforcement
or national security officers where such disclosure would otherwise be prohibited
by the Census Act, 13 U.S.C. §§ 8, 9, 214 (2006). We have identified no provi-
sions of the PATRIOT Act that would compel the Secretary to disclose such
protected information.1
I.
To help promote the public cooperation on which an accurate census largely
depends, federal census statutes have long provided assurances of confidentiality
to respondents. See generally Baldrige v. Shapiro, 455 U.S. 345, 354, 356–59
(1982). This Office has described the current Census Act confidentiality provi-
sions as “the most recent codification of a statutory confidentiality requirement
that dates back more than a century and that bars the disclosure of covered census
information by census officials.” Relationship Between Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 and Statutory Requirement for
Confidentiality of Census Information, 2 Op. O.L.C. Supp. __, at *1 (May 18,
1999) (“IIRIRA Opinion”), available at http://www.usdoj.gov/olc/opinions.htm.
The Census Act provides:
Neither the Secretary [of Commerce], nor any other officer or em-
ployee of the Department of Commerce or bureau or agency thereof,
1
We solicited views from the Federal Bureau of Investigation (“FBI”) and the Criminal, National
Security, and Civil Rights Divisions of the Department of Justice. The Criminal Division, upon review,
offered no views. The FBI and the Civil Rights Division concurred with the Department of Commerce
in the view that no provisions of the PATRIOT Act override the Census Act’s protections for covered
census information possessed by the Commerce Department. The National Security Division disagreed,
contending that section 215 of the PATRIOT Act, as amended, may allow for a court order to compel
the Secretary to disclose furnished census information. We address this provision and the National
Security Division’s views in greater detail below.
1
Opinions of the Office of Legal Counsel in Volume 34
or local government census liaison, may, except as provided in sec-
tion 8 or 16 or chapter 10 of this title or section 210 of the Depart-
ments of Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act, 1998 or section 2(f) of the Census of
Agriculture Act of 1997—
(1) use the information furnished under the provisions of this title
[the Census Act] for any purpose other than the statistical purpos-
es for which it is supplied; or
(2) make any publication whereby the data furnished by any par-
ticular establishment or individual under this title can be identi-
fied; or
(3) permit anyone other than the sworn officers and employees of
the Department or bureau or agency thereof to examine the indi-
vidual reports.
13 U.S.C. § 9(a).
The cross-referenced statutes in section 9(a) presently provide exceptions only
for disclosure of transcripts or reports containing information furnished by a
respondent when requested by that respondent (or his or her heir, successor, or
authorized agent), see 13 U.S.C. § 8(a); certain “tabulations and other statistical
materials” that the Secretary may produce for private parties or government
agencies, provided that the disclosed materials do not reveal “the information
reported by, or on behalf of, any particular respondent,” id. § 8(b); certain address
information that may be disclosed to local government census liaisons under
section 16 of the Census Act, id. § 16; certain business data and information on
business enterprises that may be shared with the Bureau of Economic Analysis and
the Bureau of Labor Statistics under sections 401 and 402 of the Census Act, id.
§§ 401, 402; certain disclosures to the Census Monitoring Board permitted by
section 210 of the Departments of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriations Act, 1998, Pub. L. No. 105-119, 111 Stat. 2471,
2487 (1997); and certain disclosures to the Department of Agriculture permitted
by the Census of Agriculture Act of 1997, Pub. L. No. 105-113, §§ 2(f), 4(a)(1),
111 Stat. 2274–76, for the purpose of facilitating the agriculture census. In
addition, section 9(b) of the Census Act exempts certain information relating to
the census of governments from section 9(a)’s confidentiality protections, see 13
U.S.C. § 9(b), and certain other provisions outside the Census Act expressly
address the confidentiality of covered census information under section 9. See,
e.g., 42 U.S.C. § 11608 (2006) (establishing procedures with respect to infor-
mation protected by section 9 for purposes of implementing an international
convention); 42 U.S.C. § 6274 (2006) (specifically permitting disclosure of certain
information “without regard to” section 9); 44 U.S.C. § 2108(b) (2006) (regulating
2
Census Confidentiality and the PATRIOT Act
release of certain historic census records in the custody of the Archivist of the
United States).
Reinforcing the confidentiality protections of section 9, section 8(c) of the
Census Act provides that “[i]n no case shall information furnished under this
section”—which, as noted, authorizes the Secretary to furnish statistical tabula-
tions of census data that “do not disclose the information reported by, or on behalf
of, any particular respondent,” as well as census transcripts and reports when
requested by the respondent (or the respondent’s heir, successor, or authorized
agent)—“be used to the detriment of any respondent or other person to whom such
information relates, except in the prosecution of alleged violations of this title.” 13
U.S.C. § 8(c); see also 15 C.F.R. § 80.5 (2009) (noting this statutory prohibition).
Under section 214 of the Census Act, violations of section 9 by any census
employee, staff member, or local liaison are subject to criminal punishment. See
13 U.S.C. § 214.
Enacted into law after the September 11, 2001 attacks, the PATRIOT Act made
extensive changes to existing statutes governing investigations related to terrorism,
intelligence, and national security. Although some PATRIOT Act provisions were
subject to a statutory sunset, Congress reauthorized provisions of the original
PATRIOT Act, with amendments, in the USA PATRIOT Improvement and
Reauthorization Act of 2005, Pub. L. No. 109-177, 120 Stat. 192 (“Reauthoriza-
tion Act”). The PATRIOT Act, as amended, authorized a number of new or
modified forms of surveillance, information-gathering, and information-sharing
for federal law enforcement and national security officers.2
2
You identified for our review PATRIOT Act provisions establishing the following surveillance
and information-gathering powers for certain federal officers: authority to obtain so-called “roving”
wiretaps under foreign intelligence surveillance provisions, 50 U.S.C. § 1805(c)(2)(B) (2006) (contain-
ing language originating in PATRIOT Act § 206); authority to conduct surveillance of certain agents of
foreign powers for longer periods than previously authorized, 50 U.S.C.A. § 1805(d) (West Supp.
2009) (containing language originating in PATRIOT Act § 207); authority for certain warrant-based
seizures of voicemail messages, 18 U.S.C. §§ 2510(14), 2703(a)–(b) (including provisions originating
in PATRIOT Act § 209); authority to seek court orders for production of “tangible things” relevant to
certain terrorism and intelligence investigations, 50 U.S.C.A. § 1861 (West 2003 & Supp. 2009)
(including provisions originating in PATRIOT Act § 215); revised standards for obtaining certain
electronic surveillance warrants, 50 U.S.C.A. §§ 1804(a)(6)(B), 1823(a)(6)(B) (West 2003 & Supp.
2009) (containing language originating in PATRIOT Act § 218); and authority to seek court orders
compelling production of certain educational records possessed by educational agencies and
institutions for use in certain terrorism-related investigations and prosecutions, 20 U.S.C. § 1232g(j)
(2006) (originating in PATRIOT Act § 507). You also identified one provision regarding information-
sharing within the federal government, section 508, which authorized the Attorney General or a
designee above a specified rank to apply for an ex parte court order to obtain certain confidential
educational reports, records, and information possessed by the Department of Education for use in
certain terrorism-related investigations and prosecutions. 20 U.S.C. § 9573(e) (2006) (containing
language originating in PATRIOT Act § 508).
We have independently identified and reviewed several other information-sharing provisions of the
PATRIOT Act (as amended), including provisions permitting disclosure within the federal government
of certain intelligence-related grand jury matters, Fed. R. Crim. P. 6(e)(3)(D) (containing language
3
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The PATRIOT Act includes certain express exceptions to otherwise applicable
confidentiality provisions. Section 508 of the PATRIOT Act provided for
authorized applications by certain high-ranking Justice Department officials for an
ex parte court order requiring production of certain educational records—
possessed by the Department of Education and otherwise subject to statutory
confidentiality requirements—for use in certain terrorism-related investigations
and prosecutions. PATRIOT Act § 508 (repealed by Pub. L. No. 107-279,
§§ 401(a)(6), 403(1), 116 Stat. 1940, 1983, 1985 (2002)); 20 U.S.C. § 9573(e)
(2006) (recodifying similar authorization). This provision authorized court orders
“requiring” the Secretary of Education to permit the Attorney General or his
designee to “collect” and “retain, disseminate, and use” these records for official
purposes related to covered investigations and prosecutions, “[n]otwithstanding”
statutory disclosure prohibitions that would otherwise apply to those specific
records. PATRIOT Act § 508; 20 U.S.C. § 9573(e). In addition, among numerous
other changes, the PATRIOT Act amended applicable laws to permit wider
sharing of certain evidence collected by grand juries, see Fed. R. Crim. P.
6(e)(3)(D), and broader disclosure within the government, “[n]otwithstanding any
other provision of law,” of certain intelligence-related information obtained as part
of a criminal investigation. 50 U.S.C.A. § 403-5d (West 2003 & Supp. 2009); see
also supra note 2. None of the PATRIOT Act’s provisions expressly references
the Census Act or its confidentiality protections.
You have asked whether any of the information-gathering or information-
sharing provisions of the PATRIOT Act, as amended, may override the confiden-
tiality requirements of the Census Act so as to require the Commerce Secretary to
disclose otherwise covered census information to federal law enforcement or
national security officials. Our understanding from you is that you are not asking
originating in PATRIOT Act § 203(a)); provisions permitting sharing within the federal government of
certain intelligence-related information contained in certain electronic intercepts, 18 U.S.C. § 2517(6)
(2006) (originating in PATRIOT Act § 203(b)); provisions permitting sharing within the federal
government of certain intelligence-related information “obtained as part of a criminal investigation,” 50
U.S.C.A. § 403-5d (West 2003 & Supp. 2009) (containing language originating in PATRIOT Act
§ 203(d)); provisions authorizing the Secretary of the Treasury to share certain financial records and
reports with other agencies, 12 U.S.C. §§ 3412(a), 3420(a)(2) (2006), 31 U.S.C. § 5319 (2006)
(containing provisions originating in PATRIOT Act § 358); provisions requiring an entity in the
Treasury Department to analyze, disseminate, and provide access to certain information relating to
financial crimes, 31 U.S.C. § 310 (2006) (containing provisions originating in PATRIOT Act § 361);
provisions requiring the Attorney General and FBI Director to provide the State Department and
Immigration and Naturalization Service with access, for visa-related purposes, to criminal history
record information in certain files, 8 U.S.C. § 1105(b) (2006) (originating in PATRIOT Act § 403(a));
provisions encouraging dissemination of information collected under certain statutory provisions “so it
may be used efficiently and effectively for national intelligence purposes,” 50 U.S.C. § 403-1(f)(6)
(2006) (containing language originating in PATRIOT Act § 901); and provisions generally requiring
“expeditious[]” disclosure to intelligence officials, pursuant to established guidelines, of foreign
intelligence acquired by federal law enforcement officers “in the course of a criminal investigation,” 50
U.S.C. § 403-5b (2006) (containing language originating in PATRIOT Act § 905).
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Census Confidentiality and the PATRIOT Act
us to address what effect, if any, the Census Act confidentiality provisions have on
census-related information or communications that could possibly be obtained
through surveillance, interception, or other means apart from a direct request to the
Commerce Department. Nor are you asking us to address the effect, if any, of
PATRIOT Act provisions on the confidentiality under the Census Act of census
information possessed not by the Commerce Department, but by third parties, such
as those furnishing census information. We have reviewed the PATRIOT Act
provisions that you have identified, and we have also conducted an independent
review of the statute. With one exception, we conclude that none of the provisions
appears on its face to require the Secretary of Commerce to disclose census
information otherwise subject to the confidentiality protection mandated by the
Census Act. We therefore do not discuss the entirety of the PATRIOT Act in
detail and instead turn to the one provision that, in our judgment, warrants further
analysis.
In section 215 of the PATRIOT Act, Congress amended provisions of the
Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C.A. § 1801–1885c (West
2003 & Supp. 2009), that previously authorized court orders to obtain records
from specified types of businesses, see 50 U.S.C. § 1862 (2000), to permit orders
for production of “any tangible things” for use in certain terrorism and intelligence
investigations, see 50 U.S.C.A. § 1861(a)(1) (West 2003 & Supp. 2009). As
amended by the Reauthorization Act and two other statutes, see Reauthorization
Act § 106; USA PATRIOT Act Additional Reauthorizing Amendments Act of
2006, Pub. L. No. 109-178, §§ 3–4, 120 Stat. 278, 278–81; Intelligence Authoriza-
tion Act for Fiscal Year 2002, Pub. L. No. 107-108, § 314(a)(6), 115 Stat. 1394,
1402, section 215 now provides:
Subject to paragraph (3) [which requires especially high-level ap-
proval within the FBI for certain categories of records], the Director
of the Federal Bureau of Investigation or a designee of the Director
(whose rank shall be no lower than Assistant Special Agent in
Charge) may make an application for an order requiring the produc-
tion of any tangible things (including books, records, papers, docu-
ments, and other items) for an investigation to obtain foreign intelli-
gence information not concerning a United States person or to
protect against international terrorism or clandestine intelligence ac-
tivities, provided that such investigation of a United States person is
not conducted solely upon the basis of activities protected by the first
amendment to the Constitution.
50 U.S.C.A. § 1861(a)(1).3
3
The Reauthorization Act provided that the FISA provisions amended by section 215 would revert
to their pre-PATRIOT Act form on December 31, 2009, but would remain in effect “[w]ith respect to
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II.
Section 215, by its plain terms, provides the FBI with broad authority to obtain
“tangible things (including books, records, papers, documents, and other items)”
for use in certain terrorism and intelligence investigations.4 And, as a general
matter, the PATRIOT Act and its legislative history suggest an intention on the
part of Congress to provide the federal government with substantial new powers to
combat terrorism and protect national security. See, e.g., H.R. Rep. No. 109-174,
at 7 (2005) (conference report on Reauthorization Act describing PATRIOT Act
as intended “[t]o better equip Federal law enforcement and the intelligence
community with the resources necessary to confront . . . modern threats”); H.R.
Rep. No. 107-236, pt. 1, at 41 (2001) (committee report on predecessor bill to the
PATRIOT Act describing legislation as “provid[ing] enhanced investigative tools
and improv[ing] information sharing for the law enforcement and intelligence
communities to combat terrorism and terrorist-related crimes”).
There is, however, a long history of congressional enactments providing broad
confidentiality protection to census information. The Supreme Court has construed
sections 8 and 9 of the Census Act to “embody explicit congressional intent to
preclude all disclosure of raw census data reported by or on behalf of individuals,”
Baldrige, 455 U.S. at 361, and lower courts have likewise deemed it “‘abundantly
clear that Congress intended both a rigid immunity from publication or discovery
and a liberal construction of that immunity that would assure confidentiality,’”
Carey v. Klutznick, 653 F.2d 732, 739 (2d Cir. 1981) (quoting McNichols v.
Klutznick, 644 F.2d 844, 845 (10th Cir. 1981)); see also United States v. Bethle-
hem Steel Corp., 21 F.R.D. 568, 569–70, 572 (S.D.N.Y. 1958) (holding that “the
purpose to protect the privacy of the information furnished to the Government is
so clear and the public policy underlying the purpose so compelling that absent a
clear Congressional grant, there is no basis upon which to direct the Department of
Commerce to make available to the Department of Justice or to any person the
reports here sought”). Moreover, Congress, far from disavowing this judicial
construction, has amended the Census Act several times—including through the
addition of further express exceptions to section 9—without limiting or repealing
any particular foreign intelligence investigation that began before the date on which [these] provi-
sions . . . cease to have effect, or with respect to any particular offense or potential offense that began
or occurred before the date on which such provisions cease to have effect.” See Reauthorization Act
§ 102(b). Congress recently postponed the December 31, 2009 sunset in the Reauthorization Act until
February 28, 2010. See Department of Defense Appropriations Act, 2010, Pub. L. No. 111-118,
§ 1004(a), 123 Stat. 3409, 3470. Legislation pending in Congress would further reauthorize section 215
with certain amendments. See, e.g., S. 1692, 111th Cong. (as reported by S. Comm. on the Judiciary,
Oct. 13, 2009).
4
For purposes of this opinion, we assume without deciding that, even though section 215 is not
expressly cast as an intragovernmental information-sharing provision, section 215 orders may require
“production” of “tangible things” not only from parties outside the federal government, but also from
agencies within it.
6
Census Confidentiality and the PATRIOT Act
the courts’ expansive interpretation of the Act’s prohibition (absent a clear
exception) on disclosure of covered census information possessed by the Com-
merce Department.5
The question, therefore, is whether the broad but general language in section
215 should be construed to override the well-established confidentiality protec-
tions set forth in the Census Act, even though section 215 contains no express and
specific statement indicating an intention to do so. Of course, strictly speaking, the
plain text of section 215 could be read to conflict with the confidentiality provi-
sion of the Census Act, as the phrase “any tangible things” could be construed to
encompass census records. Nonetheless, we think section 215 is better read not to
have this significant consequence, and prior executive branch precedent address-
ing when and whether a subsequent statute should be construed to cut back on the
confidentiality of census records supports that conclusion.
Indeed, for more than sixty years, the Executive Branch has consistently em-
ployed a strong presumption that statutes affecting access to information in
general should not be construed to overcome the specific protections afforded to
covered census information by the Census Act. In a 1944 Attorney General
opinion, for example, we concluded that a statute generally requiring transfer of
records to the National Archives did not remove statutory confidentiality protec-
tions applicable to census records. Confidential Treatment of Census Records, 40
Op. Att’y Gen. 326, 328. The statute at issue there provided that “‘[a]ll archives or
5
See, e.g., Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies
Appropriations Act, 1998, Pub. L. No. 105-119, 111 Stat. 2471, 2487 (1997); Census of Agriculture
Act of 1997, Pub. L. No. 105-113, §§ 2(f), 4(a)(1), 111 Stat. 2274–76; Census Address List Improve-
ment Act of 1994, Pub. L. No. 103-430, § 2(b), 108 Stat. 4393, 4394; Foreign Direct Investment and
International Financial Data Improvements Act of 1990, Pub. L. No. 101-533, § 5(b)(2), 104 Stat.
2344, 2348; Act of Oct. 15, 1962, Pub. L. No. 87-813, 76 Stat. 922. Indeed, the legislative history of
census-related enactments includes repeated acknowledgments of a strong statutory policy of census
confidentiality. See, e.g., S. Rep. No. 105-141, at 4 (1997) (describing express exception added to
section 9 as “grant[ing] the Secretary of Commerce the authority to provide information [covered by
that section] to the Secretary of Agriculture”); H.R. Rep. No. 105-296, at 4 (1997) (same); S. Rep. No.
93-1183, at 70 (1974) (committee report on federal privacy legislation describing census statutes as
“prohibit[ing] publication of data gathered by the [Census] Bureau in identifiable form and strictly
govern[ing] confidentiality”); H.R. Rep. No. 93-1416, at 12 (1974) (committee report on federal
privacy legislation describing the “[l]aws relating to the Bureau of the Census” as “very strict, limiting
access to such records only to Census employees”); S. Rep. No. 87-2218, at 1 (1962) (noting that
“[o]riginal reports filed with the Bureau of the Census are confidential” under census statutes); H.R.
Rep. No. 60-960, at 23 (1908) (describing predecessor to section 9 as intended to provide “a more
effective guaranty than heretofore of the confidential character of the returns as needed in many cases
and desirable in all to enlist that public confidence without which census inquiries must fail”); see also
Proclamation No. 1898 (Nov. 22, 1929) (proclamation by President Hoover) (“No person can be
harmed in any way by furnishing the information required [by the census]. The Census has nothing to
do . . . with the enforcement of any national, state, or local law or ordinance.”); see generally Baldrige,
455 U.S. at 356–58 (reviewing history of census statutes and concluding that the history “reveals a
congressional intent to protect the confidentiality of census information by prohibiting disclosure of
raw census data reported by or on behalf of individuals”).
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records belonging to the Government of the United States (legislative, executive,
judicial, and other) shall be under the charge and superintendence of the Archivist
to th[e] extent” of, among other things, permitting the Archivist “to make regula-
tions for the arrangement, custody, use, and withdrawal of material deposited in
the National Archives Building.’” Id. at 327 (quoting Act of June 19, 1934, ch.
668, § 3, 48 Stat. 1122, 1122). The statute further provided that “‘[a]ll Acts or
parts of Acts relating to the charge and superintendency, custody, preservation,
and disposition of official papers and documents of executive departments and
other governmental agencies inconsistent with the provisions of this Act are
hereby repealed.’” Id. (quoting Act of June 19, 1934, ch. 668, § 11, 48 Stat. 1122,
1124). The Acting Attorney General concluded that census records could be
transferred to the custody of the Archivist under these provisions. However, even
in the face of language expressly repealing “[a]ll” inconsistent federal statutes, the
Acting Attorney General determined that the Archivist lacked the discretion—
otherwise provided as part of the authorizing statute creating the Office of the
Archivist—to allow for the dissemination and use of the transferred census
records. Census records transferred to the custody of the Archivist remained
subject to confidentiality statutes specific to census information, as “[i]t would
require very clear language in a general statute relating to the custody of records to
justify attributing to the Congress an intention to depart from” the policy of census
confidentiality. Id. at 328.6
6
In 1950, Congress amended the statutes governing the National Archives of the United States to
provide, among other things, that
[w]henever any records the use of which is subject to statutory limitations and re-
strictions are . . . transferred [to the National Archives], permissive and restrictive
statutory provisions with respect to the examination and use of such records applica-
ble to the head of the agency from which the records were transferred or to employees
of that agency shall thereafter likewise be applicable to the Adminstrator [of General
Services, who oversaw the National Archives under the statute], the Archivist, and to
the employees of the General Services Administration.
Federal Records Act of 1950, ch. 849, § 507(b), 64 Stat. 583, 587; see also Pub. L. No. 90-620, 82 Stat.
1238, 1288 (1968) (codifying similar provision at 44 U.S.C. § 2104). The amended statute provided,
however, that such statutory restrictions would remain in effect for fifty years unless the Administrator
extended the restrictions for a further period. See Federal Records Act § 507(b); see also Pub. L. No.
90-620, 82 Stat. 1238, 1288 (codifying similar provision at 44 U.S.C. § 2104). In 1973, this Office
advised that the “plain language” and “history” of these provisions expressly governing agency records
“constitute[d]” the “very clear language” required to supersede census confidentiality under the 1944
Attorney General opinion, and thus that the Archivist had authority under the statute to disclose census
records after fifty years notwithstanding a 1952 agreement between the Census Bureau and the
Archivist that barred disclosure of census records for seventy-two years. See Memorandum for William
G. Casselman II, General Counsel, General Services Administration, from Robert G. Dixon, Jr.,
Assistant Attorney General, Office of Legal Counsel, at 7, 8 (June 14, 1973).
In further amendments to these statutes in 1978, Congress generally shortened to thirty years the
period during which statutorily protected documents must remain confidential, but also provided
specifically that “any release” of “census and survey records of the Bureau of the Census containing
data identifying individuals enumerated in population censuses” would be governed by the 1952
8
Census Confidentiality and the PATRIOT Act
The expectation that Congress would not cut back on the confidentiality of
census records without doing so in a very clear manner has governed executive
branch interpretation in subsequent decades. For example, the Acting Attorney
General concluded in 1962 that section 9’s confidentiality protections applied to
certain surveys then authorized by the Census Act but exempt from Census Act
provisions penalizing false responses and failures to respond (and thus considered
“voluntary”). Confidentiality of “Voluntary” Reports Under the Census Laws, 42
Op. Att’y Gen. 151, 151–52. Although pre-1954 census statutes had expressly
provided that such surveys were subject to statutory confidentiality provisions and
the 1954 census statute (which included section 9(a) in substantially similar form
to the Census Act today) included no such express cross-reference, the Acting
Attorney General observed that “a change in the law so far-reaching as to deprive
voluntary reports of their confidential nature certainly would have been pointed
out and explained in” the legislative history. Id. at 155. Indeed, the Acting
Attorney General found “no uncertainty” in the language of section 9. Id. Noting
that section 9 included other express exceptions but otherwise applied to all
information furnished “under this title,” the Acting Attorney General concluded
that “[i]f Congress had sought to exempt the replies to voluntary surveys from the
operation of 13 U.S.C. 9(a), it certainly would have done so expressly.” Id.
Finally, in a more recent opinion, this Office determined that a statute plainly
intended to enhance the ability of government officials to share immigration status
information with immigration authorities did not override the Census Act’s
protections for covered census information possessed by the Commerce Depart-
ment. IIRIRA Opinion. The statute at issue prohibited any federal, state, or local
government entity or official from restricting any government entity or official
from “sending to, or receiving from, the Immigration and Naturalization Service
information regarding the citizenship or immigration status, lawful or unlawful, of
any individual.” Id. at *4 (quoting 8 U.S.C.A. § 1373(a) (West 1999)). Although
the opinion rested primarily on a reading of the statute that construed the re-
strictions on “government entities” as not encompassing Congress’s enactment of
census confidentiality provisions, see id. at *6, this Office, in support of this
conclusion, reiterated that “[i]n light of the federal government’s longstanding
commitment to confidentiality in this area, there is every reason to expect that
agreement and any amendments to that agreement “now or hereafter entered into between the Director
of the Bureau of the Census and the Archivist of the United States.” See Pub. L. No. 95-416, 92 Stat.
915 (1978) (amending 44 U.S.C. § 2104); see also 44 U.S.C. § 2108 (2006) (codifying similar
provisions). Consistent with Congress’s longstanding policy of census confidentiality, the House
Committee on Government Operations explained the need for a specific protection for census records
by noting that “[t]he committee believes that the right of American citizens to assert a right of privacy
over information provided in census questionnaires far outweighs the general public’s right to have
access to that information during the lifetime of the individual citizen.” H.R. Rep. No. 95-1522, at 3
(1978); see also S. Rep. No. 95-710, at 2 (1978) (explaining that this provision “addresses the issue of
premature release of census records information”).
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Congress would have spoken with particular clarity if it had intended to cut back
on the scope of 13 U.S.C. § 9(a) in enacting” a new statute. Id. at *11. We thus
concluded that “the absence of a reference in either statute to the other suggests
that the text of 13 U.S.C. § 9(a) should be construed to mean just what it says, and
that [the immigration statute] should be understood to have left in place the
confidentiality requirement that 13 U.S.C. § 9(a) establishes.” Id. at 8–9 (footnote
omitted).
In light of this consistent precedent, we would construe section 215 to override
the preexisting Census Act protections for covered census information possessed
by the Commerce Department only if the evidence of congressional intention
compelled such a conclusion. Here, however, the evidence does not compel such a
conclusion.
Section 215 makes no reference to the census or the Census Act. And although
Congress has amended section 9 of the Census Act on several occasions to
establish exceptions, it has not added an express exception for section 215 orders
in the wake of that provision’s enactment. Nor is there language in section 215
like that contained in the statute addressed in the 1944 Attorney General opinion
concerning the archivist’s role as custodian of governmental records. There, the
statute expressly stated that the authority of the archivist to take custody of records
extended to all records “belonging to the Government of the United States
(legislative, executive, judicial, and other)” and for purposes of carrying out that
authority, “all” inconsistent federal statutes were repealed. Confidential Treatment
of Census Records, 40 Op. Att’y Gen. at 327. By contrast, section 215 not only
does not expressly encompass “all” governmental records (it simply permits orders
requiring production of “tangible things” in general); it also includes no express
repeal of any federal statute prohibiting disclosure of such information. Similarly,
section 215 contains no language like that identified in this Office’s 1999 opinion
on the relationship between the immigration disclosure provision and the Census
Act’s confidentiality provisions, in which we noted the absence of express
language such as “notwithstanding any provision of law . . . [this provision
provides for the disclosure of information] without restriction” that could indicate
an intention to override the longstanding statutory protections for census infor-
mation possessed by the Department of Commerce. IIRIRA Opinion at *5.
The PATRIOT Act does include a severability clause requiring that PATRIOT
Act provisions be given “maximum effect” if deemed invalid or unenforceable in
part or as applied, but this provision does not indicate congressional “intent that
[section 215] be construed broadly to give it maximum effect,” as the National
Security Division has suggested to us in its views. The full text of this provision
states:
Any provision of this Act held to be invalid or unenforceable by its
terms, or as applied to any person or circumstance, shall be con-
strued so as to give it the maximum effect permitted by law, unless
10
Census Confidentiality and the PATRIOT Act
such holding shall be one of utter invalidity or unenforceability, in
which event such provision shall be deemed severable from this Act
and shall not affect the remainder thereof or the application of such
provision to other persons not similarly situated or to other, dissimi-
lar circumstances.
PATRIOT Act § 2 (reprinted at 18 U.S.C. § 1 note (2006)). By its plain terms, this
provision applies only when PATRIOT Act provisions are “held to be invalid or
unenforceable” in whole or in part (emphasis added); it does not otherwise
establish any special rule of construction for the PATRIOT Act or manifest an
intention to repeal, absent judicial invalidation, any provision of prior law. See
also, e.g., 147 Cong. Rec. 20,685 (2001) (section by section analysis of PATRIOT
Act conference report included in the record by Sen. Leahy describing this
provision as “provid[ing] that any portion of this Act found to be invalid or
unenforceable by its terms, or as applied to any person or circumstance, shall be
construed to give it the maximum effect permitted by law and that any portion
found invalid or unenforceable in its entirety shall be severable from the rest of the
Act”).
Given the established interpretive approach to repeal of the Census Act’s con-
fidentiality provisions, the absence of any express repeal language in section 215
is significant, especially because other sections of the PATRIOT Act expressly
revise statutory restrictions on certain other categories of confidential information.
Section 508 provides a striking comparison. Much like section 215, this provi-
sion authorized applications by certain high-ranking Justice Department officials
for an ex parte court order requiring production of certain information (specifical-
ly, certain educational records possessed by the Department of Education) for use
in certain terrorism-related investigations. PATRIOT Act § 508 (repealed by Pub.
L. No. 107-279, §§ 401(a)(6), 403(1), 116 Stat. 1940, 1983, 1985 (2002)); 20
U.S.C. § 9573(e) (recodifying similar authorization). But in contrast to section
215, which simply authorizes orders for “production” of tangible things in general,
section 508 expressly established a mechanism for information-sharing between
federal agencies, and expressly repealed applicable confidentiality statutes, using
precisely the sort of language—“notwithstanding [other specified provisions],”
PATRIOT Act § 508; 20 U.S.C. § 9573(e)—that we suggested in our IIRIRA
opinion would indicate congressional intent to repeal confidentiality protections of
the Census Act, IIRIRA Opinion at *5; see PATRIOT Act § 508; 20 U.S.C.
§ 9573(e). Moreover, at least one other PATRIOT Act provision likewise applies
“[n]otwithstanding” other specified provisions of law. See PATRIOT Act § 507
(codified at 20 U.S.C. § 1232g(j) (2006)) (authorizing court orders to obtain
certain records from educational institutions or agencies “[n]otwithstanding
subsections (a) through (i) of this section or any provision of State law”). And, as
noted, the PATRIOT Act explicitly modified certain other confidentiality protec-
tions, such as grand jury secrecy, to permit wider sharing of certain categories of
11
Opinions of the Office of Legal Counsel in Volume 34
sensitive information within the federal government. See, e.g., PATRIOT Act
§ 203(a)(1) (similar provision now codified at Fed. R. Crim. P. 6(e)) (permitting
disclosure of certain intelligence-related grand jury matters); id. § 203(d) (includ-
ing language codified at 50 U.S.C.A. § 403-5d (West 2003 & Supp. 2009))
(permitting sharing of certain information obtained as part of a criminal investiga-
tion). Section 508 and such other provisions explicitly modifying restrictions on
information-sharing or disclosure show at the very least that Congress was aware
of specific federal confidentiality provisions and could have drafted explicit
authority to overcome Census Act prohibitions on information-sharing had it
wished to do so.7
Our conclusion is further reinforced by prior Office precedent construing gen-
erally applicable information-sharing statutes. In these instances, we applied a
similarly strong presumption of confidentiality in concluding that such measures
did not override more specific confidentiality protections, even though as a matter
of plain text the terms of the purportedly overriding statute could have been
construed to be inconsistent with the confidentiality provisions at issue, just as is
arguably the case here.
In GAO Access to Trade Secret Information, 12 Op. O.L.C. 181, 182 (1988)
(“GAO Access”), for example, we considered whether the Food and Drug Admin-
istration (“FDA”) could provide trade secret information to the Comptroller
General. The potentially overriding statute required “[e]ach agency” to “give the
Comptroller General information the Comptroller requires about the duties,
powers, activities, organization, and financial transactions of the agency,” id.
(quoting 31 U.S.C. § 716(a) (1982)). A separate statute, however, barred the FDA
from “revealing, other than to the Secretary [of Health and Human Services] or
officers or employees of [the Department of Health and Human Services], or to the
courts when relevant in any judicial proceeding under [other provisions of the
same statute], any information acquired under [specified sections of that statute]
concerning any method or process which as a trade secret is entitled to protection.”
Id. at 181 (quoting 21 U.S.C. § 331(j) (1982)). At the outset, we observed that the
FDA trade secrets statute was “clear on its face” and “expressly provides that trade
secret information may not be disclosed outside [the Department of Health and
Human Services] with one exception: such information may be disclosed to a
court in a judicial proceeding under the [statute].” Id. We then observed that a
prior Attorney General opinion concluded, based in part on longstanding Execu-
tive Branch interpretation, that the FDA trade secrets statute did not allow for an
implied exception for disclosure of covered information to Congress. Id. at 181–82
(discussing Federal Food, Drug & Cosmetic Act—Prohibition on Disclosure of
Trade Secret Information to a Congressional Committee, 43 Op. Att’y Gen. 116
7
We do not consider here whether and to what extent section 215 orders may also reach education-
al records (whether or not subject to production under section 508) or any other confidential
information not protected by the Census Act.
12
Census Confidentiality and the PATRIOT Act
(1978)). Accordingly, we concluded that the statute generally requiring disclosure
of information to the Comptroller General did not supersede the statute specifical-
ly protecting the confidentiality of trade secrets. Id. 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, [the trade secrets statute] controls in the absence of congres-
sional intent to the contrary.” Id. at 182–83.
Similarly, in Disclosure of Confidential Business Records Obtained Under the
National Traffic and Motor Vehicle Safety Act, 4B Op. O.L.C. 735 (1980)
(“Business Records”), we considered whether provisions in the Federal Reports
Act, 44 U.S.C. § 3508 (1976), dealing with “the general matter of the intra-
governmental exchange of information,” 4B Op. O.L.C. at 736, were applicable to
confidential information and trade secrets protected by the National Traffic and
Motor Vehicle Safety Act (“Safety Act”), 15 U.S.C. 1401 (1976). The Safety Act
subjected the mandatory reporting of certain safety-related information to
confidentiality guarantees by providing that officers and employees of the safety
agency could not “publish[], divulge[], disclose[], or make[] known” such
information “in any manner or to any extent not authorized by law.” 4B Op.
O.L.C. at 735–36 & nn. 1–2. In concluding that the general provisions of the
Federal Reports Act did not override the specific protections of the Safety Act, id.
at 738, we analogized the Safety Act reports to census records, observing that
confidentiality served the purposes of the statute because Safety Act respondents,
like census respondents, may “fear, possibly even more [than disclosure to the
public or competitors], the disclosure of [reported] information to regulatory or
law-enforcing agencies,” id. at 737. Thus, we observed, it “may be anticipated that
firms will be less willing to submit correct and complete information under the
Safety Act if they must expect that this information will be shared with [federal
regulatory] agencies.” Id. at 737–38.
Much like the trade secrets statute addressed in our GAO Access opinion, sec-
tion 9 of the Census Act “expressly” protects covered census information from
disclosure and has long been understood to bar the dissemination by the Com-
merce Department of such information outside the Commerce Department except
when authorized by a clear statutory exception. 12 Op. O.L.C. at 181. Moreover,
much as the trade secrets statute at issue in our GAO Access opinion specifically
addressed “one executive branch agency’s handling of” a specific category of
information, while the Comptroller General statute broadly covered “all kinds of
information in possession of the executive branch” that would be useful for
particular investigations, id. at 182–83, so, too, here the Census Act’s protections
are specific to a very narrow subset of records—covered census information—
relative to the broad category of “tangible things” covered by section 215.
Likewise, the compliance concerns our Business Records opinion relied upon in
concluding that disclosure “would be contrary to the statutory intent and contrary
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Opinions of the Office of Legal Counsel in Volume 34
to the purposes [the statute] was designed to achieve” seem equally applicable—as
the Business Records opinion itself recognized—to census information protected
by the Census Act. 4B Op. O.L.C. at 738.
In concluding that section 215 does not override the relevant census provisions,
we do not mean to suggest that section 215 may not be read to repeal any federal
statute that protects the confidentiality of information. Our analysis is limited
strictly to the case of census information in the possession of the Commerce
Department, in light of the strong presumption against repeal of those confidential-
ity protections that has long been applied to that category of information. Indeed,
we note that we have identified nothing in the legislative history of section 215
indicating any intent on the part of Congress to touch upon protected census
information, even though other types of sensitive information encompassed by the
terms of section 215 were specifically addressed and identified as potentially
covered by the provision.
For example, in the Reauthorization Act Congress amended section 215 to
require especially high-level approval within the FBI for applications relating to
certain categories of records—specifically, “library circulation records, library
patron lists, book sales records, book customer lists, firearms sales records, tax
return records, educational records, or medical records containing information that
would identify a person.” 50 U.S.C.A. § 1861(a)(3). The Reauthorization Act
conference report describes these protections as applying to “certain sensitive
categories of records.” H.R. Rep. No. 109-333, at 91 (2005) (Conf. Rep.). Notably,
however, the report does not mention census records, even though the long history
of statutory confidentiality protections for census records possessed by the
Commerce Department suggests that Congress would also have considered such
records “sensitive” had it had them in mind as being subject to disclosure under
section 215.
Similarly, in debates regarding the original PATRIOT Act, there is no mention
of census records, even though various other types of records are mentioned. In
particular, Senator Feingold unsuccessfully offered a floor amendment that would
have limited section 215’s scope to records held by a “business” and expressly
prevented disclosure under section 215 of records “protected by any Federal or
State law governing access to the records for intelligence or law enforcement
purposes.” 147 Cong. Rec. 19,530–31 (2001). Although supporters of Senator
Feingold’s amendment raised concerns that section 215 could require the disclo-
sure of other forms of sensitive personal information, they did not mention census
information in their floor statements, much less suggest that without the proposed
amendment section 215 would repeal Census Act confidentiality protections. See,
e.g., id. (statement of Sen. Feingold) (expressing concern that without the amend-
ment “all business records can be compelled to be produced [under section 215],
including those containing sensitive personal information such as medical records
from hospitals or doctors, or educational records, or records of what books
14
Census Confidentiality and the PATRIOT Act
someone has taken out of the library”) (emphasis added); id. at 19,532 (statement
of Sen. Cantwell) (“this legislation could circumvent or supersede Federal and
State privacy laws that protect student records, library records, and health records
not previously admissible under FISA”). And in a floor statement opposing this
amendment, Senator Hatch likewise made no reference to the Census Act (or
indeed any other specific federal confidentiality statute). He simply observed that
the amendment would “allow[] a host of state-law provisions to stand in the way
of national security needs” and “condition the issuance of the court order [under
section 215] on a myriad of federal and state-law provisions,” thus “making
investigations to protect against international terrorism more difficult than
investigations of certain domestic criminal violations.” Id. at 19,532. The silence
as to the statutory protections for the confidentiality of census information is
significant, as we think it fair to say here what the Acting Attorney General said
with respect to the confidentiality of voluntary census records in his 1962
opinion—that “a change in the law so far-reaching as to deprive voluntary reports
of their confidential nature certainly would have been pointed out and explained
in” the legislative history. Confidentiality of “Voluntary” Reports, 42 Op. Att’y
Gen. at 155.
*****
We therefore conclude that section 215 should not be construed to repeal oth-
erwise applicable Census Act protections for covered census information such that
they could require their disclosure by the Department of Commerce. Because no
other PATRIOT Act provision that you have identified, nor any such provision
that we have separately reviewed, would appear to have that effect, we agree that
the PATRIOT Act, as amended, does not alter the confidentiality protections in
sections 8, 9, and 214 of the Census Act in a manner that could require the
Secretary of Commerce to disclose such information.
JEANNIE S. RHEE
Deputy Assistant Attorney General
Office of Legal Counsel
15