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

The Department of Justice Inspector General’s Access to

Information Protected by the Federal Wiretap Act,

Rule 6(e) of the Federal Rules of Criminal Procedure,

and Section 626 of the Fair Credit Reporting Act

Department of Justice officials may disclose information protected by the Federal Wiretap Act (Title III

of the Omnibus Crime Control and Safe Streets Act of 1968), Rule 6(e) of the Federal Rules of

Criminal Procedure, and section 626 of the Fair Credit Reporting Act to the Department’s Office of

Inspector General (“OIG”) in connection with many, but not all, of OIG’s investigations and reviews.

Section 6(a)(1) of the Inspector General Act of 1978 does not supersede the limitations on disclosure

contained in Title III, Rule 6(e), and section 626.

Section 218 of the Consolidated and Further Continuing Appropriations Act, 2015, also does not

supersede the limitations on disclosure contained in Title III, Rule 6(e), and section 626.

July 20, 2015

MEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL *

You have asked whether the Department of Justice (the “Department”) may

lawfully provide the Department’s Office of the Inspector General (“OIG”) with

access to documents containing certain kinds of statutorily protected information. 1

In particular, you have asked whether the Department may grant OIG access, in

connection with OIG audits, investigations, and reviews, to information protected

by the Federal Wiretap Act, Title III of the Omnibus Crime Control and Safe Streets

Act of 1968, as amended, 18 U.S.C. §§ 2510–2522 (“Title III”); Rule 6(e) of the

Federal Rules of Criminal Procedure (“Rule 6(e)”); and section 626 of the Fair

Credit Reporting Act, 15 U.S.C. § 1681u (“FCRA”). Subject to certain exceptions,

*

Editor’s Note: Since this opinion was issued, Congress amended section 6(a) of the Inspector

General Act to provide that inspectors general are authorized “to have timely access to all records,

reports, audits, reviews, documents, papers, recommendations, or other materials available to the

applicable establishment which relate to the programs and operations with respect to which that Inspector

General ha responsibilities under this Act . . . notwithstanding any other provision of law, except

pursuant to any provision of law enacted by Congress that expressly . . . refers to the Inspector General;

and . . . limits the right of access of the Inspector General.” Inspector General Empowerment Act of 2016,

Pub. L. No. 114-317, sec. 5(1), § 6(a)(1)(A), (B) (codified at 5 U.S.C. app. § 6(a)(1)(A), (B)). The

amended statute also provides a special procedure for access to “Federal grand jury materials protected

from disclosure pursuant to rule 6(e) of the Federal Rules of Criminal Procedure.” Id. § 6(a)(1)(C)). We

analyzed inspector general access under statutory provisions similar to those in the amended section 6(a)

in Authority of the Department of Justice to Disclose Statutorily Protected Materials to Its Inspector

General in Light of Section 540 of the Commerce, Justice, Science, and Related Agencies Appropriations

Act, 2016, 40 Op. O.L.C. __ (Apr. 27, 2016), http://www.justice.gov/olc/opinions.htm.

1

See Memorandum for Karl Thompson, Acting Assistant Attorney General, Office of Legal Counsel,

from James M. Cole, Deputy Attorney General (May 24, 2014) (“Opinion Request”). Our Office received

a request for an opinion on the same subject in 2011, but that request was withdrawn. See Letter for

Cynthia Schnedar, Acting Inspector General, from James M. Cole, Deputy Attorney General (Mar. 16,

2012). In preparing this opinion, we have considered views submitted in connection with both requests.

1

Opinions of the Office of Legal Counsel in Volume 39

each of these statutes restricts the disclosure of particular categories of information:

Title III limits the Department’s authority to disclose the contents of intercepted

communications; Rule 6(e) limits the Department’s authority to disclose grand jury

materials; and section 626 of FCRA limits the authority of the Federal Bureau of

Investigation (“FBI”) to disclose consumer information obtained pursuant to

National Security Letters issued under section 626. At the same time, however,

section 6(a)(1) of the Inspector General Act of 1978, as amended, 5 U.S.C. app. (the

“IG Act”), authorizes OIG “to have access to all records, reports, audits, reviews,

documents, papers, recommendations, or other material” available to the

Department and relevant to the programs and operations OIG is charged with

reviewing. 5 U.S.C. app. § 6(a)(1).

In views letters submitted in connection with the preparation of this opinion,

OIG, together with certain other interested entities, argues that section 6(a)(1) of the

IG Act grants it an unqualified right of access to Department records relevant to its

audits, investigations, and reviews, notwithstanding any limitations on disclosure

imposed by Title III, Rule 6(e), or section 626 of FCRA. OIG also argues that, even

leaving section 6(a)(1) aside, the relevant statutory exceptions in Title III, Rule 6(e),

and section 626 permit the Department and its components to disclose protected

information to OIG when that information is pertinent to its audits, investigations,

or reviews. Certain other Department components disagree, arguing that the

statutory exceptions in Title III, Rule 6(e), and section 626 permit disclosure of

protected information to OIG only in a limited set of circumstances, and that the

limits on disclosure apply even when OIG requests material under section 6(a)(1)

of the IG Act. 2

2

See E-mail for John E. Bies, Deputy Assistant Attorney General, Office of Legal Counsel, from

William M. Blier, General Counsel, OIG (Apr. 29, 2015 6:37 PM) (“OIG 2015 E-mail”); Memorandum

for the Acting Assistant Attorney General, Office of Legal Counsel, from Michael E. Horowitz, Inspector

General (June 24, 2014) (“OIG 2014 Memorandum”); Memorandum for the Attorney General from

Cynthia A. Schnedar, Acting Inspector General (Dec. 16, 2011) (“OIG Grand Jury Memorandum”);

Memorandum for the Deputy Attorney General from Cynthia A. Schnedar, Acting Inspector General

(Dec. 16, 2011) (“OIG Title III Memorandum”); Memorandum for the Deputy Attorney General from

Cynthia A. Schnedar, Acting Inspector General (Dec. 6, 2011) (“OIG FCRA Memorandum”);

Memorandum for Caroline D. Krass, Principal Deputy Assistant Attorney General, Office of Legal

Counsel, from Carol F. Ochoa, Assistant Inspector General, Oversight and Review Division (Mar. 9,

2011) (“OIG Supplemental Memorandum”); Memorandum for Paul P. Colborn, Special Counsel, Office

of Legal Counsel, from Carol F. Ochoa, Assistant Inspector General, Oversight and Review Division

(Dec. 17, 2010) (“OIG Memorandum”); see also Memorandum for John Bies, Deputy Assistant Attorney

General, Office of Legal Counsel, from Leslie R. Caldwell, Assistant Attorney General, Criminal

Division (July 14, 2014); Letter for John E. Bies, Deputy Assistant Attorney General, Office of Legal

Counsel, from Phyllis K. Fong, Chair, and Lynne A. McFarland, Vice Chair, Council of the Inspectors

General on Integrity and Efficiency (“CIGIE”) (June 24, 2014); Memorandum for John E. Bies, Deputy

Assistant Attorney General, Office of Legal Counsel, from G. Bradley Weinsheimer, Deputy Counsel,

Office of Professional Responsibility (June 24, 2014); E-mail for John E. Bies, Deputy Assistant

Attorney General, Office of Legal Counsel, from Jocelyn Aqua, National Security Division (Mar. 2, 2012

3:54 PM) (“NSD E-mail”); Memorandum for Virginia A. Seitz, Assistant Attorney General, Office of

2

Department of Justice Inspector General’s Access to Information

For the reasons set forth below, we conclude that the statutory exceptions in

Title III, Rule 6(e), and section 626 of FCRA permit the Department to disclose to

OIG the covered information it seeks in most, but not all, of the circumstances in

which OIG might request it. In particular, Title III permits Department officials to

disclose to OIG the contents of intercepted communications when doing so could

aid the disclosing official or OIG in the performance of their duties related to law

enforcement, including duties related to Department leadership’s supervision of law

enforcement activities on a programmatic or policy basis. Rule 6(e) permits

disclosure of grand jury materials to OIG if a qualifying attorney determines that

such disclosure could assist her in the performance of her criminal law enforcement

duties, including any supervisory law enforcement duties she may have. And FCRA

permits the FBI to disclose to OIG consumer information obtained pursuant to

section 626 if such disclosure could assist in the approval or conduct of foreign

counterintelligence investigations, including in the supervision of such

investigations on a programmatic or policy basis. In our view, however, Title III and

Rule 6(e) forbid disclosures that have either an attenuated or no connection with the

conduct of the Department’s criminal law enforcement programs or operations, and

section 626 of FCRA forbids disclosures that have either an attenuated or no

connection with the approval or conduct of foreign counterintelligence

investigations.

We further conclude that, to the extent that Title III, Rule 6(e), and section 626

prohibit Department officials from disclosing information to OIG, section 6(a)(1)

of the IG Act does not override these prohibitions. Under longstanding interpretive

principles, general access provisions like section 6(a)(1) are generally construed not

to override specific, carefully drawn limitations on disclosure like Title III,

Rule 6(e), and section 626 unless Congress has clearly indicated that it intends the

general access provision to have that effect. And in our view, the text of the IG Act

contains no clear indication that Congress intended section 6(a)(1) to override

Title III, Rule 6(e), or section 626. The Act’s legislative history, moreover,

Legal Counsel, from Lanny A. Breuer, Assistant Attorney General, Criminal Division (Feb. 16, 2012);

Letter for John E. Bies, Deputy Assistant Attorney General, Office of Legal Counsel, from Phyllis K.

Fong, Chair, and Carl Clinefelter, Vice Chair, CIGIE (Oct. 7, 2011); Memorandum for the Office of the

Deputy Attorney General, from Patrick W. Kelley, Acting General Counsel, FBI (Oct. 5, 2011);

Memorandum for John Bies, Deputy Assistant Attorney General, Office of Legal Counsel, from Lanny

A. Breuer, Assistant Attorney General, Criminal Division (Apr. 12, 2011); Memorandum for Jonathan

G. Cedarbaum, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Valerie

Caproni, General Counsel, FBI (Jan. 13, 2011) (“FBI Memorandum”).

In addition, although the Office does not solicit views from outside the Executive Branch, we

received a letter concerning the issues addressed in this opinion from Senator Charles E. Grassley and

Representative John Conyers, then-Ranking Members of the Senate and House Committees on the

Judiciary. See Letter for Karl R. Thompson, Acting Assistant Attorney General, Office of Legal Counsel,

from Charles E. Grassley, Ranking Member, Committee on the Judiciary, U.S. Senate, and John Conyers,

Ranking Member, Committee on the Judiciary, U.S. House of Representatives (Oct. 10, 2014). We

appreciate Senator Grassley’s and Representative Conyers’ interest in these issues, and have considered

their views in preparing this opinion.

3

Opinions of the Office of Legal Counsel in Volume 39

affirmatively indicates that Congress expected an inspector general’s right of access

to be subject to statutory limits on disclosure.

In reaching these conclusions, our Office’s role has not been to decide what

access OIG should receive as a matter of policy. Rather, we have endeavored to

determine as a matter of law, using established tools of statutory construction, how

best to reconcile the strong privacy protections embodied in Title III, Rule 6(e), and

section 626 with the interest in access reflected in section 6(a)(1) of the IG Act.

This opinion has four parts. In Part I, we set forth some statutory background

related to the IG Act, and explain the potential statutory conflict that arises when

OIG, relying on the IG Act’s general access provision, requests material that is also

covered by the nondisclosure provisions in Title III, Rule 6(e), or section 626 of

FCRA. In Part II, we examine Title III, Rule 6(e), and section 626 to determine

whether the exceptions in those statutes permit disclosure of the protected materials

OIG seeks, thereby avoiding the potential conflict between those statutes and the IG

Act. In Part III, having concluded that this conflict cannot be avoided in all

circumstances, we explain why, in our view, the general access provision in section

6(a)(1) of the IG Act does not override the specific protections of sensitive informa-

tion contained in Title III, Rule 6(e), and section 626. Finally, in Part IV, we discuss

a Fiscal Year 2015 appropriations rider concerning the disclosure of Department

materials to OIG and conclude that it too does not abrogate the specific protections

of sensitive information found in those statutes. 3

I.

Congress enacted the IG Act in 1978 to “create independent and objective units”

within the Executive Branch that would promote the integrity of executive agencies

and keep executive officials and Congress fully informed about their operations.

5 U.S.C. app. § 2. To achieve these goals, the Act created an Office of Inspector

General in a large number of federal agencies. Id. §§ 2(A), 8G(a)–(b), 12(2). 4 Each

office is led by an inspector general who is charged with auditing, investigating,

detecting fraud and abuse in, and making recommendations and reports about the

agency’s “programs and operations.” Id. §§ 3(a), 4(a), 5. Each inspector general

must “keep the head of [his agency] and the Congress fully and currently informed”

3

You have asked only whether it would be “lawful[]” for the Department to provide OIG information

protected by Title III, Rule 6(e), and section 626 of FCRA. Opinion Request. Accordingly, we do not

address in this opinion whether and, if so, under what circumstances the Department could lawfully

withhold information it is legally permitted to disclose.

4

The IG Act uses the term “establishment” to refer to those enumerated agencies, departments,

commissions, boards, and corporations in which Congress created an Office of the Inspector General.

5 U.S.C. app. § 12(2). The Act also refers to “designated Federal entit[ies],” defined to include a different

list of government corporations and other entities, and directs that “there shall be established and

maintained in each designated Federal entity an Office of Inspector General.” Id. § 8G(b). Throughout

this opinion, we will refer to the federal establishments and entities subject to the IG Act, collectively,

as “agencies.”

4

Department of Justice Inspector General’s Access to Information

about fraud, abuse, deficiencies, and other serious problems in “the administration

of programs and operations administered or financed by such” agency, and

“recommend corrective action” to address any problems he identifies. Id. § 4(a)(5).

Inspectors general must “report to” and are placed “under the general supervision

of” the heads of their agencies. However, the head of an agency generally may not

“prevent or prohibit the Inspector General from initiating, carrying out, or

completing any audit or investigation.” Id. § 3(a).

Pursuant to their statutory mandate, inspectors general engage in a wide variety

of audits, investigations, and reviews. The Department’s OIG, for example, con-

ducts investigations of suspected criminal wrongdoing by Department employees;

investigations of administrative misconduct that may or may not rise to the level of

criminal wrongdoing; and broader reviews of Department programs and operations

that seek to assess whether the programs are lawful, well-run, or otherwise in the

public interest. See Office of the Inspector General, U.S. Dep’t of Justice,

Semiannual Report to Congress: Apr. 1, 2014–Sept. 30, 2014, at 13–14 (Oct. 31,

2014) (“Semiannual Report”); 28 C.F.R. § 0.29a(b)(2), (4). The Department’s OIG

also conducts financial and administrative audits of Department components. See

Semiannual Report at 13; 28 C.F.R. § 0.29a(b)(1). Significantly, however, while the

IG Act affords inspectors general broad authority to investigate an agency’s

programs and operations, it does not in most cases allow inspectors general to

conduct activities “constituting an integral part of the programs involved,” Inspector

General Authority to Conduct Regulatory Investigations, 13 Op. O.L.C. 54, 62

(1989) (“Authority to Conduct Regulatory Investigations”), and it prohibits the

heads of federal agencies from transferring to inspectors general any of the agency’s

“program operating responsibilities,” 5 U.S.C. app. § 9(a). 5

The IG Act also grants inspectors general several enumerated authorities that

help them carry out their statutory duties, such as the authority to issue subpoenas,

take sworn testimony, and hire staff. See id. § 6(a)(4), (5), (7). Especially relevant

here is the authority to obtain records and other materials from the agency over

which an inspector general has investigative jurisdiction. This authority is set forth

in section 6(a)(1), which provides:

[E]ach Inspector General, in carrying out the provisions of this Act, is

authorized . . . to have access to all records, reports, audits, reviews,

documents, papers, recommendations, or other material available to

the applicable [agency] which relate to programs and operations with

5

Some of OIG’s statutory responsibilities, such as conducting investigations of suspected criminal

wrongdoing by Department employees, see 5 U.S.C. app. § 8E(b)(2), (4), may involve the same kinds of

activities as the “program operating responsibilities” of other Department components. The IG Act does

not prevent OIG from carrying out these activities pursuant to its statutory authority. See Authority to

Conduct Regulatory Investigations, 13 Op. O.L.C. at 66–67 & n.21.

5

Opinions of the Office of Legal Counsel in Volume 39

respect to which that Inspector General has responsibilities under this

Act.

Id. § 6(a)(1). In addition to granting each inspector general access to materials

available to his agency and within his investigative jurisdiction, this provision

implicitly imposes a corresponding duty on the applicable agency to provide the

inspector general with such access upon request.

In the case of the Department (and certain other agencies), however, the IG Act

qualifies this broad disclosure requirement. As originally enacted, the IG Act did not

establish an Office of the Inspector General in the Justice Department. When Congress

extended the Act’s provisions to the Department in 1988, see Inspector General Act

Amendments of 1988, Pub. L. No. 100-504, § 102(c), 102 Stat. 2515, 2515–16,

Congress limited OIG’s authority to investigate matters involving certain kinds of

information, in recognition of the sensitivity of much of the Department’s work, see

H.R. Rep. No. 100-1020, at 24 (1988) (Conf. Rep.). Specifically, section 8E(a)(1) of

the Act provides that the Department’s Inspector General “shall be under the authority,

direction, and control of the Attorney General with respect to audits or investigations,

or the issuance of subpenas, which require access to sensitive information concerning”

certain enumerated matters, such as “ongoing civil or criminal investigations or

proceedings,” “undercover operations,” and “other matters the disclosure of which

would constitute a serious threat to national security.” 5 U.S.C. app. § 8E(a)(1).

Section 8E(a)(2) similarly provides that the Attorney General may “prohibit the

Inspector General from carrying out or completing any audit or investigation . . . if the

Attorney General determines that such prohibition is necessary to prevent the

disclosure of any information described under [section 8E(a)(1)] or to prevent the

significant impairment to the national interests of the United States.” Id. § 8E(a)(2).

Section 8E thus provides a mechanism through which the Attorney General can

“prevent the disclosure” of certain sensitive information to which OIG would

otherwise be entitled under section 6(a)(1). Id.

The IG Act, moreover, is not in all circumstances the only statute that governs

OIG’s access to Department materials. As noted above, in conducting its audits,

investigations, and reviews, OIG has sometimes requested materials that include

the contents of wire, oral, or electronic communications the Department has

intercepted pursuant to Title III; information the Department has acquired in the

course of grand jury proceedings; and consumer information the FBI has obtained

using National Security Letters issued under section 626 of FCRA. And while

such information falls within the broad terms of section 6(a)(1) of the IG Act, its

use and disclosure is also regulated, and in many circumstances prohibited, by

Title III, Rule 6(e), and section 626. 6 Specifically, as we discuss in more detail

6

Because Congress enacted Rule 6(e) in 1977, see Pub. L. No. 95-78, § 2, 91 Stat. 319, 319, it is “by

any definition . . . a statute.” Fund for Constitutional Gov’t v. Nat’l Archives & Records Serv., 656 F.2d

6

Department of Justice Inspector General’s Access to Information

below, Title III bars investigative and law enforcement officers from using or

disclosing the contents of lawfully intercepted communications unless a statutory

exception to Title III’s disclosure prohibitions applies, see 18 U.S.C. § 2517, and

imposes administrative, civil, and sometimes criminal sanctions for unauthorized

disclosure, see id. §§ 2520(a), (f), (g), 2511(1)(e), (4)(a). Rule 6(e) prohibits

“attorney[s] for the government” and other specified individuals from disclosing

“a matter occurring before the grand jury” except pursuant to a specific exception,

Fed. R. Crim. P. 6(e)(2)(B), and makes a knowing violation of that prohibition

punishable “as a contempt of court,” id. 6(e)(7). And section 626 of FCRA

prohibits the FBI from disclosing consumer information obtained pursuant to a

National Security Letter (a kind of written request for information in connection

with a counterterrorism or intelligence investigation) except as authorized by one

of the exceptions provided in the statute, see 15 U.S.C. § 1681u(f), and makes

unauthorized disclosure a basis for civil damages and disciplinary action, see id.

§ 1681u(i)–(j).

As a result, in responding to OIG requests for materials covered by Title III,

Rule 6(e), or section 626, Department officials face potentially conflicting statutory

directives. Title III, Rule 6(e), and section 626 prohibit the Department from

disclosing such materials—on pain of contempt, administrative and civil sanctions,

and sometimes criminal penalties—unless a statutory exception applies. The IG Act,

in contrast, requires the Department to disclose “all” materials that are available to

the Department, relate to an OIG review of programs or operations within its

investigative jurisdiction, and are not covered by a determination to withhold them

under section 8E.

Where two statutes govern the same subject matter, the Supreme Court has

instructed that the statutes are to be read in pari materia and construed, where

possible, as part of a single and coherent regulatory scheme. See Morton v. Mancari,

417 U.S. 535, 551 (1974) (“When there are two acts upon the same subject, the rule

is to give effect to both if possible.” (quoting United States v. Borden Co., 308 U.S.

188, 198 (1939))); see also, e.g., FCC v. NextWave Personal Commc’ns, 537 U.S.

293, 304 (2003); J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124,

143–44 (2001); Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528,

533 (1995); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018 (1984). Only where

a harmonious construction of two statutes is impossible should one be construed as

overriding or implicitly repealing the other. Morton, 417 U.S. at 551. Accordingly,

before considering whether the general access requirement in section 6(a)(1) of the

IG Act overrides the disclosure restrictions in Title III, Rule 6(e), and section 626

of FCRA, we examine the latter three statutes to determine whether and to what

extent they permit disclosures to OIG.

856, 867 (D.C. Cir. 1981) (concluding that grand jury information protected from disclosure by Rule 6(e)

is information “specifically exempted from disclosure by statute” within the meaning of Exemption 3 of

the Freedom of Information Act, 5 U.S.C. § 552(b)(3)).

7

Opinions of the Office of Legal Counsel in Volume 39

II.

A.

We begin with Title III. Congress enacted this statute in the wake of the Supreme

Court’s decisions in Berger v. New York, 388 U.S. 41 (1967), and Katz v. United

States, 389 U.S. 347 (1967), which held that electronic surveillance constitutes a

search subject to the limits imposed by the Fourth Amendment. In response to these

rulings, Congress created a comprehensive statutory scheme governing the inter-

ception, use, and disclosure of wire, oral, and electronic communications, see 18

U.S.C. §§ 2510–2522, thereby establishing a mechanism through which law enforce-

ment officials could conduct electronic surveillance in a manner that “me[t] the

constitutional requirements” enunciated in Berger and Katz. United States v. U.S. Dist.

Court for E. Dist. of Mich., S. Div., 407 U.S. 297, 302 (1972); see Scott v. United

States, 436 U.S. 128, 130 (1978) (noting that Title III was intended to “provide law

enforcement officials with some of the tools thought necessary to combat crime

without unnecessarily infringing upon the right of individual privacy”). Title III

permits the Attorney General and other Department leadership officials to authorize

investigative or law enforcement officers to apply for court orders allowing them to

intercept wire, oral, or electronic communications. See 18 U.S.C. §§ 2510, 2516(1),

(3), 2518(1)(a); see also id. § 2516(2) (authorizing applications by certain state

attorneys). And it permits courts to grant such orders if the government makes a series

of procedural and evidentiary showings, including a showing that the interception

“may provide or has provided” evidence of any of dozens of enumerated federal

offenses (or, for the interception of an electronic communication, evidence of “any

Federal felony”). Id. §§ 2516(1), (3), 2518.

Once an investigative or law enforcement officer has lawfully intercepted a

communication, Title III prohibits that officer from further disclosing the contents

of the communication—and, as noted above, subjects her to potential

administrative, civil, or criminal sanctions if she does so—unless section 2517

authorizes the disclosure. See Title III Electronic Surveillance Material and the

Intelligence Community, 24 Op. O.L.C. 261, 270–71 n.12, 272 (2000) (“Title III

Intelligence Community”); 18 U.S.C. § 2520(a), (f), (g) (authorizing civil damages

and administrative discipline for willful disclosures); id. § 2511(1)(e), (4)(a)

(authorizing criminal penalties for certain intentional disclosures). One provision in

section 2517, section 2517(1), is particularly relevant here. It provides that

[a]ny investigative or law enforcement officer who, by any means

authorized by this chapter, has obtained knowledge of the contents of

any wire, oral, or electronic communication, or evidence derived

therefrom, may disclose such contents to another investigative or law

enforcement officer to the extent that such disclosure is appropriate to

the proper performance of the official duties of the officer making or

receiving the disclosure.

8

Department of Justice Inspector General’s Access to Information

18 U.S.C. § 2517(1). This provision thus permits disclosure of the contents of a

lawfully intercepted communication if the disclosure is made (1) by an

“investigative or law enforcement officer,” (2) “to another investigative or law

enforcement officer,” (3) “to [an] extent . . . appropriate to the proper performance

of the official duties of the officer making or receiving the disclosure.” A separate

provision in Title III, section 2510(7), defines an “[i]nvestigative or law

enforcement officer” as “any officer of the United States or of a State or political

subdivision thereof, who is empowered by law to conduct investigations of or to

make arrests for offenses enumerated in this chapter, and any attorney authorized

by law to prosecute or participate in the prosecution of such offenses.” Id. § 2510(7).

OIG contends that section 2517(1) authorizes Department investigative and law

enforcement officers to disclose the contents of lawfully intercepted

communications to OIG whenever OIG deems such information pertinent to any of

its investigations. It observes that, in a prior opinion, this Office “determined that

OIG agents . . . qualify as ‘investigative officers’ authorized to disclose or receive

Title III information.” OIG 2014 Memorandum at 11 (citing Whether Agents of the

Department of Justice Office of Inspector General are “Investigative or Law

Enforcement Officers” Within the Meaning of 18 U.S.C. § 2510(7), 14 Op. O.L.C.

107, 109–10 (1990) (“Investigative Officers”)). And OIG contends that disclosures

to assist in its audits, investigations, and reviews are invariably “appropriate to the

proper performance of the official duties of the officer making or receiving the

disclosure” for two different (and in its view independently sufficient) reasons. First,

it argues that under an ordinary understanding of the term “official duties,”

disclosing Title III materials to OIG will always be appropriate to both the official

duties of the Department officials disclosing the materials (because those officials

have a duty to cooperate with OIG’s audits, investigations, and reviews) and the

official duties of the OIG agents receiving the materials (because the IG Act gives

them a duty to investigate the Department). Second, OIG argues that even if “official

duties” are limited to duties related to law enforcement—as this Office concluded

in a 2000 opinion—all of OIG’s audits, investigations, and reviews still qualify for

disclosure, because they involve either investigations of alleged criminal

wrongdoing by Department employees, investigations of alleged administrative

misconduct that might lead to discovery of criminal violations, or reviews of the

Department’s criminal law enforcement programs for purposes of “supervision or

oversight.” OIG Title III Memorandum at 2; see OIG 2014 Memorandum at 10–12;

cf. OIG Supplemental Memorandum at 35–38.

We address these arguments in the two sections that follow. In the first section,

we conclude that OIG is correct that OIG agents qualify as “investigative officers”

who may receive Title III information, but—consistent with the conclusion in our

2000 opinion—disagree with OIG’s broad argument that Title III permits disclosure

in connection with duties unrelated to law enforcement. In the second section, we

substantially agree with OIG’s narrower argument—namely, that disclosures to

OIG agents will frequently assist the official law-enforcement-related duties of

9

Opinions of the Office of Legal Counsel in Volume 39

either the officer making or the officer receiving the disclosure. In particular, we

conclude that Title III permits disclosure in connection with OIG reviews that

concern, or are designed to develop recommendations about, the conduct of the

Department’s criminal law enforcement programs, policies, or practices. As we

explain, many—but not all—OIG investigations and reviews are likely to qualify

for disclosure under this standard.

1.

OIG’s first argument is that section 2517(1) invariably permits Department

officials to disclose Title III information to OIG agents. See OIG 2014

Memorandum at 10–12. We agree that disclosures between Department officials

and OIG agents generally comply with the statute’s first two requirements:

Numerous officers of the Department are “investigative or law enforcement

officer[s]” entitled to disclose Title III information under section 2517(1), and OIG

agents are “investigative or law enforcement officer[s]” entitled to receive such

information. But, as we explain below, a prior opinion of this Office concluded that

the statutory phrase “official duties” refers only to official duties related to law

enforcement. That conclusion applies here, and means that disclosing information

to OIG is not in itself, and without some further link to law enforcement,

“appropriate to the proper performance of [an] official dut[y]” within the meaning

of section 2517(1).

The first requirement for a disclosure under section 2517(1) is that it be made by

an “investigative or law enforcement officer,” defined as an officer of the United

States (or a State or locality) empowered to “conduct investigations of,” “make

arrests for,” or, if the officer is an attorney, “prosecute or participate in the prosecu-

tion of” offenses enumerated in section 2516. 18 U.S.C. § 2510(7). Numerous

officials in the Department qualify as “investigative or law enforcement officer[s]”

who may disclose intercepted communications under this provision. The officers

who typically possess Title III information, such as FBI agents, qualify as

investigative or law enforcement officers by virtue of their authority to “investi-

gat[e]” and “make arrests for” crimes enumerated in section 2516. Id.; see, e.g., 28

C.F.R. § 0.85 (enumerating investigatory functions of the FBI). And prosecutors,

such as Assistant United States Attorneys, qualify because they are federal officers

“authorized by law to prosecute or participate in the prosecution of” enumerated

offenses. 18 U.S.C. § 2510(7); see, e.g., 28 U.S.C. §§ 542, 547 (authorizing United

States Attorneys and their assistants to prosecute federal offenses). Officers of the

Department with leadership or supervisory responsibilities, such as the Attorney

General and Deputy Attorney General, also qualify as investigative or law

enforcement officers. They too are executive officers generally vested with

authority to investigate, make arrests for, and prosecute offenses enumerated in

section 2516. See, e.g., 28 U.S.C. §§ 509, 515; 28 C.F.R. § 0.15(a). In addition, as

we explain below, these officers participate in investigations, arrests, and

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Department of Justice Inspector General’s Access to Information

prosecutions through their direction and supervision of those actions on an

individual or programmatic basis. See infra pp. 14–15.

Section 2517(1)’s second requirement is that the person receiving a disclosure of

Title III material also be an investigative or law enforcement officer. As OIG

observes, this Office has already concluded, in a 1990 opinion, that OIG agents

“qualify as ‘investigative officer[s]’ under section 2510(7).” Investigative Officers,

14 Op. O.L.C. at 109 (alteration in original). OIG agents, as officers in the Executive

Branch, are “officer[s] of the United States.” 18 U.S.C. § 2510(7). Further, as we

explained in our 1990 opinion, the IG Act “entrusts [OIG] with investigative, auditing,

and other responsibilities relevant to the detection and prosecution of fraud and abuse

within [Department] programs or operations.” 14 Op. O.L.C. at 109–10. When OIG

agents, exercising those responsibilities, “discover evidence that . . . Department

personnel, contractors, or grantees are engaging in [offenses enumerated in section

2516]”—such as “bribery of public officials and witnesses,” “influencing or injuring

an officer, juror, or witness,” or “obstruction of criminal investigations”—they have

the authority to investigate those crimes. Id. at 110. Indeed, the portion of the IG Act

that created OIG specifically authorizes it to “investigate allegations of criminal

wrongdoing” by Department employees. 5 U.S.C. app. § 8E(b)(2), (4); see also id.

§ 8E(d); 28 C.F.R. §§ 0.29a(b)(2), 0.29c(a). Furthermore, upon learning of “reason-

able grounds to believe there has been a violation of Federal criminal law,” inspectors

general are required to “report [such violations] expeditiously to the Attorney

General,” Investigative Officers, 14 Op. O.L.C. at 109 (quoting 5 U.S.C. app. § 4(d)),

presumably so that the Attorney General can consider the matter for prosecution.

OIG’s investigative jurisdiction thus “carries with it the power to investigate offenses

enumerated in section 2516,” and as a result, OIG agents—“including special agents,

auditors and investigators”—are “investigative officers” entitled to receive

disclosures of Title III information under section 2517(1). Id. at 110. 7

The conclusion that both Department officials who maintain Title III information

and OIG agents who seek it are “investigative or law enforcement officer[s]” under

section 2517(1), however, does not mean that those officers may share Title III

information with each other in all circumstances. Section 2517(1)’s third

requirement is that any disclosure of Title III information between qualifying

officers must be “appropriate to the proper performance of the official duties of the

officer making or receiving the disclosure.” 18 U.S.C. § 2517(1). In our 2000

Title III Intelligence Community opinion, this Office concluded that the phrase

“official duties,” despite its apparent breadth, includes only the “law enforcement

duties” of the relevant officer—that is, those “duties related to the prevention,

investigation, or prosecution of criminal conduct.” 24 Op. O.L.C. at 264 n.7, 265

(emphasis in original). We reasoned that if “official duties” were read to “permit

7

Some OIG agents may also qualify as “investigative or law enforcement officer[s]” because they

are authorized by the Attorney General, pursuant to specific provisions in the IG Act, to make warrantless

arrests and execute arrest warrants. See 5 U.S.C. app. § 6(e); 28 C.F.R. § 0.29j(d)–(e).

11

Opinions of the Office of Legal Counsel in Volume 39

disclosure . . . for purposes unrelated to law enforcement,” section 2517(1) “would

constitute only a highly elastic limitation on disclosure among law enforcement

officers”—allowing, for instance, an attorney with both civil and criminal duties to

receive wiretap information for use in civil litigation. Id. at 265. We found this result

“unlikely in light of Congress’s effort in Title III to protect privacy to the maximum

extent possible, consistent with permitting electronic surveillance for law

enforcement purposes.” Id.; see id. at 267–69 (discussing the statute’s purpose). We

also noted that Title III’s legislative history demonstrated that “Congress sought in

§ 2517 to serve ‘criminal law investigation and enforcement objectives,’” id. at 265

(quoting Am. Friends Serv. Comm. v. Webster, 720 F.2d 29, 73 (D.C. Cir. 1983)),

and observed, based on a survey of judicial decisions applying section 2517, that

“the uses of Title III information permitted by courts have all related to law

enforcement,” id. at 266. We therefore concluded that “the phrase ‘appropriate to

the proper performance of . . . official duties’” in section 2517 “authorizes

disclosure of Title III material only for purposes related to law enforcement.” Id. at

265, 267.

OIG argues that this conclusion does not apply to disclosures made to OIG in

connection with its investigations. It points out that our Title III Intelligence

Community opinion concerned disclosures of Title III information to members of

the intelligence community, who we concluded were not “investigative or law

enforcement officer[s]” within the meaning of sections 2510(7) and 2517. See OIG

2014 Memorandum at 11. As a result, our conclusion there—that Title III

information could be disclosed to members of the intelligence community in certain

circumstances—was based not on section 2517(1), but on section 2517(2), a

different exception that permits investigative or law enforcement officers to “use”

Title III information, including by disclosing it, “to the extent such use is appropriate

to the proper performance of [the] official duties” of the disclosing officer. 18

U.S.C. § 2517(2). As OIG observes, its agents are investigative or law enforcement

officers, and thus, unlike members of the intelligence community, may in principle

receive disclosures on the basis of their own “official duties” under section 2517(1),

rather than the duties of the disclosing officer. OIG argues that, as a result, the

conclusions in Title III Intelligence Community should not control the scope of the

disclosures it may receive. See OIG 2014 Memorandum at 11.

We disagree. Both sections 2517(1) and 2517(2) use the phrase “official duties,”

and as we explained in Title III Intelligence Community, “under basic canons of

statutory construction,” these “identical phrase[s] . . . must be interpreted consist-

ently” each time they appear in the same statute. 24 Op. O.L.C. at 265 (citing

Sullivan v. Stroop, 496 U.S. 478, 484–85 (1990); United Sav. Ass’n v. Timbers of

Inwood Forest Assocs., 484 U.S. 365, 371 (1988)). Indeed, the Title III Intelligence

Community opinion expressly analyzed section 2517(1) to determine how best to

interpret “official duties” for purposes of section 2517(2), and concluded, in the

discussion summarized above, that the phrase was best read in both sections as

limited to a relevant official’s law enforcement duties. See id. Nor is there any basis

12

Department of Justice Inspector General’s Access to Information

for understanding the “official duties” of a receiving officer in section 2517(1) to

have a broader scope than those of a disclosing officer in the same section, since the

same phrase applies equally to both kinds of officers. See 18 U.S.C. § 2517(1)

(requiring that disclosure assist “the official duties of the officer making or receiving

the disclosure” (emphasis added)). The interpretation of “official duties” in Title III

Intelligence Community thus extends to section 2517(1), and applies to the duties of

both receiving and disclosing officers.

For this reason, we disagree with OIG’s contention that “providing documents

to . . . OIG in the context of [any] duly authorized review would typically be

‘appropriate to the proper performance of the official duties of the official

making . . . the disclosure’” solely because of “that official’s duty to cooperate fully

with . . . OIG’s investigations and reviews.” OIG 2014 Memorandum at 11. The

duty to cooperate with OIG’s investigations is certainly an “official dut[y]” in the

broadest sense of that term. But that duty does not invariably “relate to law

enforcement.” Title III Intelligence Community, 24 Op. O.L.C. at 270. Indeed, we

explained in Title III Intelligence Community that neither an officer’s “general duty

to share [information] with another government entity,” nor the duty to respond to

a “proper request or demand by a congressional committee,” automatically

constitutes an “official dut[y]” within the meaning of section 2517(1). Id. at 264,

271. Similarly, OIG’s duty (as the potential receiving officer) to audit, investigate,

and review the Department’s activities does not automatically justify Title III

disclosure, because it too may not always relate to law enforcement. As a result, we

do not believe Department investigative or law enforcement officers can disclose

Title III information to OIG without regard to whether the disclosure would be

appropriate to the proper performance of an official duty related to law enforcement.

2.

OIG’s second argument is that even if (as we have concluded) “official duties”

are limited to duties related to law enforcement, OIG’s audits, investigations, and

reviews still qualify for disclosure, because they involve investigations of alleged

criminal wrongdoing or administrative (and potentially criminal) misconduct by

Department employees, or reviews of the Department’s criminal law enforcement

programs for purposes of “supervision and oversight.” OIG Title III Memorandum

at 2. For the reasons set forth below, we agree that many—but not all—of OIG’s

investigations and reviews are sufficiently related to law enforcement to support

disclosure based on either the official duties of the officer making the disclosure, or

the official duties of the officer receiving it.

We begin with those disclosures appropriate to the official duties of the officer

“making . . . the disclosure.” 18 U.S.C. § 2517(1). As explained above, numerous

officers within the Department qualify as “investigative or law enforcement

officer[s]” under section 2510(7). Their “official duties” related to law enforcement—

and, thus, the functions in connection with which they may disclose Title III

13

Opinions of the Office of Legal Counsel in Volume 39

information—vary according to their roles. Line-level officials, such as FBI agents

and Assistant U.S. Attorneys, perform duties related to law enforcement through on-

the-ground activities, such as investigating, making arrests for, and prosecuting

crimes. See id. § 2510(7). Higher-ranking Department officials perform duties related

to law enforcement when they direct and supervise those activities, such as by

approving search warrant and wiretap applications, managing criminal investigations,

and setting trial strategy—all functions that are integral parts of the prevention,

investigation, and prosecution of criminal offenses. See, e.g., United States v. Sells

Eng’g, Inc., 463 U.S. 418, 429 n.11 (1983) (recognizing that a prosecutor “conduct[s]

criminal matters” in his role as a “supervisor” as well as by appearing before a grand

jury); 18 U.S.C. § 2510(7) (stating that any attorney who is authorized to “participate

in the prosecution” of an enumerated offense is an investigative or law enforcement

officer). These officials may therefore disclose Title III information to OIG agents to

the extent that doing so would be appropriate to the proper performance of these

various functions, including “for the purpose of obtaining assistance” in carrying them

out. Title III Intelligence Community, 24 Op. O.L.C. at 269; see id. at 261. 8

In addition, in our view, members of Department leadership perform official

duties related to law enforcement when they supervise law enforcement activities

on a programmatic or policy basis—for example, when they issue guidelines for the

exercise of prosecutorial discretion, or set rules governing the conduct of line-level

officers. See, e.g., Memorandum for Heads of Department of Justice Components

and United States Attorneys from the Attorney General, Re: Federal Prosecution

Priorities (Aug. 12, 2013) (listing factors that prosecutors should consider in setting

prosecution priorities); FBI, Domestic Investigations and Operations Guide (Oct.

15, 2011) (establishing policies for the conduct of the FBI’s domestic

investigations). Although these programmatic and policy decisions are somewhat

removed from on-the-ground law enforcement activities, they frequently affect

these activities just as directly as supervisory decisions made on a case-by-case

basis: A Department policy prohibiting a particular law enforcement tactic or

mandating certain charging decisions, for instance, can affect the conduct of a large

number of investigations and prosecutions all at once. See Van de Kamp v.

Goldstein, 555 U.S. 335, 346 (2009) (stating that “supervisory prosecutors” are

entitled to the same degree of prosecutorial immunity when formulating “general

methods of supervision and training” as when taking “actions related to an indivi-

dual trial,” because both activities are “directly connected with the prosecutor’s

basic trial advocacy duties” (emphasis in original)). Such broad-based supervision

thus “relate[s] to law enforcement” in the ordinary sense of that phrase. Cf.

8

For example, if OIG investigated a Department employee for alleged criminal misconduct and then

referred the matter for prosecution, the prosecutor might subsequently seek to consult with OIG about its

investigation in the course of preparing or conducting the prosecution. During that consultation, the

prosecutor could disclose Title III information to OIG if doing so would help the prosecutor prepare or

conduct the prosecution.

14

Department of Justice Inspector General’s Access to Information

Disclosure of Grand Jury Material to the Intelligence Community, 21 Op.

O.L.C. 159, 171 (1997) (“Rule 6(e) Intelligence Community”) (stating that the

Attorney General’s “duty to enforce federal criminal law” within the meaning of

Fed. R. Crim. P. 6(e)(3)(A)(ii) includes the supervision of “a broad criminal law

enforcement program”).

Moreover, given the size of the Department, such programmatic and policy

supervision is a primary means by which the Attorney General and other

Department leadership officials evaluate and direct the Department’s law

enforcement activities, including its use of Title III authorities. If that supervision

did not constitute an “official dut[y]” within the meaning of section 2517(1), then

leadership officials would be unable to programmatically review the contents of

wiretaps in order to ensure that officers were exercising their Title III authorities

responsibly and lawfully, or to conduct general management and supervision of

Department law enforcement activities that made use of Title III materials. We think

it unlikely that Congress intended to handicap leadership officials in this way.

Indeed, interpreting Title III to impair programmatic or policy supervision of the

use of Title III authorities and materials would undermine Congress’s goal of

“protect[ing] privacy to the maximum extent possible, consistent with permitting

electronic surveillance for law enforcement purposes.” Title III Intelligence

Community, 24 Op. O.L.C. at 265; cf. United States v. Giordano, 469 F.2d 522, 527

(4th Cir. 1972) (noting that “[b]ecause of the delicate nature of the power to initiate

surveillance applications,” Congress took care to ensure that “the implementation”

of this authority “was reserved to” high-level leadership officials within the

Department). These considerations reinforce our conclusion that supervising law

enforcement activities on a programmatic or policy basis qualifies as an “official

dut[y]” related to law enforcement within the meaning of section 2517(1).

A Department leadership official may therefore disclose Title III materials to

OIG agents when doing so would be appropriate to the performance of that official’s

duty to supervise law enforcement activities on a programmatic or policy basis.

And, while we will not attempt to specify in the abstract all situations in which such

disclosures would be appropriate, we think that, in general, a wide range of OIG

investigations and reviews would likely assist Department leadership officials in

conducting such programmatic and policy supervision. One of the central purposes

of OIG’s reviews and investigations is to assist Department leadership in

supervising the Department: As noted above, Congress enacted the IG Act in part

to “provide a means for keeping the head of [each] [agency] . . . fully and currently

informed about problems and deficiencies relating to the administration of [the

agency’s] programs and operations and the necessity for and progress of corrective

action,” 5 U.S.C. app. § 2(3), and it assigned OIG the statutory duty of providing

reports and recommendations about such issues to Department leadership, see id.

§ 4(a)(5). Moreover, consistent with Congress’s purpose, “OIG’s reports of its

investigations and reviews have historically provided the Attorney General and

Deputy Attorney General with critical advice, information, and insights in

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Opinions of the Office of Legal Counsel in Volume 39

connection with the exercise of their supervisory responsibilities over the

Department’s programs and operations.” Letter for Michael E. Horowitz, Inspector

General, from Sally Quillian Yates, Acting Deputy Attorney General, at 2 (Apr. 23,

2015) (“Yates Letter”). We therefore believe that it would generally be “appropriate

to the proper performance of the official duties” of a member of the Department’s

leadership to disclose Title III information to OIG agents in connection with

investigations or reviews of law enforcement programs and operations that could

inform supervisory decisions made by Department leadership about such programs

and operations; that is, investigations or reviews that concern, or are designed to

develop recommendations about, the manner in which the Department prevents,

investigates, or prosecutes crimes. 9

We now turn to disclosures that would be appropriate to the proper performance of

the official duties of the officer “receiving the disclosure”—in this case, OIG agents.

As noted above, this Office has previously concluded that OIG agents qualify as

“investigative officer[s]” under section 2510(7) by virtue of their authority to

investigate allegations of criminal wrongdoing—including offenses enumerated in

section 2516—by Department employees, contractors, and grantees. Investigative

Officers, 14 Op. O.L.C. at 109 (alteration in original). Because investigations of

alleged criminal wrongdoing are plainly “official duties” related to law enforcement,

section 2517(1) authorizes Department investigative and law enforcement officers to

disclose Title III information to OIG agents as “appropriate to the proper perform-

ance” of OIG’s investigations of alleged criminal wrongdoing by Department

employees, contractors, or grantees, including administrative misconduct investiga-

tions that have a reasonable prospect of identifying criminal wrongdoing.

We further believe that OIG officials perform “official duties” related to law

enforcement within the meaning of section 2517(1) when they conduct

investigations and reviews that could help Department leadership officials make

supervisory decisions regarding the Department’s law enforcement programs,

policies, and practices. As we have already noted, Congress placed OIG within the

Department of Justice, the nation’s principal law enforcement agency, see 5 U.S.C.

app. §§ 2(A), 12(2); 28 U.S.C. §§ 501 et seq., and assigned it the “duty and

responsibility” of reviewing the Department’s programs and operations, including

its programs and operations related to law enforcement, in order to help the Attorney

9

For example, the initial request for this opinion was prompted by three recent OIG reviews: a review

of Operation Fast and Furious (an investigation of firearms trafficking, conducted by the Department’s

Bureau of Alcohol, Tobacco, Firearms, and Explosives, that employed a controversial investigative

technique); a review of the FBI’s alleged misuse of the material witness statute, 18 U.S.C. § 3144, to

detain persons suspected of criminal conduct rather than potential witnesses; and a review of the FBI’s

use of National Security and Exigent letters. All three of these investigations concerned operational

questions related to the Department’s prevention, investigation, or prosecution of criminal conduct, and

all promised to directly inform Department leadership’s supervision of these activities. Department

leadership could therefore properly disclose Title III information to OIG in connection with all three

investigations under section 2517(1).

16

Department of Justice Inspector General’s Access to Information

General and her assistants better manage those programs and operations, 5 U.S.C.

app. § 4(a). OIG agents thus have responsibilities that are closely related to

Department leadership’s duty to supervise and manage the Department’s law

enforcement functions on a programmatic and policy basis, and are therefore

sufficiently related to law enforcement to constitute “official duties” under

section 2517(1).

We recognize that, in at least two respects, OIG reviews of Department law

enforcement operations have a more attenuated relationship to the actual conduct of

those operations than policy and programmatic supervision conducted by

Department leadership; but we do not think that either of these distinctions prevents

the conduct of such reviews from constituting an “official dut[y]” under section

2517(1). First, OIG provides information and recommendations that may inform

supervisory decisions made by Department leadership, but it does not—and

cannot—actually make operational decisions concerning the Department’s law

enforcement activities. See Authority to Conduct Regulatory Investigations, 13 Op.

O.L.C. at 62 (concluding that inspectors general may not conduct “investigations

constituting an integral part of the programs involved”); 5 U.S.C. app. § 9(a)

(prohibiting the Attorney General from transferring to OIG “program operating

responsibilities”). Neither the statutory phrase “official duties,” however, nor our

prior conclusion that this phrase encompasses duties that “relate to law

enforcement,” Title III Intelligence Community, 24 Op. O.L.C. at 271, requires that

such duties involve operational law enforcement responsibilities. Indeed, such a

requirement would exclude activities that are essential to the effective conduct of

core law enforcement functions. It is difficult to imagine how most law enforcement

duties, including the duty to set relevant policy and conduct programmatic

supervision, could be carried out responsibly without the benefit of the fact-finding

and evaluative work necessary to inform them. And it would make little sense to

conclude that, for example, the Attorney General and her assistants are not engaged

in “official duties” related to law enforcement, and thus cannot obtain relevant

Title III information, when they conduct a review of a law enforcement program

that relies on such information, but that the Attorney General is engaged in a law

enforcement duty, and thus may obtain such access, when she ultimately issues

direction or guidance about that program. We therefore think that the duty to review

and investigate law enforcement programs, like the duty to supervise those

programs on a programmatic or policy level, qualifies as an “official dut[y]” related

to law enforcement under section 2517(1).

Second, in providing its recommendations and analysis to the Attorney General,

OIG is insulated to some degree from the Attorney General’s direction and

supervision. See 5 U.S.C. app. § 3(a) (providing that the Attorney General may not

“prevent or prohibit the Inspector General from initiating, carrying out, or

completing any audit or investigation”); id. § 8E(a) (qualifying this limitation with

respect to “audits or investigations . . . which require access to [certain] sensitive

information”). Moreover, unlike other Department components or officials that

17

Opinions of the Office of Legal Counsel in Volume 39

conduct fact-finding investigations or make recommendations to Department

leadership, OIG exercises authority conferred directly by Congress in the IG Act,

rather than authority shared with or delegated by the Attorney General. Compare id.

§§ 4(a), 6(a) (granting various authorities to inspectors general) with 28 U.S.C.

§ 509 (vesting in the Attorney General, with certain minor exceptions, “[a]ll

functions of other officers of the [Department] and all functions of agencies and

employees of the [Department]”) and id. § 510 (authorizing the Attorney General

to “authoriz[e] the performance by any other officer, employee, or agency of the

[Department] of any function of the Attorney General”). OIG thus falls in important

respects outside the Department’s chain of command when it conducts

investigations and develops recommendations.

But OIG’s relative independence from the Department’s leadership does not in

our view undermine the value of its reviews or advice, or mean that its “official

dut[y]” to undertake such reviews and provide such advice is unrelated to the

ultimate supervisory law enforcement decisions made by Department leadership. To

the contrary, Congress created OIG precisely because it believed that establishing

an independent and objective entity to evaluate the Department’s programs and

operations would enhance the quality of such evaluations. See H.R. Rep. No. 100-

771, at 8–9 (1988) (explaining that a lack of independence impaired the

effectiveness of the Department’s internal audit and investigation components). We

are reluctant to conclude that the relative independence that Congress determined

would improve the value of OIG’s reviews at the same time renders them

insufficiently “related to law enforcement” to support disclosure of the Title III

information OIG needs to perform such reviews effectively.

Consequently, we believe that OIG investigations and reviews that concern, or

are designed to develop recommendations about, the manner in which the

Department prevents, investigates, or prosecutes crimes “serve criminal law

investigation and enforcement objectives” and “relate to law enforcement,” as our

Title III Intelligence Community opinion requires. 24 Op. O.L.C. at 265, 271

(internal quotation marks omitted). As a result, we think that OIG agents can obtain

Title III information directly from Department investigative and law enforcement

officers, for use in such investigations and reviews, based on the OIG agents’ own

“official duties” to conduct such reviews for the benefit of Department leadership—

and not simply from Department leadership based on the leadership officials’ duty

to supervise Department operations.

Finally, although we have concluded that the “official duties” of Department

leadership officials and OIG agents for Title III purposes encompass many of their

responsibilities, it does not follow that disclosing Title III materials in connection

with an OIG audit, investigation, or review is “appropriate to the proper

performance of the official duties” of Department leadership or OIG agents in every

instance. Cf. OIG 2014 Memorandum at 11. In particular, reviews that are either

unrelated to, or have only an attenuated connection with, the conduct of the

Department’s law enforcement programs and operations do not, in our view,

18

Department of Justice Inspector General’s Access to Information

constitute (or promise to assist with) “official duties” related to law enforcement.

For example, it is unlikely that an OIG review of one of the Department’s non-law

enforcement activities, such as civil litigation, would be sufficiently related to the

Department’s law enforcement programs and operations to justify disclosure under

section 2517(1), unless that review were aimed at uncovering criminal misconduct.

Similarly, we doubt that a routine financial audit of a Department component, or a

review of a component’s record-keeping practices, would justify disclosure of Title

III information under section 2517(1) merely because that component engaged in

law enforcement activities. Although sound finances and good record-keeping may

enable a law enforcement component to conduct its functions more effectively, such

an audit or investigation would not be aimed at evaluating the conduct of law

enforcement activities themselves, or uncovering criminal conduct by Department

employees. Construing section 2517(1) to permit disclosure of Title III information

in connection with reviews that are so tangentially related to law enforcement

activities would reduce that provision to the kind of “highly elastic limitation on

disclosure” among law enforcement and investigative officers that Congress did not

intend. Title III Intelligence Community, 24 Op. O.L.C. at 265; cf. Rural Housing

Alliance v. U.S. Dep’t of Agric., 498 F.2d 73, 81 (D.C. Cir. 1974) (rejecting a

construction of the exemption for “investigatory files compiled for enforcement

purposes” in the Freedom of Information Act, under which that exemption would

encompass records from a compliance audit that might result in administrative or

criminal sanctions, because that construction would cause the exemption to

“swallow[] up the Act”).

In sum, we conclude that section 2517(1) permits Department investigative or

law enforcement officers to disclose Title III information to OIG agents in

connection with many, but not all, OIG investigations and reviews. Line-level

Department officers may disclose Title III information to OIG agents to assist the

disclosing officers in preventing, investigating, or prosecuting criminal conduct.

Any Department officer may disclose Title III information to OIG agents to assist

OIG in its investigations of criminal misconduct by Department employees,

contractors, or grantees, including administrative misconduct investigations that

have a reasonable prospect of uncovering criminal violations. And because

Department leadership officials have a duty to conduct policy and programmatic

supervision of the Department’s law enforcement activities—and because OIG has

a duty to conduct investigations and reviews that could assist Department leadership

in carrying out that supervision—any Department officer may disclose Title III

information to assist OIG in performing such investigations and reviews where they

concern, or are designed to develop recommendations about, the manner in which

the Department prevents, investigates, or prosecutes crimes. Section 2517(1) does

not, however, permit OIG agents to obtain Title III information in connection with

reviews that are either unrelated to, or have only an attenuated relationship with, the

conduct of the Department’s law enforcement activities.

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Opinions of the Office of Legal Counsel in Volume 39

B.

We now turn to OIG’s eligibility to obtain grand jury materials. Federal Rule of

Criminal Procedure 6(e) “codifies the traditional rule of grand jury secrecy,” which

is designed to ensure “the proper functioning of our grand jury system” by

encouraging prospective witnesses to “come forward” and “testify fully and

frankly,” lessening the “risk that those about to be indicted w[ill] flee, or w[ill] try

to influence individual grand jurors to vote against indictment,” and protecting the

innocent from “be[ing] held up to public ridicule.” Sells, 463 U.S. at 424–25

(quoting Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 218–19 (1979)). In

order to achieve these objectives, Rule 6(e) prohibits several specified classes of

individuals, including “attorney[s] for the government,” from disclosing “a matter

occurring before the grand jury.” Fed. R. Crim. P. 6(e)(2)(B). This rule of secrecy,

however, is not absolute: A court may authorize the disclosure of grand jury

materials in certain circumstances, id. 6(e)(3)(E), and an attorney for the

government may disclose information without court authorization pursuant to

several exceptions enumerated in subsection (3) of Rule 6(e).

OIG contends that these exceptions authorize its attorneys to receive grand jury

materials that are relevant to OIG investigations. Principally, OIG argues that

Department attorneys may disclose grand jury information to OIG under the

exception set forth in Rule 6(e)(3)(A)(i) (“exception (A)(i)”), which permits the

disclosure of grand jury information to “an attorney for the government for use in

performing that attorney’s duty.” See OIG 2015 E-mail; OIG 2014 Memorandum at

9–10; OIG Supplemental Memorandum at 19–26. In addition, although OIG does

not rely on the provision, we have considered whether OIG attorneys may obtain

grand jury information under the exception set forth in Rule 6(e)(3)(A)(ii)

(“exception (A)(ii)”), which authorizes disclosures to “any government person-

nel . . . that an attorney for the government considers necessary to assist in

performing that attorney’s duty to enforce federal criminal law.” For the reasons set

forth below, we conclude that exception (A)(i) does not authorize Department

attorneys to disclose grand jury materials to OIG attorneys, but that exception (A)(ii)

authorizes disclosures to OIG officials in a wide range of circumstances, including

in connection with OIG reviews that a member of Department leadership concludes

could assist her in supervising the Department’s criminal law enforcement programs

and operations. 10

10

OIG also argues that it is entitled to disclosure of some grand jury materials under subsection

6(e)(3)(D) (“exception (D)”), which authorizes an attorney for the government to disclose grand jury

material “involving foreign intelligence, counterintelligence . . . , or foreign intelligence information” to

a range of officials, including “federal law enforcement . . . official[s],” in order to “assist the official

receiving the information in the performance of that official’s duties.” See OIG Supplemental

Memorandum at 26–45. We believe the applicability of exception (D) to OIG presents a difficult

question. In light of our conclusion that exception (A)(ii) permits the Department leadership to provide

20

Department of Justice Inspector General’s Access to Information

1.

We begin with exception (A)(i). It provides:

Disclosure of a grand-jury matter—other than the grand jury’s

deliberations or any grand juror’s vote—may be made to . . . an

attorney for the government for use in performing that attorney’s duty.

Fed. R. Crim. P. 6(e)(3)(A)(i). A person may make a disclosure under this provision

without obtaining authorization from the court that impaneled the grand jury or

notifying the court of the disclosure. Cf. id. 6(e)(3)(B), (E).

OIG argues that exception (A)(i) authorizes Department attorneys to disclose

grand jury information to OIG attorneys for use in conducting any OIG audit,

investigation, or review. OIG observes that, in a prior memorandum, this Office

concluded that attorneys from the Department’s Office of Professional

Responsibility (“OPR”) could obtain grand jury information under exception (A)(i)

for use in investigating charges of misconduct by prosecutors or other Department

employees who had assisted in grand jury investigations. See OIG Supplemental

Memorandum at 20–22 (citing Memorandum for Michael Shaheen, Jr., Counsel,

OPR, from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal

Counsel, Re: Disclosure of Grand Jury Material to the Office of Professional

Responsibility (Jan. 6, 1984) (“OPR Memorandum”)). OIG contends that because

its attorneys, like OPR attorneys, are authorized to assist the Attorney General in

supervising the Department, they qualify as “attorney[s] for the government” who

may receive disclosures under exception (A)(i). See OIG 2015 E-mail. OIG further

argues that its attorneys perform a “duty” closely analogous to OPR’s when they

investigate allegations of misconduct by the Department’s law enforcement officers.

OIG claims that as a result, exception (A)(i) likewise permits its attorneys to receive

grand jury information in connection with its investigations. See OIG Supplemental

Memorandum at 22–24.

The starting point for OIG’s argument is United States v. Sells Engineering. In

that case, the Supreme Court considered whether exception (A)(i) authorizes the

Department’s Civil Division to obtain grand jury materials for use in preparing and

litigating civil lawsuits. See 463 U.S. at 420. The Court concluded first that Civil

Division attorneys, like “virtually every attorney in the Department of Justice,” were

“within the class of ‘attorneys for the government’ to whom (A)(i) allows disclosure

OIG with access to grand jury material in a wide range of circumstances, see infra Part II.B.2, we decline

to address the scope of exception (D) here. Rule 6(e)(3) also includes exceptions to Rule 6(e)’s secrecy

requirements for (1) certain disclosures relating to banking matters and civil forfeiture authorized by 18

U.S.C. § 3322, see Fed. R. Crim. P. 6(e)(3)(A)(iii); (2) disclosures to another federal grand jury, see id.

6(e)(3)(C)); and (3) disclosures authorized by a court under certain conditions, see id. 6(e)(3)(E). We

likewise do not address the application of those exceptions in this opinion.

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Opinions of the Office of Legal Counsel in Volume 39

without a court order.” Id. at 426, 427–28. The Federal Rules of Criminal Procedure,

the Court explained, define “attorneys for the government” to include “‘authorized

assistants of the Attorney General’”; and the Attorney General may direct almost

“any attorney employed by the Department”—including Civil Division attorneys—

“to conduct ‘any kind of legal proceeding, civil or criminal, including grand jury

proceedings.’” Id. at 428 (quoting Fed. R. Crim. P. 54(c) (1983); 28 U.S.C.

§ 515(a)). 11 It was therefore “immaterial,” in the Court’s view, that “certain

attorneys happen[ed] to be assigned to a unit called the Civil Division, or that their

usual duties involve[d] only civil cases.” Id. Because such attorneys,

notwithstanding such an assignment, could be detailed or assigned to conduct

“criminal grand jury investigation[s],” they counted as “attorneys for the

government” under the Rules. Id.

Nonetheless, the Court held that the use of grand jury information for civil

purposes—even by an “attorney for the government” exercising her official

duties—did not constitute “use in the performance of such attorney’s duty” within

the meaning of exception (A)(i). 12 In the Court’s view, Congress did not intend

exception (A)(i) to mean “that any Justice Department attorney is free to rummage

through the records of any grand jury in the country, simply by right of office,” id.,

or to authorize access to grand jury material to serve “the general and multifarious

purposes of the Department of Justice,” id. at 429. The Court based its conclusion

primarily on the purpose behind exception (A)(i). It explained that Rule 6(e) permits

government attorneys to obtain otherwise secret grand jury materials only “because

both the grand jury’s functions and their own prosecutorial duties require it.” Id.

(emphasis in original); see id. at 428–29 (quoting Fed. R. Crim. P. 6(e) advisory

committee’s note (1944)). A prosecutor working on a criminal matter “needs to

know what transpires before the grand jury,” in order to “bring[] matters to the

attention of the grand jury,” “advise[] the lay jury on the applicable law,” and

“determine whether it is in the interests of justice to proceed with prosecution.” Id.

at 430. A civil attorney’s “need for access,” in contrast, “is ordinarily nothing more

than a matter of saving [the] time and expense” of civil discovery. Id. at 431. As a

result, “disclosure for civil use [is] unjustified by the considerations supporting

prosecutorial access.” Id. Moreover, the Court continued, granting attorneys the

right to obtain grand jury materials for use in civil litigation would “threaten[] to do

affirmative mischief.” Id. Such a broad right of access might discourage witnesses

from testifying before the grand jury “for fear that [they] will get [themselves] into

trouble in some other forum,” “tempt[]” prosecutors to “manipulate the grand jury’s

powerful investigative tools . . . to elicit evidence for use in a civil case,” and

11

Rule 54(c) was transferred to Rule 1(b)(1) when the Rules were amended in 2002.

12

The language of this provision has been modified slightly since Sells. Compare Fed. R. Crim. P.

6(e)(3)(A)(i) (1979) (“an attorney for the government for use in the performance of such attorney’s duty”)

with Fed. R. Crim. P. 6(e)(3)(A)(i) (2015) (“an attorney for the government for use in performing that

attorney’s duty”). We believe this change is immaterial for purposes of this opinion.

22

Department of Justice Inspector General’s Access to Information

“subvert the limitations applied outside the grand jury context on the Government’s

powers of discovery and investigation.” Id. at 432–33.

Significantly, the Court made clear that it did “not mean to suggest that (A)(i)

access to grand jury materials is limited to those prosecutors who actually did appear

before the grand jury.” Id. at 429 n.11 (emphasis in original). Rather, the Court

noted that “anyone working on a given prosecution would clearly be eligible under

[the Federal Rules] to enter the grand jury room,” even if such a person did not do

so. Id. (emphasis in original). Accordingly, the Court found that the intent of the

rule was to authorize “every attorney (including a supervisor) who is working on a

prosecution [to] have access to grand jury materials, at least while he is conducting

criminal matters,” in order “to facilitate effective working of the prosecution team.”

Id. (emphasis omitted).

In the wake of the Supreme Court’s decision in Sells, OPR asked this Office

whether its attorneys could continue to obtain access to grand jury materials under

exception (A)(i) when “investigating charges that prosecutors or Department

employees assisting grand jury investigations ha[d] engaged in misconduct.” OPR

Memorandum at 1. In an unpublished memorandum that forms the basis for OIG’s

argument here, we advised that OPR attorneys could “probably” do so. Id. at 2. We

acknowledged that “the broad language in Sells, on its face, would appear to prohibit

automatic disclosure” to OPR attorneys, because they “would usually be using the

materials for civil, not criminal, purposes”—i.e., in connection with administrative

misconduct proceedings—and because “they are not the ‘attorneys who conduct the

criminal matters to which the materials pertain.’” Id. at 4 (quoting Sells, 463 U.S. at

427). Nonetheless, we observed that two “strong arguments [could] be made” in

support of OPR’s eligibility for disclosure under exception (A)(i). Id.

First, we noted that permitting the automatic disclosure of grand jury materials

to OPR attorneys would not “raise[] the same type of policy concerns that were

relied upon by the Sells Court.” Id. at 6. The Civil Division attorneys in Sells, we

explained, had sought grand jury materials “for possible use in civil actions against

the targets of the grand jury inquiry,” while OPR attorneys sought those materials

“to oversee the conduct of the government attorneys and investigators assisting the

grand jury.” Id. at 4–5. Thus, unlike in Sells, “only the conduct of government

prosecutors,” and not the conduct of the targets of the grand jury inquiry, “would be

subject to scrutiny.” Id. at 5. As a result, disclosing grand jury materials to OPR

attorneys would neither “hinder[]” the “willingness of witnesses to testify” nor

“create an incentive for criminal attorneys to abuse the grand jury process in order

to pursue civil discovery.” Id.

Second, we believed that disclosures to OPR attorneys would “fall generally

within the supervisor exception” articulated in Sells. Id. at 7. We noted that the Sells

Court had recognized that grand jury materials could be “disclosed to some persons

who may not technically be considered ‘prosecutors,’ such as Department

‘supervisors’ and members of the ‘prosecution team,’ but who nevertheless are

indispensable to an effective criminal law enforcement effort.” Id. at 6 (citation

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Opinions of the Office of Legal Counsel in Volume 39

omitted) (quoting Sells, 463 U.S. at 429 n.11). We thought this exception “would

clearly cover certain exchanges [of grand jury information]” that were “analogous”

to disclosures to OPR. Id. In particular, we thought there was “no question” that

prosecutors could “ask ethics counselors to accompany them into the grand jury

room to give direct counsel when problems [arose],” or that prosecutors could

“disclose grand jury materials to their superiors,” as well as to “ethics attorneys”

advising those supervisors, in order “to seek their instructions on ethical

responsibilities.” Id. at 7. We therefore thought it probable, although “not free from

doubt,” that, by the same logic, Department attorneys could obtain grand jury

materials “to evaluate in the course of a separate administrative investigation the

propriety of prior conduct.” Id. We reasoned that, “[t]o perform properly their

oversight role, supervisors not only must be able to review grand jury materials for

purposes of instructing subordinates on future activities, but also must be able to

evaluate that conduct once a course of action has been set.” Id. “A supervisor’s

access to grand jury materials,” we explained, “should not be terminated artificially

once his subordinates have acted, but should properly include post mortem review

of his staff’s activities.” Id. at 7–8. We further noted that OPR attorneys are, by

regulation, “delegee[s] of the Attorney General for purposes of overseeing and

advising with respect to the ethical conduct of department attorneys.” Id. at 8 (citing

28 C.F.R. § 0.39a (1983)). Accordingly, we concluded that it was appropriate for

OPR attorneys to review grand jury materials in order to “make recommendations

to the Attorney General or other supervisors regarding conduct in particular cases.”

Id. 13

OIG argues that it is eligible to receive grand jury materials under exception

(A)(i) for much the same reason as OPR attorneys. OIG asserts that its attorneys

qualify as “attorney[s] for the government” because they are charged with

“assisting the [Attorney General] in [her] capacity of overseeing the operations of

the Department.” OIG 2015 E-mail. And OIG argues that its investigations and

reviews are comparable to the work performed by OPR attorneys, and thus qualify

as “dut[ies]” for which OIG may receive grand jury information, because OIG,

like OPR, performs those investigations to “oversee[] and advis[e] with respect to

the ethical conduct” of Department personnel, and to assist members of the

Department’s leadership in “evaluat[ing] . . . the propriety of prior conduct” and

improving the Department’s law enforcement policies and programs. OPR

Memorandum at 7–8; see OIG Supplemental Memorandum at 22–24.

We think that OIG is correct that its duties are similar to OPR’s in important

respects; indeed, for the reasons described in Part II.B.2 below, we believe that OIG

13

Recognizing, however, that the broad language in Sells could be read to prohibit automatic

disclosure of grand jury materials to OPR attorneys, we suggested “as a prudential matter” that OPR seek

a court order sanctioning disclosure under exception (A)(i) in the first few cases in which it reviewed

grand jury materials so that it might “obtain some clear guidance from the courts on whether the

automatic exemption may be employed.” OPR Memorandum at 9.

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Department of Justice Inspector General’s Access to Information

personnel may obtain grand jury information under exception (A)(ii) in part because

of their responsibility to assist Department leadership in supervising the

Department’s law enforcement functions. See infra pp. 33–34. But we disagree that

OIG attorneys qualify as “attorney[s] for the government” within the meaning of

the Federal Rules. As we explain below—and as both Sells and numerous courts of

appeals have confirmed—an “attorney for the government” under the Rules must

not merely assist the Attorney General, but must (at a minimum) be capable of

conducting criminal proceedings on behalf of the government. Because the IG Act

prohibits OIG personnel from engaging in such activities, OIG attorneys cannot

qualify for disclosure under exception (A)(i).

The Rules define an “attorney for the government” as:

(A) the Attorney General or an authorized assistant;

(B) a United States attorney or an authorized assistant;

(C) when applicable to cases arising under Guam law, the Guam

Attorney General or other person whom Guam law authorizes to act

in the matter; and

(D) any other attorney authorized by law to conduct proceedings

under these rules as a prosecutor.

Fed. R. Crim. P. 1(b)(1). Most of the categories listed in this definition clearly

consist of attorneys who are authorized to conduct criminal proceedings on behalf

of the government. The Attorney General is authorized to “conduct any kind of legal

proceeding, civil or criminal, including grand jury proceedings,” 28 U.S.C.

§ 515(a); United States Attorneys are charged with “prosecut[ing] . . . all offenses

against the United States,” id. § 547(1); attorneys for the government acting in

Guam criminal cases must be “authorize[d] to act in th[os]e matter[s]” under Guam

law; and “other attorney[s]” must be “authorized by law to conduct proceedings

under [the Rules] as a prosecutor.” Only the “authorized assistant[s]” to the Attorney

General and United States Attorneys described in subparagraphs (A) and (B) are not

in plain terms limited to attorneys who are authorized to represent the government

in criminal proceedings. In isolation, the phrase “authorized assistant” might be read

to encompass persons who “assist[]” the Attorney General or a United States

Attorney in ways other than by conducting prosecutions (such as by conducting the

kinds of investigations of misconduct or law enforcement programs undertaken by

OIG). Read in context, however, we think that the term “authorized assistant” in

subparagraphs (A) and (B) refers, like the other categories in Rule 1(b)(1), to

prosecutors or other attorneys with authority to conduct criminal proceedings on the

government’s behalf. This is so for at least three reasons.

First, the text of Rule 1(b)(1) supports this reading. The word “authorized” in

“authorized assistant” must be read in light of the meaning it has in the other parts

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Opinions of the Office of Legal Counsel in Volume 39

of the same provision. As noted, subsection (C) refers to persons “whom Guam law

authorizes to act in [a] [criminal] matter,” and subsection (D) refers to other

attorneys “authorized by law to conduct proceedings under these rules as a

prosecutor” (emphases added). Because “similar language contained within the

same section of a statute must be accorded a consistent meaning,” Nat’l Credit

Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 501 (1998), it is

reasonable to presume that Congress used the term “authorized” in a similar sense

in subsections (A) and (B), to refer to official authorization to conduct proceedings

under the Rules as a prosecutor, or otherwise to “act” in a criminal proceeding in an

official capacity. As noted above, moreover, the other categories of government

attorneys listed in Rule 1(b)(1) are clearly authorized to conduct criminal

proceedings. In that context, the term “authorized assistant” is best read to refer as

well to attorneys who are authorized to conduct criminal proceedings. See United

States v. Williams, 553 U.S. 285, 294 (2008) (noting that “a word is given more

precise content by the neighboring words with which it is associated”). Additionally,

the catchall category set forth in subsection (D) refers to “any other attorney

authorized by law to conduct proceedings under these rules as a prosecutor”

(emphasis added). That formulation reinforces our conclusion that the preceding

categories in the Rule consist of attorneys authorized by law to conduct proceedings

under the rules as a prosecutor. See Paroline v. United States, 134 S. Ct. 1710, 1721

(2014) (“Here, [18 U.S.C.] § 2259(b)(3)(F) defines a broad, final category of ‘other

losses suffered . . . as a proximate result of the offense.’ That category is most

naturally understood as a summary of the type of losses covered—i.e., losses

suffered as a proximate result of the offense.” (ellipsis in original)).

Second, consistent with this reading, Sells and many lower court decisions have

held or assumed that an “authorized assistant” to the Attorney General must be an

attorney who is, or at least may be, authorized to conduct criminal proceedings on

the government’s behalf. As noted, Sells concluded that Civil Division attorneys

qualify as “authorized assistant[s] of the Attorney General” because the Attorney

General may assign them to “conduct a criminal grand jury investigation” or other

criminal matters. Sells, 463 U.S. at 428 (citing 28 U.S.C. §§ 515(a), 518(b)). The

Attorney General’s authority to reassign attorneys in this way would be pertinent

only if the Court thought that an “authorized assistant” had to be capable of

conducting criminal matters on the government’s behalf. Courts of appeals have

interpreted the phrase even more strictly. The Sixth Circuit, for instance, has held

that “an ‘authorized assistant of the Attorney General’ is one whose superiors have

assigned him or her to work in some official capacity on the criminal proceeding.”

United States v. Forman, 71 F.3d 1214, 1220 (6th Cir. 1995) (emphasis omitted).

Other courts of appeals have reached similar conclusions. See Sells, 463 U.S. at 429

n.12 (citing courts of appeals that had “held or assumed that” even a Criminal

Division attorney could qualify as an “‘authorized assistant of the Attorney

General’” only if she had actually been “authorized to conduct grand jury

proceedings” (emphasis in original)); United States v. Fort, 472 F.3d 1106, 1111

26

Department of Justice Inspector General’s Access to Information

(9th Cir. 2007) (“Rule 1(b)(1) defines restrictively the term ‘attorney for the

government’ to mean (as relevant here) a federal prosecutor.”); United States v.

Balistrieri, 779 F.2d 1191, 1207 (7th Cir. 1985) (holding that attorneys employed

by the Department’s Criminal Division were “authorized assistants of the Attorney

General” and thus “attorneys for the government” because they “were assigned to

assist the United States Attorney for the Eastern District of Wisconsin in invest-

igating and prosecuting” a criminal case). There is some apparent tension between

the conclusion in Sells that any attorney who could be authorized to conduct

criminal proceedings qualifies as an “attorney for the government,” see 463 U.S.

at 428, and the conclusions of other courts that an actual authorization is required,

see, e.g., Forman, 71 F.3d at 1220. But we need not attempt to resolve this tension

here, because at a minimum, all courts agree that an attorney who is incapable of

being authorized to conduct criminal proceedings on the government’s behalf is not

an “authorized assistant” for purposes of the Federal Rules.

Third, numerous provisions of the Federal Rules make clear that an “attorney for

the government,” including an authorized assistant to the Attorney General, refers

to an attorney capable of representing the government in criminal proceedings—a

meaning that makes sense given the Rules’ purpose of establishing the “procedure”

governing “all criminal proceedings in the United States [courts].” Fed. R. Crim. P.

1(a)(1); see Robinson v. Shell Oil Co., 519 U.S. 337, 345 (1997) (resolving the

meaning of a statutory term by considering “[t]he broader context provided by other

sections of the statute”). More than 50 provisions of the Rules use the term “attorney

for the government,” and all are consistent with this understanding. For example,

Rule 11(c) provides that “[a]n attorney for the government and the defendant’s

attorney, or the defendant when proceeding pro se, may discuss and reach a plea

agreement.” Fed. R. Crim. P. 11(c)(1). Rule 12.1 provides that “[a]n attorney for the

government may request in writing that the defendant notify an attorney for the

government of any intended alibi defense,” id. 12.1(a)(1), and that, following such

a request, “the defendant must serve written notice on an attorney for the

government of any intended alibi defense,” id. 12.1(a)(2). Rule 14 provides that

“[b]efore ruling on a defendant’s motion to sever [his trial from a codefendant’s],

the court may order an attorney for the government to deliver to the court for in

camera inspection any defendant’s statement that the government intends to use as

evidence.” Id. 14(b). And Rule 26.2 provides that “[a]fter a witness other than the

defendant has testified on direct examination, the court, on motion of a party who

did not call the witness, must order an attorney for the government or the defendant

and the defendant’s attorney to produce . . . any statement of the witness that is in

their possession and that relates to the subject matter of the witness’s testimony.”

Id. 26.2(a). A person who lacks authority to appear in a criminal matter on behalf of

the government could not perform these or many other functions assigned to

“attorney[s] for the government” by the Federal Rules.

OIG attorneys cannot qualify as “authorized assistant[s],” or any other type of

“attorney for the government,” under this standard. As an initial matter, nothing in the

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Opinions of the Office of Legal Counsel in Volume 39

IG Act authorizes OIG attorneys to conduct criminal proceedings. See 5 U.S.C. app.

§§ 4(a), 6(a), 8E(b) (listing OIG’s duties and authorities). Ordinarily, 28 U.S.C. § 515

and related statutes permit the Attorney General to delegate to any “officer of the

Department of Justice,” or to any “attorney specially appointed by the Attorney

General,” the authority to conduct criminal proceedings on the government’s behalf.

28 U.S.C. § 515(a); see also id. §§ 518(b), 543(a). But section 9(a) of the IG Act

provides that the Attorney General may transfer “functions, powers, [and] duties” to

OIG only if those functions are “properly related to the functions of [OIG],”

transferring them would “further the purposes of th[e] Act,” and the functions do not

constitute “program operating responsibilities.” 5 U.S.C. app. § 9(a), (a)(2); see also

Authority to Conduct Regulatory Investigations, 13 Op. O.L.C. at 61 (stating that the

IG Act prohibits inspectors general from “conduct[ing] investigations constituting an

integral part of the programs involved” (internal quotation marks omitted)). The duty

to conduct grand jury or other criminal proceedings on behalf of the United States is

unrelated to OIG’s statutory functions of investigation, auditing, and oversight. See

5 U.S.C. app. § 4(a). Transferring criminal litigating responsibilities to OIG would

undermine its independence—preservation of which is one of the principal concerns

of the Act—by making its attorneys “responsible official[s]” who “set and implement

[Department] policy” at the same time as they oversee and critique it. Authority to

Conduct Regulatory Investigations, 13 Op. O.L.C. at 61. And the conduct of criminal

litigation is one of the Department’s central program operating responsibilities. See

28 U.S.C. §§ 515(a), 516, 519. The plain language of section 9(a) therefore bars the

Attorney General from assigning this responsibility to OIG.

The IG Act’s legislative history further supports this reading of section 9(a).

When Congress initially enacted the IG Act in 1978, the House Report explained

that “Inspector[s] General would not conduct prosecutions or decide whether

prosecutions should or should not be conducted.” H.R. Rep. No. 95-584, at 13

(1977). And when Congress extended the IG Act to the Department in 1988, the

House Report responded to concerns that OIG’s creation would interfere with the

Department’s law enforcement functions: “[P]rosecution of suspected violations of

Federal law and the conduct of litigation are parts of the basic mission or program

functions of the Department of Justice,” the Report explained, “[and] the [IG] [A]ct

does not authorize inspectors general to engage in program functions.” H.R. Rep.

No. 100-771, at 9. “[I]n fact,” the Report continued, “[section 9(a)] specifically

prohibits the assignment of such responsibilities to an inspector general.” Id. at 9 &

n.48. The Conference Report accompanying the 1988 amendments likewise

indicated that OIG personnel would not be permitted to engage in prosecutorial

functions, noting that “[t]he conferees do not intend that the IG should render

judgments on the exercise of prosecutorial or other litigative discretion in a

particular case or controversy.” H.R. Rep. No. 100-1020, at 25 (Conf. Rep.).

Because section 9(a) prohibits the Attorney General from transferring to OIG the

authority to conduct criminal proceedings, the Attorney General may not assign

OIG that authority pursuant to 28 U.S.C. § 515 or similar general delegation

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Department of Justice Inspector General’s Access to Information

statutes. As we have noted, different statutes that regulate the same subject matter

must be read in pari materia and given full effect to the extent possible. See Morton,

417 U.S. at 551. If a general delegation statute such as 28 U.S.C. § 515 were

construed to permit assignments to OIG that section 9(a) prohibits, then section 9(a)

would be effectively inapplicable to the Department and many agencies subject to

the IG Act, because numerous statutes grant the heads of agencies equally broad or

broader authority to delegate their statutory functions to subordinate officers. See,

e.g., 28 U.S.C. § 510 (providing that the Attorney General may authorize “any other

officer” of the Department to perform “any function of the Attorney General”

(emphases added)); 6 U.S.C. § 112(b)(1) (granting similar authority to the Secretary

of Homeland Security); 20 U.S.C. § 3472 (Secretary of Education); 31 U.S.C.

§ 321(b)(2) (Secretary of the Treasury). It is in our view implausible that Congress

intended section 9(a) to have such a limited effect, particularly in light of the

legislative history expressing Congress’s belief that this provision would in fact

prohibit OIG from engaging in prosecution or litigation. See H.R. Rep. No. 100-

1020, at 25 (Conf. Rep.); H.R. Rep. No. 100-771, at 9; H.R. Rep. No. 95-584, at 13.

We therefore think that, given the absence of any indication of congressional intent

to the contrary, section 9(a)—a specific provision limiting the transfer of functions

to inspectors general—is best construed as an exception to general delegation

provisions, like 28 U.S.C. § 515(a), that broadly authorize the assignment of the

Department’s functions to any subordinate officer or attorney. See infra p. 49

(explaining that if “a general permission or prohibition is contradicted by a specific

prohibition or permission,” then “the specific provision is construed as an exception

to the general one,” absent strong “textual indications that point in the other

direction” (quoting RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct.

2065, 2071–72 (2012))).

As a result, while the analysis in our OPR memorandum might inform the

question whether OIG investigations and reviews qualify as “dut[ies]” justifying

disclosure of grand jury materials under exception (A)(i), OIG attorneys are unlike

OPR attorneys in at least one critical respect. Like “virtually every attorney in the

Department of Justice,” OPR attorneys may in principle be delegated the Attorney

General’s authority to conduct criminal proceedings for the Department. Sells, 463

U.S. at 426; see id. at 428; OPR Memorandum at 8 (noting that OPR attorneys are

“delegee[s] of the Attorney General”). But OIG attorneys, as we have discussed, are

barred from being assigned this authority under the IG Act. Consequently, although

OIG personnel may seek to use grand jury materials in a manner that parallels the

use discussed in our OPR Memorandum, they do not fall within the category of

persons—attorneys for the government—who may obtain disclosure under

exception (A)(i). 14

14

OIG contends that multiple district court decisions have determined that OIG attorneys qualify for

disclosure under exception (A)(i), and questions whether this Office may render a legal opinion

29

Opinions of the Office of Legal Counsel in Volume 39

2.

Because exception (A)(i) does not authorize the disclosure of grand jury

materials to OIG, we have also considered whether a separate exception would

authorize that disclosure. Exception (A)(ii) provides:

Disclosure of a grand-jury matter—other than the grand jury’s

deliberations or any grand juror’s vote—may be made to . . . any

government personnel—including those of a state, state subdivision,

Indian tribe, or foreign government—that an attorney for the

government considers necessary to assist in performing that attorney’s

duty to enforce federal criminal law.

Fed. R. Crim. P. 6(e)(3)(A)(ii). Like disclosure under exception (A)(i), disclosure

under this exception may be made without prior judicial approval. However, unlike

disagreeing with those decisions. See OIG 2014 Memorandum at 15 & att. The decisions OIG cites are

one-page memorandum orders, issued by a single district judge, that authorized disclosure to OIG

attorneys under exception (A)(i). The relevant parts of the orders state, in their entirety, that because a

particular OIG investigation of “alleged misconduct before the grand jury” was “supervisory in nature

with respect to ethical conduct of Department employees,” “disclosure of grand jury materials to the OIG

constitutes disclosure to ‘an attorney for the government for use in the performance of such attorney’s

duty’” under exception (A)(i). In re Matters Occurring Before the Grand Jury Impaneled July 16, 1996,

Misc. No. 39 (W.D. Okla. June 4, 1998) (Russell, C.J.) (order) (quoting Fed. R. Crim. P. 6(e)(3)(A)(i));

id. (Dec. 8, 1998) (same); see id. (Nov. 15, 1999) (“Because in taking such actions, these Department

personnel would be engaged in a supervisory function, disclosure of grand jury materials to them

constitutes disclosure to ‘an attorney for the government for use in the performance of such attorney’s

duty.’”). Neither these orders, nor the underlying Department filings that sought disclosure, discussed or

analyzed the meaning of the terms “attorney for the government” or “authorized assistant.” As the

Supreme Court has explained, a “‘decision of a federal district court judge is not binding precedent in

either a different judicial district, the same judicial district, or even upon the same judge in a different

case.’” Camreta v. Greene, 131 S. Ct. 2020, 2033 n.7 (2011) (quoting 18 J. Moore et al., Moore’s Federal

Practice § 134.02[1][d] (3d ed. 2011)). Nor is a district court decision binding on the Executive Branch

in activities unrelated to the case in which the court’s decision was rendered. See In re Exec. Office of

the President, 215 F.3d 20, 24–25 (D.C. Cir. 2000) (per curiam). Consistent with this rule, the Office has

previously disagreed with district court decisions after independently analyzing the questions presented

and reaching contrary conclusions, including where the court espoused a view previously advanced by

the Department. See, e.g., Whether Proposals by Illinois and New York to Use the Internet and Out-of-

State Transaction Processors to Sell Lottery Tickets to In-State Adults Violate the Wire Act, 35 Op.

O.L.C. __, at *3–4 (Sept. 20, 2011) (available at http://www.justice.gov/olc/opinions.htm) (disagreeing

with the decisions of courts that had adopted a position previously advanced by the Criminal Division);

Applicability of the Antideficiency Act to a Violation of a Condition or Internal Cap Within an

Appropriation, 25 Op. O.L.C. 33, 52 (2001) (disagreeing with the “unexplained decision” of a district

court that appeared to interpret the Antideficiency Act in a manner “inconsistent with the Antideficiency

Act’s legislative history and evolution and with the rest of the (limited) caselaw”); Authority of the

President to Remove the Staff Director of the Civil Rights Commission and Appoint an Acting Staff

Director, 25 Op. O.L.C. 103, 105 (2001) (disagreeing with a district court decision subsequently vacated

as moot). For the reasons offered above, we respectfully disagree with the district court’s conclusion that

OIG attorneys may qualify for disclosure under exception (A)(i) solely because they perform supervisory

functions.

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Department of Justice Inspector General’s Access to Information

in the case of disclosures under exception (A)(i), the Rules provide that an attorney

for the government must “promptly provide the court that impaneled the grand jury

with the names of all persons to whom a disclosure has been made” under exception

(A)(ii), and “certify that the attorney has advised those persons of their obligation

of secrecy under this rule.” Id. 6(e)(3)(B). And a person to whom information is

disclosed under this exception “may use that information only to assist an attorney

for the government in performing that attorney’s duty to enforce federal criminal

law.” Id.

OIG employees clearly qualify as “government personnel” who may receive

disclosures under this exception. The language of that phrase is broad—particularly

when considered in light of the Rule’s explanation that it extends to personnel of a

“state, state subdivision, Indian tribe, or foreign government”—and comfortably

encompasses OIG employees. Id. 6(e)(3)(A)(ii). In addition, we have previously

observed that the use of the permissive phrase “considers necessary” in exception

(A)(ii) suggests that “Congress intended federal prosecutors to have broad leeway

in deciding what government personnel should have access to grand jury materials

for purposes of facilitating enforcement functions.” Disclosure of Grand Jury

Matters to the President and Other Officials, 17 Op. O.L.C. 59, 62 (1993)

(“Disclosure to the President”). 15 Consistent with this broad understanding of the

term, we have advised that exception (A)(ii) permits disclosures to law enforcement

officers, members of the intelligence community, and senior Administration

officials, among others. See Rule 6(e) Intelligence Community, 21 Op. O.L.C. at

161; Disclosure to the President, 17 Op. O.L.C. at 61. See generally Sells, 463 U.S.

at 436 (explaining that exception (A)(ii) was prompted by the need to make

disclosures to individuals such as “accountants” and “handwriting experts”); Fed R.

Crim. P. 6 advisory committee’s note (1977 Amendments) (“The phrase ‘other

government personnel’ includes, but is not limited to, employees of administrative

agencies and government departments.”). OIG employees are likewise “government

personnel” who may receive disclosures under exception (A)(ii).

In addition, a wide variety of Department attorneys qualify as “attorney[s] for

the government” who may authorize disclosures under this exception. As we have

discussed, that term includes the Attorney General, United States Attorneys, their

“authorized assistant[s],” and “any other attorney authorized by law to conduct

proceedings under these rules as a prosecutor”—and thus extends to any Department

attorney who is (and perhaps any Department attorney who may be) authorized to

15

Consistent with our prior opinions, we presume that Congress intended “necessary” in this context

to mean useful or conducive, rather than strictly required. See Disclosure to the President, 17 Op. O.L.C.

at 61 (stating that exception (A)(ii) permits disclosure “for purposes of obtaining . . . assistance”); Rule

6(e) Intelligence Community, 21 Op. O.L.C. at 161 (similar); cf., e.g., McCulloch v. Maryland, 17 U.S.

(4 Wheat.) 316, 413, 415 (1819) (construing the word “necessary” in the Necessary and Proper Clause

to mean “convenient,” “useful,” or “conducive”); Cellular Telecomms. & Internet Ass’n v. FCC, 330

F.3d 502, 504 (D.C. Cir. 2003) (deferring to agency’s interpretation of “necessary” in telecommuni-

cations statute as referring to “a strong connection” between means and ends).

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conduct criminal proceedings on behalf of the federal government. Fed. R. Crim. P.

1(b)(1); see supra pp. 25–27.

The scope of permissible disclosure to OIG officials under exception (A)(ii) thus

turns on the circumstances in which a Department attorney—including a member

of Department leadership—may reasonably “consider[]” an OIG official “necessary

to assist in performing that attorney’s duty to enforce federal criminal law.” Fed. R.

Crim. P. 6(e)(3)(A)(ii). This Office has previously noted several relatively

straightforward ways in which this language limits the permissible scope of

disclosures. To begin with, consistent with the plain language of this provision, a

Department attorney may make a disclosure only for the purpose of obtaining

assistance in performing her duty to enforce “federal criminal law.” Id. (emphasis

added). Thus, an attorney may not authorize disclosures under exception (A)(ii) to

assist in the performance of her civil or administrative duties, or to senior White

House policymakers for purposes of “general policymaking.” Disclosure to the

President, 17 Op. O.L.C. at 61–62, 64; see Sells, 463 U.S. at 427. We have also

observed that, because disclosures under exception (A)(ii) may be made only to a

person that a Department attorney “considers necessary to assist in performing that

attorney’s duty,” Fed. R. Crim. P. 6(e)(3)(A)(ii) (emphasis added), an attorney may

not make disclosures to assist in the performance of duties she herself does not hold.

See Rule 6(e) Intelligence Community, 21 Op. O.L.C. at 171. In addition, we have

advised that the same phrase requires that any disclosure be made “in accordance

with an actual determination made by an attorney.” Memorandum for Philip B.

Heymann, Assistant Attorney General, Criminal Division, and William P. Tyson,

Acting Director, Executive Office for United States Attorneys, from John M.

Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Computerized

Preservation and Use of Grand Jury Material at 4 (May 2, 1980). Hence, while an

attorney has “broad leeway” in judging what disclosures are proper, Disclosure to

the President, 17 Op. O.L.C. at 62 (citing S. Rep. No. 95-354, at 8 (1977)), she must

always exercise her independent judgment before authorizing the disclosure of

grand jury information to a particular recipient. Thus, for example, we concluded

that an attorney could not place grand jury materials on a computerized database

that law enforcement officers could use for purposes of which the attorney was

unaware. See Memorandum for Roger B. Clegg, Acting Assistant Attorney General,

Office of Legal Policy, and John Mintz, Assistant Director and Legal Counsel, FBI,

from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal

Counsel, Re: Authority of FBI Agents to Exchange Grand Jury Material Pursuant

to Rule 6(e)(3)(A)(ii) of the Federal Rules of Criminal Procedure (Feb. 14, 1984)

(“Shanks Memorandum”).

Within these limitations, we believe exception (A)(ii) permits Department

attorneys to authorize the disclosure of grand jury information to OIG both to assist

with individual law enforcement actions and, where the disclosures are authorized

by members of the Department leadership, to assist in the direction and supervision

of the Department’s law enforcement programs and operations. First, because an

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attorney’s “duty to enforce federal criminal law” plainly includes his duty to

prosecute criminal offenses, exception (A)(ii) permits Department attorneys to

authorize disclosure of grand jury materials to OIG in connection with OIG

investigations and reviews those attorneys believe could assist them with ongoing

or potential prosecutions. Exception (A)(ii) was drafted specifically in order to

enable prosecutors to make disclosures to investigators who could develop the basis

for and aid in prosecutions. See Sells, 463 U.S. at 436 (stating that exception (A)(ii)

was enacted “because Justice Department attorneys found that they often need

active assistance from . . . investigators from the [FBI], IRS, and other law

enforcement agencies”); Fed. R. Crim. P. 6 advisory committee’s note (1977

Enactment) (stating that “[o]ften the prosecutors need the assistance of the agents

in evaluating evidence” or conducting “further investigation”). As we have

discussed, OIG agents have a number of investigative duties, and are required to

“report expeditiously to the Attorney General whenever the Inspector General has

reasonable grounds to believe there has been a violation of Federal criminal law.”

5 U.S.C. app. § 4(d); see Investigative Officers, 14 Op. O.L.C. at 109. Hence, a

Department attorney may authorize disclosure of information to OIG in connection

with an OIG investigation that the attorney concludes will be likely to aid in an

ongoing or potential prosecution in which the attorney is involved.

Second, we think that exception (A)(ii) permits a Department leadership official to

authorize disclosure of grand jury information to OIG in connection with OIG

investigations or reviews that the official believes could assist her in carrying out her

duty to conduct programmatic or policy supervision of the Department’s criminal law

enforcement activities. As we discussed in analyzing the scope of permissible

disclosure under Title III, programmatic and policy supervision can affect the

prevention, investigation, or prosecution of criminal conduct as directly as individual

trial decisions, see Van de Kamp, 555 U.S. at 346, and constitute a central means by

which the Attorney General and her assistants direct and control the Department’s law

enforcement and prosecutorial functions. See supra pp. 14–15. Such activities are thus

part of Department leadership’s “duty to enforce federal criminal law” under the plain

language of that phrase. Further, it would be reasonable for a member of Department

leadership to “consider[]” many OIG reviews “necessary to assist” her in performing

this duty. Fed. R. Crim. P. 6(e)(3)(A)(ii). As we also noted in the Title III context,

Congress established OIG to “keep[] the head of the [Department] . . . informed about

problems” in the Department and to recommend “corrective action,” 5 U.S.C. app.

§ 2(3), and OIG’s reviews have historically provided the Department’s leadership

with “critical advice, information, and insights in connection with the exercise of their

supervisory responsibilities over the Department’s criminal law enforcement

programs, policies, and practices,” Yates Letter at 3. It would therefore generally be

reasonable for a member of Department leadership to conclude that an OIG

investigation or review that concerns, or is designed to develop recommendations

about, the manner in which the Department enforces federal criminal law is “necessary

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to assist” in the disclosing official’s supervision of that function on a programmatic or

policy basis.

We acknowledge that certain language in Sells might be read to suggest a

narrower scope of appropriate disclosures. In particular, various statements in the

opinion could be read to suggest that an attorney’s “duty” under exception (A)(i)

includes only her duty to conduct or supervise a particular pending prosecution. See,

e.g., Sells, 463 U.S. at 427 (“We hold that (A)(i) disclosure is limited to use by those

attorneys who conduct the criminal matters to which the materials pertain.”

(emphasis added)); id. at 429 n.11 (stating that “every attorney (including a super-

visor) who is working on a prosecution may have access to grand jury materials, at

least while he is conducting criminal matters” (emphasis added)); id. at 438 (noting

that the “primary objection” to a proposal to allow disclosures to other governmental

personnel was a concern that they would use grand jury information “to pursue civil

investigations or unrelated criminal matters” (emphasis added)). And although

Sells concerned exception (A)(i)—which authorizes disclosures for use in perform-

ing an attorney’s “duty”—rather than exception (A)(ii)—which authorizes

disclosure in connection with an attorney’s “duty to enforce federal criminal law”—

the Sells Court explained that the “criminal-use limitation” in exception (A)(ii)

“merely ma[de] explicit what [Congress] believed to be already implicit in the

existing (A)(i) language.” Id. at 436. This suggests that the Court would have

viewed its analysis of the limitations on exception (A)(i) as applicable to exception

(A)(ii) as well. Thus, it might be argued that programmatic and policy supervision

does not fall within an attorney’s “duty to enforce federal criminal law” because it

differs from the duties discussed in Sells in two respects: first, it involves

supervision of law enforcement agents in addition to prosecutors; and second, it

concerns criminal matters unrelated to the grand jury investigation in which the

information to be disclosed was developed. It might also be argued that disclosure

to OIG is different from the disclosures contemplated in Sells because OIG will

frequently use grand jury information to investigate past conduct in completed law

enforcement operations, rather than to assist in ongoing prosecutions.

In our view, however, notwithstanding these distinctions, Sells and subsequent

opinions support reading exception (A)(ii) to permit disclosures to OIG in

connection with Department leadership’s duties of programmatic and policy

supervision. With respect to the first arguable distinction—between supervision of

law enforcement officers and supervision of prosecutors—Sells expressly

recognized that a prosecutor’s authority to “command[]” law enforcement officers

is a critical means by which she carries out her prosecutorial duties and renders

assistance to the grand jury. Sells, 463 U.S. at 430 (stating that “a modern grand jury

would be much less effective without the assistance of the prosecutor’s office and

the investigative resources it commands”); id. at 430 n.13 (“Not only would the

prosecutor ordinarily draw up and supervise the execution of subpoenas, but also he

commands the investigative forces that might be needed to find out what the grand

jury wants to know.”). Moreover, as Sells also recognized (and as we noted above),

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Congress added exception (A)(ii) in part to ensure that prosecutors could obtain the

assistance of law enforcement officers in developing the basis for and conducting

prosecutions. See id. at 436. Sells therefore fully supports the proposition that the

duty to supervise prosecutions includes a duty to supervise law enforcement officers

in conduct that assists with prosecutions.

We likewise believe that the second arguably distinctive characteristic of

programmatic and policy supervision—that it concerns criminal matters unrelated

to the grand jury investigation in which the materials being sought were originally

developed—is consistent with Sells. Lower courts, treatises, and this Office have

repeatedly interpreted Sells to permit disclosure in connection with any “criminal

matters to which [grand jury] materials pertain,” id. at 427, and not merely those

matters in which the information was developed. See, e.g., Impounded, 277 F.3d

407, 413 (3d Cir. 2002) (holding that the disclosure of grand jury materials to a

federal prosecutor in another district was permissible under exception (A)(i)); 1 Sara

Sun Beale et al., Grand Jury Law and Practice § 5:8, at 5-58 (2d ed. 2014) (“Beale”)

(stating that an attorney may make a disclosure under exception (A)(i) “in

connection with a separate prosecution”); Shanks Memorandum at 2 (concluding

that exception (A)(ii) authorizes disclosure to FBI agents assisting in “a specific

criminal investigation” unrelated to the initial grand jury investigation); cf. Fed. R.

Crim. P. 6(e)(3)(C) (permitting the automatic disclosure of grand jury materials to

“another federal grand jury”). This Office has also previously concluded that the

disclosure authorization in exception (A)(ii) extends to general supervision of law

enforcement activities as well as to specific prosecutions: In our Rule 6(e)

Intelligence Community opinion, for example, we advised that the Attorney General

may make disclosures to assist “a broad criminal law enforcement program for

which [she] is responsible,” 21 Op. O.L.C. at 171; and in our Disclosure to the

President opinion, we cited legislative history supporting the view that “Congress

intended federal prosecutors to have broad leeway in deciding what government

personnel should have access to grand jury materials for purposes of facilitating

enforcement functions,” 17 Op. O.L.C. at 62. See also 1 Beale § 5:8, at 5-58 (stating

that attorneys may disclose materials “in connection with the evaluation or planning

of broad prosecutorial policies”).

Consistent with these authorities, we do not think the language in Sells referring

to specific “prosecutions,” e.g., 463 U.S. at 429 n.11, should be read to preclude

disclosures that an attorney believes could aid the general supervision of the

Department’s law enforcement programs and activities. To begin with, the Court in

Sells addressed the permissibility of disclosure only in connection with civil

litigation, see id. at 420; it did not discuss, and had no occasion to address, the

permissible scope of disclosure in connection with programmatic supervision of

criminal law enforcement. Moreover, other language in the opinion is consistent

with permitting disclosure for broad supervisory purposes. The Court expressly

noted that exception (A)(ii) gives prosecutors a “free hand concerning use of grand

jury materials” in connection with criminal matters. Id. at 441–42; see also

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Disclosure to the President, 17 Op. O.L.C. at 62 (noting the “broad leeway”

possessed by attorneys under exception (A)(ii)). Further, permitting disclosure for

broad supervisory purposes would not raise the policy concerns that led the Sells

Court to deem disclosure for civil purposes unlawful: because such disclosure would

not be used in connection with investigating the subjects of or witnesses in the

underlying grand jury investigations, it would not discourage witnesses from

testifying, create incentives for prosecutors to misuse the grand jury, or subvert

limits on civil discovery. See Sells, 463 U.S. at 432–34; OPR Memorandum at 4–6

(similarly distinguishing Sells on this basis). In addition, prohibiting such disclosure

would have the same kinds of disruptive effects we identified in connection with

Title III, by preventing Department leadership from obtaining (or disclosing) Rule

6(e) information for the purpose of conducting policy or programmatic supervision

of grand jury proceedings or other law enforcement programs that used grand jury

information. For all these reasons, we doubt that if the Supreme Court had squarely

addressed the question, it would have concluded that exception (A)(ii) does not

permit the Attorney General and her assistants to obtain or disclose grand jury

information in order to set policies and develop guidance for law enforcement

purposes.

Finally, while it is true that OIG officials would frequently use grand jury

information to evaluate completed law enforcement operations rather than to assist

in ongoing operations or prosecutions, “supervisors . . . must be able to evaluate

[past] conduct once a course of action has been set” to “perform properly their

oversight role.” OPR Memorandum at 7. As we explained in our OPR Memo-

randum, “post mortem review” of the conduct of a prosecution is necessary to

evaluate and, if appropriate, take administrative action with respect to that conduct.

Id. at 8. OIG investigations and reviews of the past conduct of Department criminal

law enforcement programs likewise help Department leadership evaluate that

conduct and take appropriate corrective action if necessary. We therefore believe

that, notwithstanding the apparently narrow language in Sells, Department

leadership’s “duty to enforce federal criminal law” includes its duties to supervise

Department law enforcement efforts on a programmatic and policy basis, and that

it would generally be reasonable for Department leadership to “consider[]” it

“necessary to assist” it in performing these duties to authorize the disclosure of

grand jury information to OIG in connection with investigations or reviews that

concern, or are designed to develop recommendations about, the manner in which

the Department carries out its criminal law enforcement functions. Fed. R. Crim. P.

6(e)(3)(A)(ii).

As in the Title III context, however, we do not think that exception (A)(ii) would

permit Department attorneys to disclose grand jury material to OIG in relation to all

OIG audits, investigations, and reviews. In particular, we doubt that a Department

leadership official may authorize disclosures in connection with investigations that

are only tangentially related to programmatic and policy supervision of law

enforcement activities, such as routine financial audits of components that happen

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to engage in law enforcement functions. Similarly, especially in light of Sells, we

do not believe a Department attorney may authorize disclosure of grand jury

information to OIG in connection with OIG investigations or reviews that primarily

relate to civil enforcement or recovery efforts (such as investigations designed to

assist the Department in recovering funds through a False Claims Act suit), rather

than criminal prosecutions.

C.

The third and final statutory prohibition on disclosure we consider is section 626

of FCRA. Congress enacted FCRA to ensure “fair and accurate credit reporting,”

which it deemed “essential to the continued functioning of the banking system.”

15 U.S.C. § 1681(a)(1). FCRA comprehensively regulates the “confidentiality,

accuracy, relevancy, and proper utilization” of information held by consumer credit

reporting agencies. Id. § 1681(b). Among other things, it restricts the circumstances

in which consumer reporting agencies may disclose consumer credit reports, id.

§ 1681b; specifies what information may be contained in those reports, id. § 1681c;

and imposes civil, administrative, and sometimes criminal liability for failure to

comply with its requirements, id. §§ 1681n–1681s.

In 1996, Congress amended FCRA to add a new basis for disclosure of consumer

credit information. See Intelligence Authorization Act of 1996, Pub. L. No. 104-93,

sec. 601(a), § 624, 109 Stat. 961, 974 (codified at 15 U.S.C. § 1681u). The new

provision, now FCRA section 626, authorizes the FBI to present a consumer credit

reporting agency with a written request, signed by the Director of the FBI or his

designee, certifying that the FBI seeks certain information “for the conduct of an

authorized investigation to protect against international terrorism or clandestine

intelligence activities.” 15 U.S.C. § 1681u(a). Upon receipt of such a National

Security Letter (“NSL”), a credit agency must disclose to the FBI the “names and

addresses of all financial institutions . . . at which a consumer maintains or has

maintained an account,” id., and “identifying information respecting a consumer,

limited to name, address, former addresses, places of employment, or former places

of employment,” id. § 1681u(b). Section 626(f) bars further dissemination of this

information except in limited circumstances. It provides:

The Federal Bureau of Investigation may not disseminate information

obtained pursuant to this section outside of the Federal Bureau of

Investigation, except to other Federal agencies as may be necessary

for the approval or conduct of a foreign counterintelligence

investigation, or, where the information concerns a person subject to

the Uniform Code of Military Justice, to appropriate investigative

authorities within the military department concerned as may be

necessary for the conduct of a joint foreign counterintelligence

investigation.

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Id. § 1681u(f). FCRA makes any violation of this section by a federal agency or

officer grounds for civil damages or disciplinary action. Id. § 1681u(i)–(j).

OIG argues that under the terms of section 626(f), it may obtain unrestricted

access to consumer information that the FBI has obtained under section 626. In

OIG’s view, it is exempt from the limitations on disclosure contained in

section 626(f) because it is part of the same agency as the FBI. See OIG 2014

Memorandum at 12–13; OIG FCRA Memorandum at 3. We consider this argument

below. In addition, although OIG does not make the argument, we consider whether

OIG may obtain section 626 information under the first exception set forth in

section 626(f), which permits the FBI to make disclosures “to other Federal agencies

as may be necessary for the approval or conduct of a foreign counterintelligence

investigation.” 15 U.S.C. § 1681u(f). As we will explain, we conclude that although

OIG is subject to section 626(f)’s prohibition on disclosure, it may nonetheless

obtain covered information under that provision’s first exception in certain

circumstances.

1.

OIG argues that it is permitted to obtain section 626 information from the FBI in

connection with any of its audits, investigations, or reviews. It contends that, while

section 626(f) bars the FBI from disclosing information obtained pursuant to an

NSL to “other Federal agencies,” except “as may be necessary for the approval or

conduct of a foreign counterintelligence investigation,” this bar does not apply to

OIG because both OIG and the FBI are components of the Department. See OIG

FCRA Memorandum at 3. OIG argues that this reading of section 626(f) is

supported by the text of that provision’s first exception, by implication from a

statute enacted subsequent to section 626, and by the general purposes of OIG

reviews. See OIG 2014 Memorandum at 12–14; OIG FCRA Memorandum at 2–4.

OIG’s interpretation is difficult to square with the plain language of the statute.

Section 626(f) states that the FBI “may not disseminate information obtained

pursuant to this section outside of the Federal Bureau of Investigation” except in

two specific circumstances. On its face, this provision unambiguously bars the FBI

from disclosing information outside of the FBI, unless an exception applies. OIG is

outside of the FBI, and so falls within this prohibition on disclosure. OIG’s

argument—that it is exempt from the prohibition because it is a Department

component—would require reading “Federal Bureau of Investigation” to mean

“Department of Justice.” But these two entities are not equivalent, and Congress

chose to refer to the former rather than the latter in section 626(f).

OIG disputes this straightforward reading of section 626(f) by pointing to the

provision’s first exception, which permits the FBI to disclose section 626

information to “other Federal agencies.” OIG reasons that because other

components of the Department are part of the same agency as the FBI, and “not an

‘other Federal agency’” relative to the FBI, they cannot qualify for disclosure under

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this exception. OIG FCRA Memorandum at 2. As a consequence, this argument

continues, reading section 626(f) as its plain text indicates would lead to the unlikely

result that the FBI could never disclose section 626 information to Department

officials outside the FBI—a result that, as OIG explains, would be inconsistent with

the Department’s longstanding practice of making section 626 information

available to the National Security Division (“NSD”) for purposes of overseeing the

FBI’s operations. See id.

We agree that it is highly unlikely that Congress would have barred the FBI from

disclosing section 626 information within the Department, particularly while

permitting such disclosure to agencies outside the Department. However, we

disagree that the statute’s reference to “other Federal agencies” compels such a

result. Although the term “agency” is sometimes used to refer to the Department of

Justice as a whole, it is also used to refer to components within the Department.

Compare 28 U.S.C. § 527 (distinguishing between “the Department of Justice” and

“other Federal agencies”) and 5 U.S.C. § 5721(1)(A) (“[f]or the purpose of this

subchapter . . . ‘agency’ means . . . an Executive agency”) with 28 U.S.C. § 509

(vesting “all functions of agencies and employees of the Department of Justice” in

the Attorney General) and 5 U.S.C. § 551 (“For the purpose of this subchapter . . .

‘agency’ means each authority of the Government of the United States, whether or

not it is within or subject to review by another agency.”). In our view, the term

“agency” is best read in the latter sense in section 626(f). Notably, the statute does

not simply state that the FBI “may not disseminate [section 626 information], except

to other Federal agencies” for certain purposes; it says the FBI “may not disseminate

[section 626 information] outside the FBI, except to other Federal agencies” for

those purposes. 15 U.S.C. § 1681u(f) (emphasis added). The express reference to

“outside the FBI” strongly suggests that “other Federal agencies” refers to any

federal entity other than the Federal Bureau of Investigation, including other

components of the Department.

This conclusion is reinforced by the significant role that other Department

components play in “the approval or conduct of [the FBI’s] foreign

counterintelligence investigation[s].” Id. For decades, the Attorney General has

been authorized to “supervis[e]” and “establish” “regulations” concerning the FBI’s

counterintelligence activities. Exec. Order No. 12333, § 1.14, 46 Fed. Reg. 59941,

59949 (Dec. 4, 1981); see The Attorney General’s Guidelines for Domestic FBI

Operations at 5 (Sept. 2008) (“AG Guidelines”) (available at http://www.justice.

gov/sites/default/files/ag/legacy/2008/10/03/guidelines.pdf, last visited July 20,

2015) (setting guidelines for the conduct of domestic FBI operations, including

“counterintelligence activities”); Memorandum for the Director, FBI, et al., from

the Attorney General, Re: Intelligence Sharing Procedures for Foreign Intelligence

and Foreign Counterintelligence Investigations Conducted by the FBI (Mar. 6,

2002); 28 C.F.R. § 0.72 (assigning counterintelligence oversight functions to NSD).

By permitting disclosure for the “approval” of counterintelligence investigations,

Congress presumably intended to permit the FBI to make disclosures consistent with

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this longstanding grant of supervisory authority. Indeed, a prior version of the bill

would have made the first exception applicable exclusively to disclosures within the

Department of Justice. See Comprehensive Terrorism Prevention Act of 1995,

S. 735, 104th Cong. § 502(a) (1995) (“The [FBI] may not disseminate information

obtained pursuant to this section outside of the [FBI], except . . . to the Department

of Justice, as may be necessary for the approval or conduct of a foreign

counterintelligence operation.”). It is unlikely that, in later broadening the scope of

the exception to allow disclosures to “other Federal agencies,” Congress intended

to exclude disclosures to the agency that was previously the exception’s sole

beneficiary.

OIG also argues that its view that section 626(f) permits disclosure to OIG finds

support in a statutory provision Congress enacted after section 626: section 119 of

the USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No.

109-177, 120 Stat. 192, 219 (“Patriot Reauthorization Act”). As OIG points out,

section 119 of the Patriot Reauthorization Act directed OIG to “perform an audit of

the effectiveness and use, including any improper or illegal use, of national security

letters issued by the Department of Justice,” including NSLs issued pursuant to

section 626. Id. § 119(a), (g)(4). OIG argues that “[f]ulfilling the mandates of the

Patriot Reauthorization Act . . . clearly required [it] to have access to the ‘raw data’

the Department obtained through [NSLs], including Section [626] credit report

information.” OIG 2014 Memorandum at 13. And because that Act “contained no

provision granting the OIG access to Section [626] information,” OIG reasons that

“in 2005 Congress believed the OIG already had access to FCRA information in

order to audit such dissemination.” Id. (emphasis added). But this provision suggests

at most that the Congress that enacted the Patriot Reauthorization Act believed OIG

would have access to section 626 information as necessary for OIG to evaluate the

legality and effectiveness of the Department’s use of NSLs. And for reasons we

explain below, we believe OIG is eligible to receive section 626 information for that

purpose under section 626(f)’s first exception. See infra Part II.C.2. The Patriot

Reauthorization Act thus does not provide a basis for reading section 626(f),

contrary to its plain text, to grant OIG unfettered access to such information.

Finally, OIG contends that the limits on dissemination contained in section 626

were intended to protect consumer privacy, and that it would undermine rather than

further that purpose to prohibit OIG from obtaining the information necessary to

determine whether the FBI is abiding by section 626’s requirements. See OIG 2014

Memorandum at 12–13; OIG FCRA Memorandum at 3. We agree that, in enacting

section 626, Congress sought to build “safeguards . . . into the legislation” that

would “minimiz[e]” the “threat to privacy” posed by the FBI’s ability to use NSLs.

H.R. Rep. No. 104-427, at 36 (1995); see also 15 U.S.C. § 1681(a)(4) (finding “a

need to insure that consumer reporting agencies exercise their grave responsibilities

with . . . a respect for the consumer’s right to privacy”). But it is entirely consistent

with Congress’s purpose of protecting consumer privacy to prevent broad disclosure

of consumer information even within the Department of Justice. Nor would a

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restriction on disclosure outside the FBI necessarily preclude all oversight of the use

of section 626 authority, insofar as the FBI’s internal audit department or Office of

Professional Responsibility could conduct reviews of the use of that authority.

Further, as we explain below, we believe OIG may obtain section 626 information

in order to monitor the FBI’s compliance with FCRA’s disclosure restrictions

pursuant to section 626(f)’s first exception. The statute’s purpose thus does require

OIG to have blanket access to section 626 information.

2.

We now consider whether OIG is eligible to receive disclosures under

section 626(f)’s first exception, which authorizes the FBI to disclose information

obtained pursuant to an NSL “to other Federal agencies as may be necessary for the

approval or conduct of a foreign counterintelligence investigation.” 15 U.S.C.

§ 1681u(f). As we have discussed, components of the Department outside the FBI,

including OIG, are “other Federal agencies” within the meaning of this provision.

See supra pp. 38–40. Consequently, this exception permits OIG to obtain access to

section 626 information “as may be necessary for the approval or conduct of a

foreign counterintelligence investigation.” 15 U.S.C. § 1681u(f).

In our view, this language authorizes disclosure in two broad circumstances. First,

and most straightforwardly, it authorizes disclosures as necessary to facilitate approval

of a particular foreign counterintelligence investigation, or to obtain assistance in

conducting such an investigation. 16 For example, the first exception would allow the

FBI to disclose information to Department attorneys in order to enable those attorneys

to file an application for electronic surveillance pursuant to Title III or the Foreign

Intelligence Surveillance Act of 1978, 50 U.S.C. §§ 1801 et seq., or to advise the FBI

on the legality of a method the FBI proposes to use in an investigation. In addition,

the first exception would allow the FBI to disclose information to Department

supervisors to enable them to monitor a particular foreign counterintelligence

operation, to ensure that it was being conducted lawfully and in conformance with

Department guidelines.

Second, we believe that section 626(f)’s first exception permits disclosure of

information as necessary for the programmatic and policy supervision of foreign

counterintelligence investigations generally—that is, to ensure that investigations

are (or were) approved or conducted in accordance with applicable statutes,

regulations, and guidelines; to identify systemic problems in the approval or conduct

of investigations; and to update guidelines and procedures in response to identified

deficiencies. It is true that section 626(f) authorizes disclosures only as necessary

for the approval or conduct of “a foreign counterintelligence investigation.” But

Congress has instructed that “unless the context indicates otherwise . . . words

16

As in the case of Rule 6(e)(3)(A)(ii), we presume that Congress used the word “necessary” to mean

useful or conducive rather than required. See supra note 15.

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importing the singular include and apply to several persons, parties, or things.”

1 U.S.C. § 1; see also Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 132 S. Ct.

1670, 1681 (2012) (explaining that the meaning of the word “a” and its variants

“turns on its context”). In this case, we have not found any indication in the statute

or its legislative history—apart from the use of the phrase “a[n] . . . investigation”

itself—that Congress intended to permit disclosures in connection with only one

investigation at a time. Nor, of particular relevance here, can we find any indication

that Congress intended to prevent Department leadership officials from obtaining

information protected by section 626(f) for use in supervising the FBI’s conduct of

foreign counterintelligence investigations. In a manner similar to that discussed in

the Title III and Rule 6(e) contexts, Department leadership would be severely

constrained in its ability to supervise the FBI’s conduct of such investigations on a

programmatic or policy basis, and to supervise the FBI’s use of NSLs issued

pursuant to section 626 on a similar basis, if it could not obtain section 626

information for that purpose. Indeed, under guidance issued by Department

leadership, the FBI routinely provides section 626 information to other Department

components to assist in such supervision. See, e.g., AG Guidelines at 10–11

(authorizing disclosure of section 626 information to NSD for supervisory

purposes). And, as noted above, Congress likewise assumed in the Patriot

Reauthorization Act that OIG would be able to obtain the “raw data” needed to

conduct a review of the FBI’s use of NSLs. See supra p. 40. In light of these

considerations, we believe that section 626(f)’s first exception permits the FBI to

disclose section 626 information not only to obtain assistance in “the approval or

conduct” of a particular foreign counterintelligence investigation, but also to aid in

supervision of “the approval or conduct” of foreign counterintelligence

investigations generally.

OIG may in principle obtain section 626 information under either of these

rationales. It appears unlikely that the FBI would need to disclose section 626

information to OIG to obtain assistance in the approval or conduct of a particular

foreign counterintelligence investigation, since OIG involvement in such investiga-

tions would generally entail exercising “program operating responsibilities” that the

Attorney General may not assign to OIG. 5 U.S.C. app. § 9(a); see also Authority to

Conduct Regulatory Investigations, 13 Op. O.L.C. at 61–62. However, there might

be rare circumstances in which a foreign counterintelligence investigation was

intertwined with an investigation of internal misconduct. In such circumstances, it

is conceivable that OIG could obtain section 626 information to facilitate the

conduct of that investigation.

In other circumstances, OIG could obtain information under the broader

supervisory rationale. As we have noted elsewhere, OIG plays a central role in helping

Department leadership supervise the Department’s law enforcement activities through

both reviews of misconduct and programmatic reviews intended to help improve law

enforcement operations in the future. See supra pp. 16–18, 33–34. In the context of

section 626, it is reasonable to conclude that OIG investigations and reviews that could

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inform decisions by Department leadership concerning supervision of foreign

counterintelligence investigations—such as OIG’s congressionally-mandated review

of the FBI’s use of NSLs—are “necessary for the approval or conduct of” those

investigations within the meaning of section 626(f). An OIG review of foreign

counterintelligence investigations could, for example, lead to changes in the process

for authorizing such investigations, or help leadership officials ensure that

investigations are carried out lawfully. Indeed, OIG’s review of the FBI’s use of NSLs

illustrates how such a process might work. After that review uncovered serious

problems with the FBI’s use of NSLs, the Department implemented a number of

measures aimed at ensuring greater supervision and control of the FBI’s activities. See

Fact Sheet: Department of Justice Corrective Actions on the FBI’s Use of National

Security Letters (Mar. 20, 2007) (available at http://www.justice.gov/archive/opa/pr/

2007/March/07_nsd_168.html, last visited July 20, 2015) (“Corrective Actions on the

FBI’s Use of NSLs”). These measures included retrospective and continuing audits of

the FBI’s NSL usage designed to identify potential legal violations, as well as

measures intended to allow the Attorney General to promptly address needed changes

in policy, training, and oversight. Id. Because investigations and reviews of this kind

concern, or are designed to develop recommendations about, leadership decisions

regarding the approval or conduct of foreign counterintelligence investigations, they

are in our view “necessary to the approval or conduct” of such investigations as that

phrase is used in section 626(f).

This reading of section 626(f) is further supported by the FBI’s practice of

providing information obtained through NSLs to NSD to facilitate NSD’s

supervision of the FBI’s compliance with applicable laws and guidelines in matters

relating to national security and foreign intelligence. See AG Guidelines at 10–11.

OIG correctly notes that NSD was given responsibility to oversee the FBI’s

activities following OIG’s critical review of the FBI’s use of NSLs, and that NSD’s

reviews are patterned after OIG reviews. See NSD E-mail; see also OIG FCRA

Memorandum; Corrective Actions on the FBI’s Use of NSLs. It would be

incongruous to conclude that the FBI may disseminate section 626 information to

NSD because its reviews are “necessary for the approval or conduct of a foreign

counterintelligence investigation,” but that the FBI is barred from providing the

same information to OIG in connection with reviews that share a similar purpose

and methodology, and likewise assist the Department’s leadership in its supervisory

functions. For reasons similar to those set forth in our discussion of Title III, see

supra p. 18, we do not believe that OIG’s relative independence from the

Department’s leadership makes its reviews less valuable to leadership, or less

“necessary for the approval or conduct” of foreign counterintelligence investiga-

tions, than the comparable reviews performed by NSD.

Accordingly, we conclude that the FBI may disseminate section 626 information

to OIG in connection with investigations and reviews that concern, or are designed

to develop recommendations about, leadership decisions regarding the approval or

conduct of foreign counterintelligence investigations. This conclusion, however, is

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subject to the same limitation we have explained in other contexts: OIG audits,

investigations, and reviews that have only an attenuated connection to Department

leadership’s supervisory responsibilities relating to foreign counterintelligence

investigations, such as routine financial audits of the FBI entities that carry out such

investigations, would likely not qualify for disclosure under section 626. See supra

pp. 18–19, 36–37 (discussing similar limit in the context of Title III and Rule 6(e)

disclosures).

*****

In sum, Title III, Rule 6(e), and FCRA permit the disclosure of covered

information in connection with many of OIG’s investigations and reviews. Title III

permits a Department investigative or law enforcement officer to disclose to OIG

the contents of intercepted communications to the extent that disclosure could aid

either the disclosing official or OIG in the performance of their respective duties

related to law enforcement—including duties related to Department leadership’s

programmatic or policy supervision of the Department’s law enforcement activities.

Rule 6(e), similarly, permits the disclosure of grand jury materials to OIG if an

attorney for the government determines that such disclosure could assist her in the

performance of her criminal law enforcement duties, including any supervisory law

enforcement duties that attorney may have. And FCRA permits the FBI to disclose

to OIG consumer information it obtained pursuant to section 626, if such a

disclosure could assist in the approval or conduct of foreign counterintelligence

investigations, including in the supervision of such investigations on a program-

matic or policy basis. 17

These statutes do not, however, authorize Department officials to disclose

protected information to OIG in connection with all of OIG’s activities. As we have

noted, Title III and Rule 6(e) do not permit disclosures that have either an attenuated

or no connection with the conduct of the Department’s criminal law enforcement

programs and operations, and section 626 of FCRA does not permit disclosures that

have either an attenuated or no connection with the approval or conduct of foreign

counterintelligence investigations. Thus, for example, Title III, Rule 6(e), and section

626 do not permit OIG to obtain covered information to assist in investigations of the

Department’s civil activities that are only tangentially related to criminal law

enforcement or foreign counterintelligence efforts, or to conduct routine financial

audits of Department components. Even when these statutes permit disclosures to

OIG, moreover, they impose certain procedural preconditions on those disclosures.

17

You have not asked, and this opinion does not address, what further disclosures OIG may make of

sensitive information it receives under Title III, Rule 6(e), or FCRA. We stress, however, that nothing in

this opinion is intended to suggest that OIG may disclose protected materials in a public report.

Information received by OIG remains subject to the statutory restrictions on disclosure, and OIG may

further disclose that information only to the extent permitted by those restrictions and any other

applicable laws.

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Disclosures under Title III require an assessment of whether a particular OIG

investigation is appropriate to the proper performance of an official duty related to law

enforcement. Disclosures under Rule 6(e) require an independent judgment, made by

an attorney for the government, that OIG assistance is necessary to perform that

attorney’s duty to enforce criminal law, and further require compliance with certain

additional procedural obligations. And disclosures under section 626 of FCRA require

an assessment of whether an OIG investigation is “necessary for the approval or

conduct” of foreign counterintelligence investigations.

If section 6(a)(1) of the IG Act displaced the limitations on disclosure in these

statutes, it would—unlike these statutory exceptions—permit unconstrained

disclosure of all protected information to OIG. Thus, OIG could receive information

protected by Title III, Rule 6(e), and section 626 in connection with its

investigations of the Department’s civil activities, its routine financial or

administrative audits, and any other of its authorized activities. Moreover,

information already available to OIG under the terms of Title III, Rule 6(e), and

section 626 would be available without a prior assessment of whether that

information was related to the Department’s law enforcement functions or the FBI’s

conduct of foreign counterintelligence investigations, and, in the case of Rule 6(e)

information, without a prior determination by an attorney for the government that

OIG assistance was necessary to assist in performing the attorney’s duty to enforce

federal criminal law. Because section 6(a)(1) would thus provide OIG with access

to protected information in more circumstances and on broader terms than are

provided for in Title III, Rule 6(e), and section 626 themselves, we must consider

whether section 6(a)(1) overrides the limits imposed by those statutes.

III.

In this Part, we address whether section 6(a)(1) overrides the disclosure

limitations in Title III, Rule 6(e), and section 626. We first discuss the general

interpretive principles that will guide our analysis, concluding that only a clear

statement of congressional intent to override conflicting statutes would be sufficient

to abrogate the detailed prohibitions on disclosing sensitive information contained

in Title III, Rule 6(e), and section 626. We then analyze the text, structure, and

history of the IG Act to determine whether it contains such a clear statement.

Finding that it does not, we conclude that the Department remains bound by

Title III, Rule 6(e), and section 626 when it responds to OIG requests under

section 6(a)(1), and thus that it may not disclose information covered by those

statutes outside the circumstances permitted by the statutes themselves.

A.

Both the Supreme Court and this Office have repeatedly confronted apparent

conflicts between statutes that address the same subject matter. Two lines of

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authority are particularly relevant here. In the first, the Court and this Office have

considered whether statutory provisions protecting highly sensitive information can

be overridden by competing statutory rights of access. In the second, which is

sometimes intertwined with the first, the Court and this Office have considered the

circumstances in which a general statute can be construed to override a more

specific statutory provision. In addressing these subjects, the Court and this Office

have identified two salient interpretive principles that will guide our analysis.

First, in a range of contexts—including contexts involving information protected

by Rule 6(e) and Title III—the Supreme Court and this Office have declined to infer

that Congress intended to override statutory limits on the disclosure of highly

sensitive information about which Congress has expressed a special concern for

privacy, absent a clear statement of congressional intent to that effect. In Illinois v.

Abbott & Associates, Inc., 460 U.S. 557 (1983), for example, the Court held that an

antitrust statute authorizing state attorneys general to obtain, “to the extent permitted

by law, any investigative files or other materials” relevant to an antitrust suit, 15

U.S.C. § 15f(a) (1976),

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