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 ( 2016 )

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
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 Procedure; 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 (Dec. 18, 2015) (“CJS Appropriations Act”).1 In particular,
you have asked whether the Department 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 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 Inspector General’s right of access.” CJS Appropriations Act § 540. For the
1
See E-mail for Karl R. Thompson, Principal Deputy Assistant Attorney General, Office 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).
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Opinions of the Office of Legal Counsel in Volume 40
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 impeding 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 princi-
ples. With the exception of the subsequently enacted CJS Appropriations Act,
these statutes and principles are discussed in depth in this Office’s recent opinion,
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, 39 Op. O.L.C. __ (July 20,
2015) (“OIG Access Opinion”) (available at http://www.justice.gov/olc/opinions.
htm).
The Inspector General Act of 1978, 5 U.S.C. app. (“IG Act”), established an
Office of Inspector General in a large number of federal agencies. 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 subpena . . . if the Attorney 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.” OIG Access Opinion
at *7.
As we explained in our OIG Access Opinion, however, the IG Act is “not in all
circumstances the only statute that governs OIG’s access to Department materi-
als.” Id. at *6. 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
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Authority of DOJ to Disclose Statutorily Protected Materials to Its Inspector General
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 exception.
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 materials to OIG
in “most, but not all, of the circumstances in which OIG might request [them].”
OIG Access Opinion at *3; see id. at *8–46 (examining each statute in detail to
identify the circumstances in which it permits disclosure to OIG). In particular,
Title III and Rule 6(e) allow Department 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 *45.
But the statutes do not permit disclosures that “have either an attenuated or no
connection” with the Department’s criminal law enforcement activities, or the
approval or conduct of foreign counterintelligence investigations. Id. 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 disclo-
sure, 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, respec-
tively, that officials would “violat[e]” the law by disclosing, “must not disclose,”
or “may not disseminate” the requested materials. See id. at *7.
In our OIG 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 *47. 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
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private communications lawfully wiretapped by the government. Id. at *47–48.
And we concluded in the OIG 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 *49.
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 *50 (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 which disclosure” is permitted, and “the lawful
recipients of information.” Id. at *52. 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 disclosure Congress set
forth in” Title III, Rule 6(e), and section 626. Id. at *53.
Applying these two principles, we concluded that the IG Act does not contain
such a clear statement. Id. at *54. 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
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 confiden-
tial information.” Id. (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 *55
(quoting Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 220 n.4 (2008)); see id.
at *55–56. 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
section 6(a)(1) to be ‘automatic’ and free of any ‘existing statutory restriction[s],’”
we ultimately concluded that the “negative inference” that OIG identified was not
“unequivocal enough to establish a clear manifestation of congressional intent,” id.
at *57 (citations omitted), 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
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Authority of DOJ to Disclose Statutorily Protected Materials to Its Inspector General
the provisions of other statutes, such as the Privacy Act,’” id. at *59 (quoting S. Rep.
No. 95-1071, at 33–34 (1978)).
Our OIG 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 (Dec. 16, 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. We acknowledged that OIG had made “substantial” arguments that this
rider required the Department to grant it access to materials otherwise protected by
Title III, Rule 6(e), and section 626. OIG Access Opinion at *64. But we ultimate-
ly 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
information.
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. First, this phrase could be interpreted to prohibit
Department officials from denying OIG access to materials except under “limita-
tions” on OIG’s access that “appear in section 6(a) itself or that expressly refer to
that section”—a reading 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 interpret-
ed—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 Depart-
ment to withhold records under section 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. at *66.
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Opinions of the Office of Legal Counsel in Volume 40
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 repealed (among other
things) section 8E of the IG Act itself, a provision that “does not refer explicitly to
section 6(a).” Id. at *65. 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 untenable, we went
on to consider the second and third readings we had identified. The second interpre-
tation, 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. Although “not the
most natural reading 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 *66. “Statutes like Title III, Rule 6(e), and section 626” of
FCRA we explained, “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.” 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 section 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 6(e), and section 626 of
FCRA, section 218 would—consistent with the principles we had discussed
earlier—need to “contain a clear congressional statement that it was intended to
have that effect.” Id. at *66. 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 *68, 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 *66. 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 imposed 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. “[T]here is a ‘very strong presumption’ that appropri-
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Authority of DOJ to Disclose Statutorily Protected Materials to Its Inspector General
ations measures do not ‘amend substantive law,’ a presumption that may be
overcome only by ‘unambiguous[]’ evidence to the contrary.” Id. at *67 (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.” OIG Access Opinion at *67. 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 *67–68 (quoting 160 Cong. Rec. H9345 (daily ed. Dec. 11,
2014)).
Several months after we issued the OIG Access Opinion, Congress enacted the
Consolidated Appropriations Act, 2016, Pub. L. No. 114-113 (Dec. 18, 2015).
Division B of that statute, the CJS Appropriations Act, appropriates funds to the
Department of Justice and OIG, as well as several additional entities, “for the
fiscal year ending September 30, 2016,” commonly referred to as fiscal year 2016.
Consolidated Appropriations Act, 2016, § 5; see CJS Appropriations Act, tit. II.
Section 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.
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Opinions of the Office of Legal Counsel in Volume 40
CJS Appropriations Act § 540. 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 Appropriations Act, 2016, § 4
(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 OIG Access Opinion (and as discussed above), an appro-
priations act may be construed to override the limitations on disclosure 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. OIG Access
Opinion at *66–67; supra pp. 6–7. We conclude that section 540 of the CJS
Appropriations Act 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 restriction on
the Department’s use of fiscal year 2016 funds to deny, prevent, 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.” CJS Appropriations Act § 540. 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 (“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
(appropriating 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 responsibilities 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 materials 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 materials available to the [D]epartment . . . , or to
prevent or impede [OIG’s] access to such records, documents, or other materials,
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Authority of DOJ to Disclose Statutorily Protected Materials to Its Inspector General
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.” 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 “indisputably” 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 withhold-
ing materials 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));
OIG Access Opinion at *66 (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) (requiring the head of a department or
agency to “notify the Inspector General with jurisdiction over the department or
agency” if the head determines the 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 Appro-
priations 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 computer) funded by the
Act. See CJS Appropriations Act, tit. II (appropriating funds for “salaries and
expenses”); McHugh v. Rubin, 220 F.3d 53, 57 (2d Cir. 2000) (“Even the simple
act . . . of processing applications in accordance with a straightforward categorical
rule (for example, ‘all applications shall be denied’) would involve the use of
appropriated funds.”); Envt’l Def. Ctr. v. Babbitt, 73 F.3d 867, 871–72 (9th Cir.
1995) (“The use of any government resources—whether salaries, employees,
paper, or buildings—to accomplish a final listing would entail government
expenditure.”).2 And incurring an obligation of appropriated funds to withhold
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 Appropriations Act § 540. And it is
possible that some Department employees with custody of materials OIG requests might be paid with such
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Opinions of the Office of Legal Counsel in Volume 40
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 purpose” within an appropriation, a
violation of that condition “would generally constitute a violation of the Antidefi-
ciency Act”).
Moreover, for at least three reasons, we believe section 540’s prohibition on
using fiscal year 2016 funds to withhold these materials from OIG—unlike the
analogous provisions in the IG Act or section 218 of the 2015 Appropriations
Act—is “clear” and “unambiguous[],” and therefore satisfies the clear statement
rules described in our OIG Access Opinion. OIG Access Opinion at 53, 66, 68.
First, in our view, the only plausible 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 Department 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 *66; see The Last Best Beef, LLC v. Dudas, 506 F.3d 333, 339 (4th Cir. 2007)
funds. However, we understand that the vast majority of the Department’s salaries and operations are
funded by annual appropriations. 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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Authority of DOJ to Disclose Statutorily Protected Materials to Its Inspector General
(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” (citations and international quotation marks
omitted)).
Second, unlike both section 218 and the IG Act, section 540 expressly “ad-
dress[es] potential conflicts with other statutory confidentiality provisions.” OIG
Access Opinion at *54; see id. at *67. 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
limitations 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 “notwithstanding any
other law” overrides the limitations on disclosure found in the Privacy Act); OIG
Access Opinion at *54–55. 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 190 (explaining that the presumption against implied
repeals applies with special force to appropriations acts because otherwise “every
appropriations 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 superfluous if section 540 did not otherwise prohibit the
Department from using such funds to withhold (and thus, in effect, bar the Depart-
ment 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. OIG Access Opinion at 57 (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 manifesta-
tion of congressional intent” (citation and 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 Attorney General “may prohibit
the Inspector General from carrying out or completing any audit or investigation, or
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Opinions of the Office of Legal Counsel in Volume 40
from issuing any subpena . . . to prevent the disclosure of” certain sensitive infor-
mation (emphases added)). 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. OIG Access Opinion at *65.
Finally, to return to the question you asked, it follows directly from this prohi-
bition on withholding that the Department may (and must) disregard the limita-
tions 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 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 plainly 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 Appropria-
tions Act effectively prohibits the Department, for the remainder of fiscal year
2016, from denying OIG timely access to materials requested by OIG, or prevent-
ing 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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