Effect of Appropriations Rider on Access of DOJ Inspector General to Certain Protected Information

Effect of Appropriations Rider on Access of DOJ
Inspector General to Certain Protected Information
Section 540 of the Commerce, Justice, Science, and Related Agencies Appropriations
Act, 2016, effectively prohibits the Department of Justice, for the remainder of fiscal
year 2016, from denying the Department’s Office of the Inspector General (“OIG”)
timely access to materials requested by OIG, or preventing or impeding OIG’s access
to such materials, pursuant to 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 Pro-
cedure; or section 626 of the Fair Credit Reporting Act. As a result, the Department
may (and must) disregard the limitations in those statutes in making disclosures to OIG
for the remainder of the fiscal year.
April 27, 2016
MEMORANDUM OPINION FOR THE
DEPUTY ATTORNEY GENERAL
You have asked us to clarify the authority of the Department of Justice
(the “Department”) to disclose certain statutorily protected materials to its
Office of the Inspector General (“OIG”) in light of the enactment of the
Commerce, Justice, Science, and Related Agencies Appropriations Act,
2016, Pub. L. No. 114-113, div. B, 129 Stat. 2242, 2286 (2015) (“CJS
Appropriations Act”). 1 In particular, you have asked whether the Depart-
ment may, in light of that Act, disclose to OIG material protected from
disclosure 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)”); or section 626 of the Fair Credit Reporting Act, 15 U.S.C.
§ 1681u (“FCRA”). As relevant, section 540 of the CJS Appropriations
Act provides that the Department may not use fiscal year 2016 funds “to
1 See E-mail for Karl R. Thompson, Principal Deputy Assistant Attorney General, Of-
fice of Legal Counsel, from Carlos Uriarte, Associate Deputy Attorney General, Re:
Request for OLC Opinion (Mar. 9, 2016, 5:16 PM). We requested the views of several
potentially affected entities, and received the views of OIG and the National Aeronautics
and Space Administration (“NASA”). See E-mail for John E. Bies, Deputy Assistant
Attorney General, Office of Legal Counsel, from William M. Blier, General Counsel,
OIG, Re: Solicitation of Views, att. (Mar. 23, 2016, 6:11 PM); E-mail for John E. Bies,
Deputy Assistant Attorney General, Office of Legal Counsel, from David G. Barrett,
Associate General Counsel, NASA, Re: Solicitation of Views (Apr. 6, 2016, 9:41 AM).
39
40 Op. O.L.C. 39 (2016)
deny [its] Inspector General . . . timely access to any records, documents,
or other materials available to the [D]epartment . . . , or to prevent or
impede that Inspector General’s access to such records, documents, or
other materials, under any provision of law, except a provision of law that
expressly refers to the Inspector General and expressly limits the Inspec-
tor General’s right of access.” CJS Appropriations Act § 540, 129 Stat. at
2332. For the reasons set forth below, we conclude that this provision has
the effect of barring the Department, for the remainder of fiscal year
2016, from denying OIG timely access to requested materials pursuant to
Title III, Rule 6(e), or section 626 of FCRA, or from preventing or imped-
ing OIG’s access to such materials. As a result, the Department may (and
must) disregard the limitations in those statutes in making disclosures to
OIG for the remainder of the fiscal year.
I.
We begin with the relevant statutory background and governing legal
principles. With the exception of the subsequently enacted CJS Appropri-
ations Act, these statutes and principles are discussed in depth in this
Office’s recent opinion, Access of Department of Justice Inspector Gen-
eral to Certain Information Protected from Disclosure by Statute, 39 Op.
O.L.C. 12 (2015) (“IG Access”).
The Inspector General Act of 1978, 5 U.S.C. app. (“IG Act”), estab-
lished an Office of Inspector General in a large number of federal agen-
cies. 5 U.S.C. app. §§ 2(A), 8G(a)–(b), 12(2). In 1988, Congress extended
that Act to the Department and established OIG. See Inspector General
Act Amendments of 1988, Pub. L. No. 100-504, § 102(c), (f ), 102 Stat.
2515, 2515, 2520–21 (codified as amended at 5 U.S.C. app. §§ 8E, 12(1)–
(2)). The IG Act grants inspectors general several authorities with respect
to the agencies within which their offices are established, including, in
section 6(a)(1), the authority “to have access to all records, reports, audits,
reviews, documents, papers, recommendations, or other material available
to the applicable establishment which relate to programs and operations
with respect to which that Inspector General has responsibilities under
this Act.” 5 U.S.C. app. § 6(a)(1). Section 8E of the Act qualifies this
authority in certain circumstances, providing that the Attorney General
may “prohibit the Inspector General from carrying out or completing any
audit or investigation, or from issuing a subpoena . . . if the Attorney
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Effect of Appropriations Rider on Access of DOJ Inspector General to Information
General determines that such prohibition is necessary to prevent the
disclosure” of certain sensitive materials. Id. § 8E(a)(2). On its face, the
IG Act thus “requires the Department to disclose ‘all’ materials [requested
by OIG] 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.” IG Ac-
cess, 39 Op. O.L.C. at 20.
As we explained in our IG Access opinion, however, the IG Act is “not
in all circumstances the only statute that governs OIG’s access to Depart-
ment materials.” Id. at 19. The three statutes about which you have
asked—Title III, Rule 6(e), and FCRA—also govern access, including
OIG’s access, to certain highly sensitive Department materials. Title III
provides that an investigative or law enforcement officer “violat[es]” the
law by “willful[ly] disclos[ing]” the contents of a lawfully intercepted
wire, oral, or electronic communication “beyond the extent permitted by”
Title III. 18 U.S.C. § 2520(g). Rule 6(e) provides that “attorney[s] for the
government” and other persons “must not disclose a matter occurring
before [a] grand jury”—such as testimony that witnesses have delivered in
confidential grand jury proceedings—except pursuant to a specific excep-
tion. Fed. R. Crim. P. 6(e)(2)(B). And section 626 of FCRA states that the
Federal Bureau of Investigation (“FBI”) “may not disseminate” consumer
information obtained pursuant to a National Security Letter—which may
include private banking and credit information collected from credit
agencies, frequently without the consumer’s knowledge—except under
two enumerated exceptions. 15 U.S.C. § 1681u(g).
These statutes permit Department officials to disclose covered materi-
als to OIG in “most, but not all, of the circumstances in which OIG might
request [them].” IG Access, 39 Op. O.L.C. at 15; see id. at 21–69 (exam-
ining each statute in detail to identify the circumstances in which it per-
mits disclosure to OIG). In particular, Title III and Rule 6(e) allow De-
partment officials to disclose the contents of intercepted communications
and grand jury materials to OIG in connection with any OIG investigation
or review that relates to the Department’s criminal law enforcement
activities, and section 626 of FCRA allows the FBI to disclose protected
consumer information to OIG if the disclosure could assist in the approval
or conduct of foreign counterintelligence investigations. See id. at 68. But
the statutes do not permit disclosures that “have either an attenuated or no
41
40 Op. O.L.C. 39 (2016)
connection” with the Department’s criminal law enforcement activities, or
the approval or conduct of foreign counterintelligence investigations. Id.
at 68. Accordingly, if OIG were to request access to protected materials in
one of those limited circumstances in which Title III, Rule 6(e), or section
626 prohibits their disclosure, Department officials would face potentially
conflicting statutory commands. On the one hand, the IG Act states that
Department officials must grant OIG access to “all materials” that OIG
requests and that fall within OIG’s investigative jurisdiction; on the other
hand, Title III, Rule 6(e), and section 626 state, respectively, that officials
would “violat[e]” the law by disclosing, “must not disclose,” or “may not
disseminate” the requested materials. See id. at 19–20.
In our IG Access opinion, we resolved this conflict by applying two
well-established legal principles. First, we observed that “in a range of
contexts . . . 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.” Id. at 70. The Court and this Office had previously concluded
that this principle required a clear statement before a statute could be
construed to authorize the disclosure of information protected by Rule
6(e) or Title III—i.e., confidential material (such as witness testimony)
developed in the course of grand jury proceedings, or the contents of
private communications lawfully wiretapped by the government. Id. at
70–71. And we concluded in the IG Access opinion that “the logic of
these opinions . . . extends to section 626 of FCRA” as well, given the
“strict duty of confidentiality” and the “penalties for improper disclosure”
imposed by section 626, as well as the “highly sensitive” nature of the
information section 626 protects—i.e., private consumer banking and
credit information obtained by the FBI from credit agencies, frequently
without the consumer’s knowledge. Id. at 73.
Second, we invoked the “rule of relative specificity,” which 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.’” Id. at 74 (alterations in original) (quoting
Morton v. Mancari, 417 U.S. 535, 550–51 (1974)). Title III, Rule 6(e),
and section 626 of FCRA “address with greater specificity” than the IG
Act “the type of information they regulate,” “the precise conditions under
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Effect of Appropriations Rider on Access of DOJ Inspector General to Information
which disclosure” is permitted, and “the lawful recipients of information.”
Id. at 76–77. Accordingly, we concluded that, like the clear statement
principle pertaining to highly sensitive information, the rule of relative
specificity “require[d] a clear statement” before it could be inferred that
“the general right of access granted by section 6(a)(1) [of the IG Act]
takes precedence over the specific, carefully delineated limits on disclo-
sure Congress set forth in” Title III, Rule 6(e), and section 626. Id. at 78.
Applying these two principles, we concluded that the IG Act does not
contain such a clear statement. Id. at 79. The Act, we observed, “does not
mention” any of the three withholding statutes, or
contain general language addressing potential conflicts with other
statutory confidentiality provisions, such as a statement that the in-
spector general’s right of access shall apply ‘notwithstanding any
other law’ or ‘notwithstanding any statutory prohibition on disclo-
sure’—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 infor-
mation.
Id. at 79–80 (citing Brady Act Implementation Issues, 20 Op. O.L.C. 57,
62 (1996)). Although the IG Act grants inspectors general a right “to have
access to all records” available to their respective agencies and within
their investigative jurisdiction, the Supreme Court and this Office have
repeatedly concluded that “‘expansive modifiers’” like “all” and “any” do
not, on their own, supply the kind of clear statement needed to overcome
competing interpretive presumptions. Id. at 81 (quoting Ali v. Fed. Bureau
of Prisons, 552 U.S. 214, 220 n.4 (2008)); see id. at 81–82. And while we
found “‘plausible’” OIG’s contention that certain language in section
6(b)(1) of the IG Act “implies that Congress intended access under sec-
tion 6(a)(1) to be ‘automatic’ and free of any ‘existing statutory re-
striction[s],’” we ultimately concluded that the “negative inference” that
OIG identified was not “unequivocal enough to establish a clear manifes-
tation of congressional intent,” id. at 83–84, particularly in light of a
statement in the Act’s Senate report that each inspector general’s right of
access would be “‘subject, of course, to the provisions of other statutes,
such as the Privacy Act,’” id. at 86 (emphasis omitted) (quoting S. Rep.
No. 95-1071, at 33–34 (1978)).
43
40 Op. O.L.C. 39 (2016)
Our IG Access opinion also considered whether an appropriations rider
in the Consolidated and Further Continuing Appropriations Act, 2015,
Pub. L. No. 113-235, 128 Stat. 2130 (2014) (“2015 Appropriations Act”),
granted OIG access to information otherwise protected from disclosure by
Title III, Rule 6(e), or section 626 of FCRA. Section 218 of the 2015
Appropriations Act stated:
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, 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.
Id. § 218, 128 Stat. at 2200. We acknowledged that OIG had made “sub-
stantial” arguments that this rider required the Department to grant it
access to materials otherwise protected by Title III, Rule 6(e), and section
626. IG Access, 39 Op. O.L.C. at 92. But we ultimately concluded that the
rider did not override Title III, Rule 6(e), and section 626 in the limited
circumstances in which those statutes bar OIG’s access to protected in-
formation.
We began our analysis of section 218 by observing that there were “at
least three conceivable constructions of the phrase ‘express limitation of
section 6(a) of the Inspector General Act.’” Id. at 93. First, this phrase
could be interpreted to prohibit Department officials from denying OIG
access to materials except under “limitations” on OIG’s access that “ap-
pear in section 6(a) itself or that expressly refer to that section”—a read-
ing that would have barred the Department from withholding materials
from OIG under Title III, Rule 6(e), or section 626 of FCRA, as well as
under section 8E of the IG Act itself. Id. Second, the provision could be
interpreted—as OIG proposed—to refer to “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).” Id. This reading
would have permitted the Department to withhold records under section
44
Effect of Appropriations Rider on Access of DOJ Inspector General to Information
8E, but not under Title III, Rule 6(e), or section 626. Third, the provision
could be interpreted to “encompass all ‘express’ [statutory] limitations on
disclosure that . . . are properly deemed to function as ‘limitation[s] of
section 6(a).’” Id. Under this reading, the Department would be permitted
to withhold information under Title III, Rule 6(e), and section 626, as well
as section 8E of the IG Act. See id.
We concluded that the first interpretation, although a natural reading of
the phrase “express limitation of section 6(a),” was untenable. As noted
above, this reading would have meant that the rider had implicitly re-
pealed (among other things) section 8E of the IG Act itself, a provision
that “does not refer explicitly to section 6(a).” Id. We thought that result
implausible in light of the “strong presumption against implied repeals in
appropriations acts,” and because other parts of the rider made clear that it
was intended to be consistent with the plain language of the Inspector
General Act. Id.
Having found this natural reading of section 218’s key phrase untena-
ble, we went on to consider the second and third readings we had identi-
fied. The second interpretation, we noted, required reading the phrase “in
accordance with an express limitation of section 6(a) of the [IG Act]” to
mean “in accordance with a limitation that expressly addresses disclosures
to OIG under the IG Act.” Id. at 94. Although “not the most natural read-
ing of section 218’s text,” this reading was in our view plausible because
“section 6(a) is the principal provision in the IG Act that governs disclo-
sures to OIG.” Id. The third reading was likewise “reasonably grounded in
the statutory text.” Id. at 95. “Statutes like Title III, Rule 6(e), and section
626” of FCRA, we explained, “can be considered ‘limitations of sec-
tion 6(a)’ in that they supersede section 6(a) in situations where both
section 6(a) and one of those statutes would apply.” Id. And they can be
considered “express” limitations because “they explicitly contemplate . . .
nondisclosure in the circumstances they address”—as opposed to, for
example, general statutory provisions that implicitly authorize an agency
to withhold information, or agency practices grounded in regulations or
other non-statutory authorities. Id.
Although we thought that both the second and the third readings of sec-
tion 218 were plausible, we concluded that the third was more consistent
with the relevant principles of statutory interpretation. We noted that, in
order to override the limitations on disclosure imposed by Title III, Rule
45
40 Op. O.L.C. 39 (2016)
6(e), and section 626 of FCRA, section 218 would—consistent with the
principles we had discussed earlier—need to “contain a clear congres-
sional statement that it was intended to have that effect.” Id. And while
the second reading of the phrase “express limitation of section 6(a)” was
“consonant with” certain “events surrounding [the rider’s] enactment,” id.
at 97, it did not follow clearly from the phrase’s plain language, but rather
“require[d] reading unstated limitations into the rider’s text,” id. at 95.
Further, as noted above, the phrase “express limitation of section 6(a)”
was also susceptible to another plausible reading—the third reading—that
allowed information to be withheld pursuant to Title III, Rule 6(e), and
section 626. As a result, that phrase did not in our view “constitute a
sufficiently clear statement to override the limitations on disclosure im-
posed by those statutes.” Id.
This conclusion was reinforced by the fact that “section 218 appear[ed]
in an appropriations act that post-dates the provisions in Title III, Rule
6(e) and section 626 of FCRA.” Id. at 95–96. “[T]here 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.” Id. at 96 (second alteration in original) (quoting
Calloway v. Dist. of Columbia, 216 F.3d 1, 9 (D.C. Cir. 2000)); see Tenn.
Valley Auth. v. Hill, 437 U.S. 153, 189–91 (1978). We did not find such
evidence in section 218, given that it did not “mention Title III, Rule 6(e),
or section 626” or “state that the provision [was] intended to amend
existing statutes in any way.” IG Access, 39 Op. O.L.C. at 96. We also
noted that the drafters’ general statement that section 218 was “‘designed
to improve OIG access to Department documents and information’” was
consistent with all of the readings we had considered, including the third
reading, under which the rider functioned to “reaffirm and reinforce” the
existing disclosure requirements in the IG Act by adding timeliness and
reporting requirements, and adding the possibility of Anti-Deficiency Act
consequences for failure to make required disclosures. Id. at 96–97 (quot-
ing 160 Cong. Rec. H9345 (daily ed. Dec. 11, 2014)).
Several months after we issued the IG Access opinion, Congress enact-
ed the Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, 129
Stat. 2242 (Dec. 18, 2015). Division B of that statute, the CJS Appro-
priations Act, appropriates funds to the Department of Justice and OIG,
as well as several additional entities, “for the fiscal year ending Sep-
46
Effect of Appropriations Rider on Access of DOJ Inspector General to Information
tember 30, 2016,” commonly referred to as fiscal year 2016. CJS Appro-
priations Act § 5, 129 Stat. at 2244; see id. tit. II, 129 Stat. at 2296. Sec-
tion 540 of the CJS Appropriations Act provides:
No funds provided in this Act shall be used to deny an Inspector
General funded under this Act timely access to any records, docu-
ments, or other materials available to the department or agency over
which that Inspector General has responsibilities under the Inspector
General Act of 1978, or to prevent or impede that Inspector Gen-
eral’s access to such records, documents, or other materials, under
any provision of law, except a provision of law that expressly refers
to the Inspector General and expressly limits the Inspector General’s
right of access. A department or agency covered by this section shall
provide its Inspector General with access to all such records, docu-
ments, and other materials in a timely manner. Each Inspector Gen-
eral shall ensure compliance with statutory limitations on disclosure
relevant to the information provided by the establishment over which
that Inspector General has responsibilities under the Inspector Gen-
eral Act of 1978. Each Inspector General covered by this section
shall report to the Committees on Appropriations of the House of
Representatives and the Senate within 5 calendar days any failures to
comply with this requirement.
Id. § 540, 129 Stat. at 2332. In a joint explanatory statement, the statute’s
drafters explained simply that “[s]ection 540 requires agencies funded by
the Act to provide Inspectors General with timely access to information.”
161 Cong. Rec. H9745 (daily ed. Dec. 17, 2015); see Consolidated Ap-
propriations Act, 2016 § 4, 129 Stat. at 2244 (stating that this explanatory
statement “shall have the same effect . . . as if it were a joint explanatory
statement of a committee of conference”).
II.
As we explained in the IG Access opinion (and as discussed above), an
appropriations act may be construed to override the limitations on disclo-
sure contained in Title III, Rule 6(e), and section 626 of FCRA only if the
act contains a “‘clear’” and “‘unambiguous[]’” statement that Congress
intended it to have that effect. IG Access, 39 Op. O.L.C. at 97; supra
pp. 45–46. We conclude that section 540 of the CJS Appropriations Act
47
40 Op. O.L.C. 39 (2016)
contains such a clear and unambiguous statement, and therefore that it
effectively bars the Department from withholding materials from OIG
pursuant to Title III, Rule 6(e), or section 626 for the remainder of fiscal
year 2016. As a result, the Department may (and must) disregard the
limitations in those statutes in making disclosures to OIG during the
remainder of that year.
To start, there is no question that section 540 on its face imposes a re-
striction on the Department’s use of fiscal year 2016 funds to deny, pre-
vent, or impede OIG’s access to Department materials. The first part of
that provision states that “[n]o funds provided in this Act shall be used” to
deny, prevent, or impede the access of “an Inspector General funded
under this Act” to materials “available to the department or agency over
which the Inspector General has responsibilities under the Inspector
General Act of 1978.” The “Act” referred to in section 540 is the CJS
Appropriations Act, which appropriates funds both to the Department
generally and to OIG specifically for fiscal year 2016. See Consolidated
Appropriations Act, 2016 § 3, 129 Stat. at 2244 (“Except as expressly
provided otherwise, any reference to ‘this Act’ contained in any division
of this Act shall be treated as referring only to the provisions of that
division.”); CJS Appropriations Act tit. II, 129 Stat. at 2296, 2297 (appro-
priating funds to “the Department of Justice,” including $93,709,000
“[f ]or necessary expenses of the Office of Inspector General”). And the
Department of Justice is the “department . . . over which” OIG has re-
sponsibilities under the IG Act. See 5 U.S.C. app. §§ 4(a), 8E(b). Section
540 thus prohibits the Department from using any “funds provided in [the
CJS Appropriations Act]” to deny, prevent, or impede OIG’s access to
materials “available to the [D]epartment.”
It is likewise clear that the plain language of this funding restriction
bars the Department from using fiscal year 2016 funds to withhold mate-
rials from OIG pursuant to Title III, Rule 6(e), or section 626 of FCRA.
Section 540 states that the Department may not use fiscal year 2016 funds
to deny [OIG] timely access to any records, documents, or other ma-
terials available to the [D]epartment . . . , or to prevent or impede
[OIG’s] access to such records, documents, or other materials, under
any provision of law, except a provision of law that expressly refers
to the Inspector General and expressly limits the Inspector General’s
right of access.
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Effect of Appropriations Rider on Access of DOJ Inspector General to Information
CJS Appropriations Act § 540 (emphasis added). Title III, Rule 6(e), and
section 626 are plainly “provision[s] of law.” See, e.g., Republic of Iraq v.
Beaty, 556 U.S. 848, 856 (2009) (stating that a federal statute is “indis-
putably” a “provision of law”); Fund for Constitutional Gov’t v. Nat’l
Archives & Records Serv., 656 F.2d 856, 867 (D.C. Cir. 1981) (stating
that Rule 6(e) is “by any definition . . . a statute”). By withholding materi-
als pursuant to any of those provisions, the Department would be “de-
ny[ing]” or “prevent[ing]” access “under” such provisions. See, e.g.,
Webster’s New World College Dictionary 1574 (5th ed. 2014) (defining
“under” in similar context to mean “because of ”); Berghuis v. Thompkins,
560 U.S. 370, 390 (2010) (referring to “deny[ing] writs of habeas corpus
under [28 U.S.C.] § 2254” (emphasis added)); IG Access, 39 Op. O.L.C.
at 95 (referring to “withholding under Title III, Rule 6(e), and section
626” (emphasis added)). And Rule 6(e) and section 626 do not “refer to[]”
inspectors general at all, let alone “expressly limit[]” their access, while
the sole provision of Title III that refers to inspectors general does not
impose any limit on their right of access. See 18 U.S.C. § 2520(f ) (requir-
ing the head of a department or agency to “notify the Inspector General
with jurisdiction over the department or agency” if the head determines
that disciplinary action is not warranted for a violation of Title III, and to
“provide the Inspector General with the reasons for such determination”).
Furthermore, by prohibiting the Department from using fiscal year
2016 funds to withhold materials pursuant to Title III, Rule 6(e), or
section 626 of FCRA, the appropriations rider effectively prohibits the
Department from withholding materials pursuant to those statutes for the
remainder of fiscal year 2016. This is because in order to withhold
materials from OIG during fiscal year 2016, the Department would
invariably need to use funds appropriated by the CJS Appropriations
Act—if nothing else, because withholding would take time for which a
Department employee would be compensated by the CJS Appropriations
Act, or entail the use of resources (such as electricity, paper, or a com-
puter) funded by the Act. See CJS Appropriations Act tit. II, 129 Stat. at
2296 (appropriating funds for “salaries and expenses”); McHugh v.
Rubin, 220 F.3d 53, 57 (2d Cir. 2000) (“Even the simple act . . . of proc-
essing applications in accordance with a straightforward categorical rule
(for example, ‘all applications shall be denied’) would involve the use of
appropriated funds.”); Env’t Def. Ctr. v. Babbitt, 73 F.3d 867, 871–72
49
40 Op. O.L.C. 39 (2016)
(9th Cir. 1995) (“The use of any government resources—whether sala-
ries, employees, paper, or buildings—to accomplish a final listing would
entail government expenditure.”). 2 And incurring an obligation of ap-
propriated funds to withhold covered materials might well violate not
only section 540 but also the Anti-Deficiency Act, 31 U.S.C. § 1341 et
seq., a statute that subjects federal officers and employees who expend
or obligate funds in excess of appropriated amounts to administrative
and, in the case of knowing and willful violations, criminal penalties.
See id. §§ 1341(a), 1349(a), 1350; Applicability of the Antideficiency Act
to a Violation of a Condition or Internal Cap Within an Appropriation,
25 Op. O.L.C. 33, 35 (2001) (concluding that “when Congress has
expressly prohibited the expenditure of any funds for a particular pur-
pose” within an appropriation, a violation of that condition “would
generally constitute a violation of the Antideficiency Act”).
Moreover, for at least three reasons, we believe section 540’s prohibi-
tion on using fiscal year 2016 funds to withhold these materials from
2 We recognize that funds that are not “provided in” the CJS Appropriations Act, such
as funds held over from a previous fiscal year, are not subject to section 540. CJS Appro-
priations Act § 540. And it is possible that some Department employees with custody of
materials OIG requests might be paid with such funds. However, we understand that the
vast majority of the Department’s salaries and operations are funded by annual appropria-
tions. See, e.g., id. tit. II (appropriating funds for, among other things, “Salaries and
Expenses” for “General Administration,” the United States Parole Commission, “General
Legal Activities,” the Antitrust Division, United States Attorneys, the Foreign Claims
Settlement Commission, the Community Relations Service, the United States Marshals
Service, the National Security Division, the FBI, the Drug Enforcement Administration,
the Bureau of Alcohol, Tobacco, Firearms, and Explosives, and the Federal Prison
System). We further understand that these annually appropriated salaries include the
salaries of supervisory and senior leadership officials who have general authority to
obtain access to materials related to matters they supervise, and, in light of section 540,
the authority and obligation to obtain such access in order to disclose requested materials
to OIG without regard to the restrictions in Title III, Rule 6(e), or section 626 of FCRA.
See id.; 28 U.S.C. §§ 509, 510; see also 5 U.S.C. § 301. Thus, even if OIG requested
materials from the Department in the narrow circumstances in which such materials are
protected from disclosure to OIG by Title III, Rule 6(e), or section 626, and even if none
of the Department employees with custody of those materials were paid with fiscal year
2016 funds or used resources supported by such funds to process the request, OIG’s
request could always be elevated to a supervisory official who was paid with fiscal year
2016 funds and had the authority to obtain and disclose the materials notwithstanding the
restrictions in Title III, Rule 6(e), or section 626.
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Effect of Appropriations Rider on Access of DOJ Inspector General to Information
OIG—unlike the analogous provisions in the IG Act or section 218 of the
2015 Appropriations Act—is “‘clear’” and “‘unambiguous[],’” and there-
fore satisfies the clear statement rules described in our IG Access opinion.
IG Access, 39 Op. O.L.C. at 83, 95, 97. First, in our view, the only plausi-
ble construction of section 540 is that it forbids the use of fiscal year 2016
funds to withhold materials from OIG pursuant to Title III, Rule 6(e), or
section 626 of FCRA. As just discussed, section 540 states that the De-
partment may not use such funds to withhold materials from OIG “under
any provision of law” except a provision that expressly limits inspector
general access, and under no reasonable construction does that language
permit the Department to use fiscal year 2016 funds to withhold materials
under Title III, Rule 6(e), or section 626. Thus, unlike section 218 of the
2015 Appropriations Act, section 540 is not “susceptible to alternative
interpretations, one of which would permit withholding under Title III,
Rule 6(e), and section 626,” and it therefore cannot be construed in a
manner consistent with those statutes. Id. at 95; see The Last Best Beef,
LLC v. Dudas, 506 F.3d 333, 339 (4th Cir. 2007) (stating that where an
appropriations rider is “in absolute contradiction with” an earlier-enacted
statute, and an agency “simply cannot comply simultaneously” with both
enactments, the agency is “bound to follow Congress’s last word on the
matter even in an appropriations law” (internal quotation marks omitted)).
Second, unlike both section 218 and the IG Act, section 540 expressly
“address[es] potential conflicts with other statutory confidentiality provi-
sions.” IG Access, 39 Op. O.L.C. at 80; see id. at 96. It specifies that the
Department may not use fiscal year 2016 funds to “deny [OIG] timely
access . . . under any provision of law,” subject to one exception. CJS
Appropriations Act § 540. That language is similar to statutory grants of
access “notwithstanding any other law” that we have previously found
sufficient, at least in some circumstances, to override competing limita-
tions on disclosure. See, e.g., Brady Act Implementation Issues, 20 Op.
O.L.C. at 62 (stating that the Brady Act’s grant of access “notwithstand-
ing any other law” overrides the limitations on disclosure found in the
Privacy Act); IG Access, 39 Op. O.L.C. at 79–80. And it confirms that
Congress specifically intended to override other statutory limitations, and
did not merely countermand them inadvertently through broad language.
Cf. Ali, 552 U.S. at 220 n.4 (noting that “circumstances may counteract
the effect of expansive modifiers” like “all” and “any”); Hill, 437 U.S. at
51
40 Op. O.L.C. 39 (2016)
190 (explaining that the presumption against implied repeals applies with
special force to appropriations acts because otherwise “every appropria-
tions measure would be pregnant with prospects of altering substantive
legislation” and legislators would be required “to review exhaustively the
background of every authorization before voting on an appropriation”).
Third, section 540 sets forth only one circumstance in which it would
permit the Department to use fiscal year 2016 funds to withhold materials
from OIG: where a provision of law “expressly refers to the Inspector
General and expressly limits the Inspector General’s right of access.” CJS
Appropriations Act § 540. That narrow exception would be largely super-
fluous if section 540 did not otherwise prohibit the Department from
using such funds to withhold (and thus, in effect, bar the Department from
withholding) materials available to the Department pursuant to statutory
provisions. And the inclusion of this one exception implies that Congress
did not intend to allow others. See, e.g., Hill, 437 U.S. at 188 (stating that
because Congress “create[d] a number of limited ‘hardship exemptions’”
to the Endangered Species Act, “we must presume that these were the
only ‘hardship cases’ Congress intended to exempt”); cf. IG Access, 39
Op. O.L.C. at 83–84 (describing as “plausible” OIG’s argument that the
IG Act overrode other statutory prohibitions on disclosure based on a
negative inference from section 6(b)(1) of the IG Act, but concluding that
“the inference OIG invoke[d]” was not sufficiently strong to provide a
“clear manifestation of congressional intent” (internal quotation marks
omitted)). Moreover, section 8E(a) of the IG Act falls comfortably within
the exception’s scope. See 5 U.S.C. app. § 8E(a)(2) (stating that the At-
torney General “may prohibit the Inspector General from carrying out or
completing any audit or investigation, or from issuing any subpena, . . . to
prevent the disclosure of ” certain sensitive information (emphases add-
ed)). A straightforward interpretation of section 540 thus does not invite
the result we thought “implausible” when construing section 218 of the
2015 Appropriations Act—namely, an implied partial repeal of a section
of the IG Act itself. IG Access, 39 Op. O.L.C. at 93.
Finally, to return to the question you asked, it follows directly from this
prohibition on withholding that the Department may (and must) disregard
the limitations in Title III, Rule 6(e), and section 626 of FCRA when it
makes disclosures to OIG. As discussed above, for the remainder of the
fiscal year, section 540 effectively bars the Department from withholding
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Effect of Appropriations Rider on Access of DOJ Inspector General to Information
materials from OIG under Title III, Rule 6(e), or section 626. And in so
doing, section 540 effectively overrides the limitations in those statutes
with respect to disclosures to OIG during that period. It is therefore plain-
ly permissible—and indeed required—for the Department to disregard
those limitations in making disclosures to OIG for the remainder of the
fiscal year.
III.
For the foregoing reasons, we conclude that section 540 of the CJS Ap-
propriations Act effectively prohibits the Department, for the remainder
of fiscal year 2016, from denying OIG timely access to materials request-
ed by OIG, or preventing or impeding OIG’s access to such materials,
pursuant to Title III, Rule 6(e), or section 626 of FCRA. As a result, the
Department may (and must) disregard the limitations in those statutes in
making disclosures to OIG for the remainder of the fiscal year. We note
that, upon obtaining materials from the Department, OIG will be required
to “ensure compliance with statutory limitations on disclosure relevant to
the information” contained in those materials. CJS Appropriations Act
§ 540. We have not considered the nature of the Department’s and OIG’s
obligations after fiscal year 2016 with respect to materials to which OIG
obtains access under section 540.
KARL R. THOMPSON
Principal Deputy Assistant Attorney General
Office of Legal Counsel
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