Relationship Between Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and Statutory Requirement for Confidentiality of Census Information

Relationship Between Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 and Statutory

Requirement for Confidentiality of Census Information

Section 642(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which

concerns the authority of federal, state, and local government officials and entities to disclose to the

Immigration and Naturalization Service information regarding an individual's citizenship or immi-

gration status, does not repeal 13 U.S.C. § 9(a), a statutory confidentiality requirement that bars the

disclosure of covered census information by census officials.

May 18, 1999

MEMORANDUM OPINION FOR THE GENERAL COUNSEL

DEPARTMENT OF COMMERCE

You have inquired about the relationship between two federal statutes. The first

provision is 13 U.S.C. § 9(a) (1994 & Supp. IV 1998), which sets forth the

longstanding requirement that census officials must, with certain express excep-

tions, keep covered census information confidential. The second provision is

section 642(a) of the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-707,

which now appears as 8 U.S.C. § 1373(a) (Supp. IV 1998), and which concerns

the authority of federal, state, and local government officials and entities to

disclose to the Immigration and Naturalization Service (“INS”) information

regarding an individual’s citizenship or immigration status. You have asked

whether 13 U.S.C. § 9(a) has been partially repealed by 8 U.S.C. § 1373(a).1 We

conclude that it has not.

I.

It is useful at the outset to describe the two federal statutes that are at issue. We

begin by describing the longstanding confidentiality provision that has been

codified as 13 U.S.C. § 9(a). We then describe the recently enacted provision that

addresses the disclosure of certain information to the INS that now appears as

8 U.S.C. § 1373(a).

Section 9(a) of title 13 represents the most recent codification of a statutory

confidentiality requirement that dates back more than a century and that bars the

disclosure of covered census information by census officials. See Baldrige v.

1

See Letter from Andrew J. Pincus, General Counsel, United States Department of Commerce, to

Randolph D. Moss, Acting Assistant Attorney General, Office of Legal Counsel, United States

Department of Justice, Re: Effect of the Illegal Immigration Reform and Immigrant Responsibility Act

on the Confidentiality of Census Information (May 14, 1999) (“Pincus Letter”).

1

Supplemental Opinions of the Office of Legal Counsel

Shapiro, 455 U.S. 345, 356–59 (1982) (reviewing the history of the requirement);

Census Data Unavailable to Women’s Bureau of Department of Labor and

Individuals, 36 Op. Att’y Gen. 362, 363–66 (1930) (same) (“Census Data”). The

core of this requirement has remained essentially unchanged since its initial

enactment and generally prohibits census officials from disclosing covered

information. The provision has been understood, in the absence of clear excep-

tions, to impose a broad requirement of confidentiality. See Baldrige, 455 U.S. at

359 (holding that lists of addresses collected and utilized by the Bureau of the

Census are exempt from disclosure by civil discovery or under the Freedom of

Information Act); United States v. Bethlehem Steel Corp., 21 F.R.D. 568, 572

(S.D.N.Y. 1958) (barring disclosure to the Department of Justice); Confidential

Treatment of Census Records, 40 Op. Att’y. Gen. 326 (1944) (“Census Records”)

(subjecting Archivist to statutory confidentiality requirement); Census Data, 36

Op. Att’y Gen. 362 (barring disclosure of census information to the Women’s

Bureau of the Department of Labor and Individuals).

At present, the provision enumerates certain express exceptions to the confi-

dentiality requirement, the most recent of which were added by two amendments

that Congress enacted in 1997. One of these amendments added a cross-reference

to a contemporaneously enacted provision that permits certain otherwise prohibit-

ed disclosures to be made to the Census Monitoring Board. See Department of

Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations

Act of 1998, Pub. L. No. 105-119, § 210(k), 111 Stat. 2471, 2487 (1997) (amend-

ing the face of 13 U.S.C. § 9(a)); id. § 210(e)(3), 111 Stat. at 2485 (permitting

disclosure to Census Monitoring Board). The other added a cross-reference to a

contemporaneously enacted provision that permits certain otherwise prohibited

disclosures to be made to the Department of Agriculture for the purpose of

facilitating the agriculture census. See Census Agriculture Act of 1997, Pub. L.

No. 105-113, § 4(a)(1), 111 Stat. 2274, 2276 (amending the face of 13 U.S.C.

§ 9(a)); id. § 2(f), 111 Stat. at 2275 (permitting disclosure to the Agriculture

Department).2

The statutory prohibition against the disclosure of census information now

codified as 13 U.S.C. § 9(a) not only protects the personal privacy of persons who

respond to the census, but also, in doing so, facilitates the administration of the

census, which the Constitution commands the federal government to perform

every ten years. See U.S. Const. art. I, § 2, cl. 3. As the Supreme Court observed in

Baldrige, “[a]lthough Congress has broad power to require individuals to submit

responses, an accurate census depends in large part on public cooperation. To

stimulate that cooperation Congress has provided assurances that information

2

Congress did not reenact the substantive confidentiality requirement itself, however, in amending

the provision to include these express exceptions.

2

Statutory Requirement for Confidentiality of Census Information

furnished to the Secretary [of Commerce] by individuals is to be treated as

confidential.” 455 U.S. at 354. Not surprisingly, therefore, federal law provides

that census officials who violate the terms of the statutory confidentiality require-

ment may be subject to criminal prosecution for the commission of a felony, and,

upon conviction, may face a maximum prison term of five years. See 13 U.S.C.

§ 214 (1994).

The text of section 9(a) provides:

(a) Neither the Secretary, nor any other officer or employee of the

Department of Commerce or bureau or agency thereof, or local gov-

ernment census liaison, may, except as provided in section 8 or 16 or

chapter 10 of this title or section 2(f) of the Census of Agriculture

Act of 1997 or section 210 of the Departments of Commerce, Jus-

tice, and State, the Judiciary, and Related Agencies Appropriations

Act, 1998—

(1) use the information furnished under the provisions of this title

for any purpose other than the statistical purposes for which it is

supplied; or

(2) make any publication whereby the data furnished by any par-

ticular establishment or individual under this title can be identi-

fied; or

(3) permit anyone other than the sworn officers and employees of

the Department or bureau or agency thereof to examine the indi-

vidual reports.

No department, bureau, agency, officer, or employee of the Govern-

ment, except the Secretary in carrying out the purposes of this title,

shall require, for any reason, copies of census reports which have

been retained by any such establishment or individual. Copies of

census reports which have been so retained shall be immune from

legal process, and shall not, without the consent of the individual or

establishment concerned, be admitted as evidence or used for any

purpose in any action, suit, or other judicial or administrative pro-

ceeding.3

3

Subsection (b) sets forth an additional, express exception to the limited ones that are contained in

the body of subsection (a). This provision is not at issue in this matter. The subsection provides:

(b) The provisions of subsection (a) of this section relating to the confidential treat-

ment of data for particular individuals and establishments, shall not apply to the cen-

3

Supplemental Opinions of the Office of Legal Counsel

In contrast to 13 U.S.C. § 9(a), section 1373(a) of title 8, entitled “Communica-

tion between Government agencies and the Immigration and Naturalization

Service,” is a recent enactment, and there is little in the way of legislative history

that illuminates its scope. Congress adopted the provision in the course of passing

IIRIRA in 1996, well after 13 U.S.C. § 9(a) had been enacted but just prior to the

enactment of the recent amendments to 13 U.S.C. § 9(a) described above. The

limitation was originally set forth as section 642(a) of IIRIRA and is codified as

section 1373(a) of title 8.

The text of section 1373(a) provides:

(a) In general

Notwithstanding any other provisions of Federal, State, or local law,

a Federal, State, or local government entity or official may not pro-

hibit, or in any way restrict, any government entity or official from

sending to, or receiving from, the Immigration and Naturalization

Service information regarding the citizenship or immigration status,

lawful or unlawful, of any individual.

Subsection (b) places an additional limitation on attempts to restrict a federal,

state, or local government “entity” from making certain uses of information

regarding the immigration status, lawful or unlawful, of any individual. Subsection

(b) provides:

(b) Additional authority of Government entities

Notwithstanding any other provision of Federal, State, or local law,

no person or agency may prohibit, or in any way restrict, a Federal,

State, or local government entity from doing any of the following

with respect to information regarding the immigration status, lawful

or unlawful, of any individual:

(1) Sending such information to, or requesting or receiving such

information from, the Immigration and Naturalization Service.

(2) Maintaining such information.

suses of governments provided for by subchapter III of chapter 5 of this title, nor to

interim current data provided for by subchapter IV of chapter 5 of this title as to the

subjects covered by censuses of governments, with respect to any information ob-

tained therefor that is compiled from, or customarily provided in, public records.

4

Statutory Requirement for Confidentiality of Census Information

(3) Exchanging such information with any other Federal, State, or

local government entity.4

II.

The question that we must resolve concerns the relationship between these two

federal statutes, one of which sets forth a longstanding bar to the disclosure of

sensitive information by census officials that may be enforced with criminal

penalties, and the other of which sets forth a limitation intended to facilitate the

disclosure of certain information to the INS.

We begin with the text of the statute that might be construed to have effected a

repeal of prior law. We are mindful in doing so that “repeals by implication are not

favored,” United States v. United Continental Tuna Corp., 425 U.S. 164, 168

(1976); Morton v. Mancari, 417 U.S. 535, 551 (1974) (“When two statutes are

capable of co-existence, it is the duty of the courts . . . to regard each as effec-

tive”), and that it is “[a] long-standing maxim of statutory construction that

statutes are enacted in accord with the legislative policy embodied in prior

statutes, and that therefore statutes dealing with the same subject should be

construed together.” Memorandum for Glen E. Pommerening, Assistant Attorney

General for Administration, from Antonin Scalia, Assistant Attorney General,

Office of Legal Counsel, Re: Establishing a Maximum Entry Age Limit for Law

Enforcement Officer Positions in the Department of Justice at 3 (Apr. 3, 1975).

Here, by virtue of its more recent enactment, and notwithstanding the 1997

amendments to 13 U.S.C. § 9(a), the potential repealer is 8 U.S.C. § 1373(a), the

text of which provides that federal, state, or local governmental “entit[ies]” or

“official[s]” may not “prohibit, or in any way restrict,” certain types of disclosures

to federal, state, or local government entities or officials. In our view, the text of

section 1373(a) does not manifest the kind of clear congressional intention that is

ordinarily required to effect the repeal of a federal statute such as 13 U.S.C. § 9(a).

Indeed, if anything, the statutory text suggests that Congress did not intend to

repeal existing, federal statutory prohibitions or restrictions on disclosure.

There would be nothing impermissible about a federal statute that took the form

of a repeal of prior federal statutory disclosure prohibitions or restrictions. The

4

Subsection (c) of section 1373 imposes a duty upon the INS to respond to certain requests for

information about the citizenship or immigration status of individuals that it receives from governmen-

tal agencies. That portion of the provision is not at issue here. It provides:

(c) Obligation to respond to inquiries

The Immigration and Naturalization Service shall respond to an inquiry by a Federal,

State, or local government agency, seeking to verify or ascertain the citizenship or

immigration status of any individual within the jurisdiction of the agency for any pur-

pose authorized by law, by providing the requested verification or status information.

5

Supplemental Opinions of the Office of Legal Counsel

question, here, however, is whether 8 U.S.C. § 1373(a) is such a federal statute,

and textual evidence suggests that it is not. There is a straightforward way in

which 8 U.S.C. § 1373(a) might have been drafted to repeal federal statutes

prohibiting or restricting disclosure and to establish an interpretive background for

future federal statutes that would favor disclosure: “Notwithstanding any provision

of law, a federal, state, or local official or entity may provide information, without

restriction . . . .” In contrast, the terms of section 1373(a) do not clearly invest

governmental officials or entities with the affirmative authority to disclose

information in circumstances where they otherwise would be prohibited from

doing so by a federal statute. Rather, the provision is phrased as a limitation on the

authority of government entities or officials to impose prohibitions or restrictions

on disclosures by government entities or officials. The phrasing therefore requires

that we determine, in order to discern the scope of the provision, the government

“entities” to which Congress has directed this bar. A consideration of that

question, in turn, reveals the problem with construing section 1373(a) to supersede

federal statutory prohibitions or restrictions on the disclosure of information.

One could read the text of section 1373(a) to supersede federal statutory prohi-

bitions or restrictions on disclosure by concluding that the phrase “a Federal, State,

or local government entity or official may not prohibit, or in any way restrict”

includes within its terms the United States Congress acting pursuant to its

lawmaking authority in the same way that it would include within its terms states

or local governments acting pursuant to their lawmaking authority. Such a

construction would be at odds, however, with the fact that Congress may not, by

statute, direct the Congress not to enact certain laws in the future. See, e.g.,

Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135 (1810) (Marshall, C.J.) (“The

principle asserted is that one legislature . . . cannot abridge the powers of a

succeeding legislature. The correctness of this principle, so far as respects general

legislation, can never be controverted.”). That is not to say, of course, that

Congress may not enact a statutory prohibition that Congress could lift only by

subsequently repealing it. It is rather to say that Congress has no power to

command itself by statute not to enact a law in the future, and thus that it would be

odd to construe the command contained in section 1373(a) to have been intended

to apply to Congress’s own power to enact prohibitions or restrictions on disclo-

sure. It would appear from the text, therefore, that the provision is intended to

constrain the lawmaking discretion of other government officials and entities but

not of the very governmental entity that is constitutionally vested with the

lawmaking power of the federal government.

It is not possible, moreover, to construe section 1373(a) as if it were intended to

apply only to federal statutory disclosure prohibitions or restrictions that had been

enacted prior to the passage of section 1373(a). Such a construction would avoid

the problem that we have just mentioned, but only by giving rise to a new one. It

would be quite strange to conclude that Congress intended for section 1373(a) to

6

Statutory Requirement for Confidentiality of Census Information

apply only retroactively as a general matter, and the statutory text simply does not

permit the provision to be construed to apply both prospectively and retroactively

to state and local laws, but only retroactively to federal statutes.

We also do not believe that it would make sense to construe section 1373(a) as

if it were intended to preclude federal officials or entities from implementing,

through, for example, criminal prosecutions or disciplinary actions, federal

statutory prohibitions or restrictions against disclosure. Such an interpretation

would require one to make the dubious assumption that Congress intended to

preclude federal officials from implementing statutory prohibitions or restrictions

against disclosure that it had not seen fit to repeal.

These interpretive oddities do not arise if the text is construed to apply only to

disclosure prohibitions or restrictions other than those imposed by federal statute.

For example, section 1373(a) may be comfortably construed to displace conflict-

ing state or local non-disclosure laws, even if they have been enacted by statute or

ordinance5; state and local governments must legislate in this area in accord with

federal law, City of New York v. United States, 971 F. Supp. 789 (S.D.N.Y. 1997)

(rejecting a Tenth Amendment challenge to the application of section 1373(a) to

preempt a city executive order prohibiting city officials from disclosing certain

information to the INS), and the rule that Congress may not bind its future

lawmaking power is obviously not implicated by a federal statute that has such

preemptive effect. Section 1373(a) also may be comfortably construed to limit the

discretionary authority of federal officers or employees, or federal entities like

administrative agencies, to adopt disclosure prohibitions or restrictions; federal

officials or entities generally may exercise discretionary authority of this sort only

to the extent that Congress allows by statute. The ease with which the provision

may be read to cover these applications stands in marked contrast to the struggle

that would be required to read the provision to cover federal statutory prohibitions

or restrictions on disclosure.

To be sure, the presence of the prefatory phrase “notwithstanding any other

provisions of Federal, State, or local law” does reflect a congressional intention to

displace inconsistent law. It does not, however, support a broad construction of the

substantive provision that would give rise to such inconsistencies. See Moyle v.

Director, Office of Worker’s Comp. Programs, 147 F.3d 1116, 1119 (9th Cir.

1998) (“The fact that [a statute] provides that it is effective ‘[no]twithstanding any

other provision of law’ also does not evidence an express repeal of [the other]

statute.”); Kee Leasing Co. v. McGahan, 944 F.2d 577, 582 (9th Cir. 1991)

(“notwithstanding” phrase by itself did not in and of itself indicate a congressional

intent to repeal other statute). The “notwithstanding” phrase merely prefaces the

5

See infra note 7.

7

Supplemental Opinions of the Office of Legal Counsel

substantive limitation that section 1373(a) sets forth, and, as we have explained,

the text of section 1373(a) suggests that this substantive limitation does not apply

if Congress is the source of the prohibition or restriction in question. The limita-

tion appears instead to be intended to apply only when the source of the prohibi-

tion or restriction on disclosure is an entity or official other than Congress. The

“notwithstanding” phrase is thus best read to mean only that, notwithstanding a

federal statute that would authorize federal officials or entities to exercise their

general administrative discretion in a manner that would prohibit or restrict

disclosures of the type identified in section 1373(a), such federal officials or

entities may not exercise such discretion. The phrase should not be understood to

refer, therefore, to federal statutes that themselves prohibit or restrict such

disclosures.6

Nor do the terms of the title of subsection (b) of section 1373 of title 8, which

employs similar language to subsection (a), reflect a congressional intention to

cover federal statutory prohibitions or restrictions on disclosure. The subsection is

entitled “Additional Authority of Governmental entities.” This language should

not be read to suggest that Congress intended for the text of both subsections to

authorize governmental entities or officials to make disclosures in contravention of

otherwise applicable federal statutes. Section 1373 confers “additional authority”

on state and local governmental entities to the extent that it preempts state or local

disclosure prohibitions that would otherwise apply to them. Thus, even if the title

to subsection (b) should be given interpretive weight, its terms are consistent with

the construction of the text of section 1373(a) that we have set forth above.7

6

Questions may arise in some circumstances as to whether a federal statute constitutes a prohibi-

tion or restriction on disclosure or merely confers general administrative authority upon subordinate

officials or entities that would enable them to determine in their discretion whether to adopt such

prohibitions or restrictions. We have no need to address such questions here, however, because there is

no question that 13 U.S.C. § 9(a) constitutes a federal statutory bar against disclosure.

7

In concluding that the text of section 1373(a) should not be understood to repeal federal statutory

prohibitions or restrictions on disclosure, we express no view as to whether other limitations on the

scope of the provision may also be warranted by either its text or its purposes. We note, however, that,

although, as we explain below, the legislative history comports with our conclusion that Congress did

not intend section 1373(a) to supersede legislatively enacted federal prohibitions or restrictions on

disclosure, the legislative history also suggests that Congress intended to supersede state and local

prohibitions or restrictions on disclosure without regard to whether such prohibitions or restrictions had

been enacted legislatively or adopted pursuant to the exercise of administrative discretion. See H.R.

Rep. No. 104-469, pt. 1, at 277 (1996) (explaining that the House version of the measure “is designed

to prevent any State or local law, ordinance, executive order, policy, constitutional provision, or

decision of any Federal or State court that prohibits or in any way restricts any communication between

State and local officials and the INS”). Thus, the legislative history casts doubt upon a construction of

section 1373(a) that would leave in place all legislatively enacted prohibitions or restrictions on

disclosure, including state and local ones.

8

Statutory Requirement for Confidentiality of Census Information

III.

The remaining evidence of congressional intent supports the inference that the

text invites: that 8 U.S.C. § 1373(a) does not repeal federal statutory prohibitions

or restrictions on disclosure to the INS of information concerning an individual’s

citizenship or immigration status.

As an initial matter, Congress amended the version of 13 U.S.C. § 9(a) that pre-

dated the enactment of section 1373(a) after section 1373(a) had been enacted.

The amendments, as we have already explained, added two express exceptions to

the confidentiality requirement for census information that 13 U.S.C. § 9(a) had

previously set forth. This recent history of express amendment is consistent with

Congress’s past practice of expressly identifying the relationship between the

confidentiality requirement that 13 U.S.C. § 9(a) sets forth and other federal

statutes. See, e.g., 42 U.S.C. § 11608 (1994) (setting forth the manner in which

otherwise confidential covered census information may be disclosed to implement

a certain treaty); 42 U.S.C. § 6274 (1994) (specifically abrogating protections

conferred by section 9 of title 13 to implement a different statutory policy); 50

U.S.C. app. § 2411 (1994) (providing express exemption for covered census

information from general disclosure requirement); see Pincus Letter at 1 (noting

that “the few statutory exceptions to this requirement are explicit and limited”).

Because “this particular problem of statutory construction arises in a context in

which Congress has historically legislated with care and specificity,” Exchange

Authority for Kaloko Honokohau National Historical Park, 6 Op. O.L.C. 251, 255

(1982), the absence of a reference in either statute to the other suggests that the

text of 13 U.S.C. § 9(a) should be construed to mean just what it says, and that

8 U.S.C. § 1373(a) should be understood to have left in place the confidentiality

requirement that 13 U.S.C. § 9(a) establishes.8

The fact that neither statutory provision refers to the other is also significant

because it has long been assumed that, if Congress were to cut back on the

confidentiality provision set forth in 13 U.S.C. § 9(a), it would do so clearly. In

rejecting a request by the United States Department of Justice that census officials

be ordered to disclose census information relevant to an investigation, Judge

8

Shortly after section 642(a) of IIRIRA had been enacted, the Department of Justice submitted a

legislative proposal to Congress that contained various technical amendments to IIRIRA and that

would have expressly provided that section 642(a) did not repeal 13 U.S.C. § 9(a). See Letter for Newt

Gingrich, Speaker, United States House of Representatives, from Andrew Fois, Assistant Attorney

General, Office of Legislative Affairs (July 3, 1997), with attached legislative proposal entitled

“Technical Immigration and Naturalization Amendments of 1997.” The fact that Congress did not

enact this legislative proposal into law does not, of course, suffice to indicate that Congress intended

for section 642(a) to repeal a portion of the confidentiality requirement set forth in 13 U.S.C. § 9(a).

See Helvering v. Hallock, 309 U.S. 106, 121 (1940) (Frankfurter, J.) (“[W]e walk on quicksand when

we try to find in the absence of corrective legislation a controlling legal principle.”).

9

Supplemental Opinions of the Office of Legal Counsel

Weinfeld explained that “the purpose to protect the privacy of the information

furnished to the Government is so clear and the public policy underlying the

purpose so compelling that, absent a clear Congressional grant, there is no basis

upon which to direct the Department of Commerce to make available to the

Department of Justice or to any person the reports here sought.” Bethlehem Steel,

21 F.R.D. at 572. The Attorney General employed a similar requirement of clarity

in determining that a statute that granted custody of federal records to the Archi-

vist did not displace the confidentiality requirement set forth in a predecessor to 13

U.S.C. § 9(a).

The policy of insuring by legislative and executive action that no un-

authorized use is made of information obtained in the census, and the

compelling reasons therefor, are set forth in the Attorney General’s

opinion of September 29, 1930, to the Secretary of Commerce. It

would require very clear language in a general statute relating to the

custody of records to justify attributing to the Congress an intention

to depart from its policy, and there is no such clear indication in the

Archives Act.

Census Records, 40 Op. Att’y Gen. at 327–28.9

The presumption employed in these cases arises from the important govern-

mental interests that first prompted the enactment of a statutory requirement of

confidentiality. Indeed, the Supreme Court emphasized the long history of this

statutory requirement, and the important role that it plays in encouraging the

public to cooperate with census officials, in the course of holding that Congress, in

enacting the Freedom of Information Act or conferring authority on federal district

courts to order the discovery of non-privileged information, could not have

intended to override the requirement in a manner that would permit the disclosure

of the lists of addresses that had been collected and utilized by the Bureau of the

Census. See Baldrige, 455 U.S. at 356–62. The Attorney General also emphasized

the important function that the confidentiality requirement performs in describing

a nearly identical predecessor to the current, non-disclosure requirement: “There

can be no doubt that the Congress intended in the act of June 18, 1929 . . . to give

effective assurance to all persons required under penalty of law to furnish

9

The Supreme Court’s decision in St. Regis Paper Co. v. United States, 368 U.S. 208 (1962), is not

to the contrary. In that case, the Court held that the Federal Trade Commission was entitled to order a

private corporation to submit certain census-related information that it had maintained, but the Court

did so on the basis of a determination that 13 U.S.C. § 9(a) imposes a confidentiality requirement that

applies to government officials and not private persons or entities. See St. Regis Paper Co., 368 U.S. at

217–18. The question before us, by contrast, concerns whether the recent enactment of 8 U.S.C.

§ 1373(a) makes permissible the disclosure of census information by government officials who would

otherwise be subject to the confidentiality requirement that 13 U.S.C. § 9(a) imposes.

10

Statutory Requirement for Confidentiality of Census Information

information to the Bureau of the Census for statistical purposes, that the identity of

the informant and the information furnished would be held in complete confidence

by the Bureau.” Seventeenth Decennial Census, 41 Op. Att’y Gen. 120, 124

(1953); see also Bethlehem Steel Corp., 21 F.R.D. at 570–71 (explaining that a

“purpose [of the requirement] was to encourage citizens to submit freely all data

desired in recognition of its importance in the enactment of laws and other

purposes in the national interests”).

The confidentiality provision to which the Attorney General referred was itself

pre-dated by section 25 of the Act of July 2, 1909, ch. 2, 36 Stat. 1, 9, which set

forth the non-disclosure requirement in similar terms to the current requirement.

The congressional committee that reported the bill that became the Act of July 2,

1909, explained that the provision was intended to secure “a more effective

guaranty than heretofore of the confidential character of the returns as needed in

many cases and desirable in all to enlist that public confidence without which

census inquiries must fail.” H.R. Rep. No. 60-960, at 23 (1908).

In addition, soon after the enactment of the 1929 statute, Act of June 18, 1929,

ch. 46, 28 Stat. 21, 25, and consistent with its broad purpose, President Herbert

Hoover assured the public by proclamation of November 22, 1929, that the

statutory provisions barring the disclosure of census information made clear that

[t]he sole purpose of the Census is to secure general statistical in-

formation regarding the population and resources of the country, and

replies are required from individuals only to permit the compilation

of such general statistics. No person can be harmed in any way by

furnishing the information required. The Census has nothing to do

with taxation, with military or jury service, with the compulsion of

school attendance, with the regulation of immigration, or with the

enforcement of any national, state, or local law or ordinance. There

need be no fear that any disclosure will be made regarding any indi-

vidual person or his affairs. For the due protection of the rights and

interests of the persons furnishing information every employee of the

Census Bureau is prohibited, under heavy penalty, from disclosing

any information which may thus come to his knowledge.

Proclamation No. 1898 (1929).

In light of the federal government’s longstanding commitment to confidentiali-

ty in this area, there is every reason to expect that Congress would have spoken

with particular clarity if it had intended to cut back on the scope of 13 U.S.C.

§ 9(a) in enacting 8 U.S.C. § 1373(a). The plain terms of 13 U.S.C. § 9(a)

certainly make clear the nature of this federal governmental commitment to

confidentiality, as they render covered census information immune from legal

process. A broad construction of 8 U.S.C. § 1373(a), however, would permit

11

Supplemental Opinions of the Office of Legal Counsel

census officials to disclose to INS employees otherwise protected census infor-

mation even in the absence of a court order requiring them to do so. It is unlikely

that, in light of past practice, Congress would have adopted such a significant

limitation on the scope of the census confidentiality requirement without either

referring to it expressly in 8 U.S.C. § 1373(a) or an amendment to 13 U.S.C.

§ 9(a), or, at the least, using more direct language than it has employed here.

Finally, the discussion in the legislative reports that directly concerns 8 U.S.C.

§ 1373(a) accords with the conclusion that Congress did not intend to effect the

repeal of federal statutory prohibitions or restrictions such as 13 U.S.C. § 9(a). The

conference report to IIRIRA, for example, states that section 642(a), which now

appears as 8 U.S.C. § 1373(a), “provides that notwithstanding any other provision

of Federal, State, or local law, no State or local government entity shall prohibit or

in any way restrict any government entity or official from sending to or receiving

from the INS information regarding the immigration status of any individual in the

United States.” H.R. Rep. No. 104-828, at 249 (1996) (Conf. Rep.). The report’s

failure to refer to prohibitions or restrictions by federal government entities may

have been the result of an oversight, but the omission nonetheless makes it

difficult to discern from the conference report a congressional intention to repeal

federal statutory prohibitions or restrictions against disclosure, such as the one

contained in 13 U.S.C. § 9(a).

In addition, the Senate report appears to be focused on state and local disclo-

sure prohibitions and restrictions. Although the report provides that the provision

that would later become section 642(a) “[p]rohibits any restriction on the ex-

change of information between the Immigration and Naturalization Service and

any Federal, State, or local agency regarding a person’s immigration status,”

S. Rep. No. 104-249, at 19 (1996), the next two sentences suggest that Congress

was concerned with state and local restrictions, not federal statutory ones:

“Effective immigration law enforcement requires a cooperative effort between all

levels of government. The acquisition, maintenance, and exchange of immigra-

tion-related information by State and local agencies is consistent with, and of

potentially considerable assistance to, the Federal regulation of immigration and

the achieving of the purposes and objectives of the Immigration and Nationality

Act.” Id. at 19–20.

The House report also fails to provide support for construing 8 U.S.C.

§ 1373(a) to effect the repeal of federal statutory prohibitions or restrictions on

disclosure. Indeed, at the time of the report, the bill applied only to state and local

prohibitions or restrictions on disclosure, not federal ones. H.R. Rep. No. 104-469,

pt. 1, at 104 (1996). To the extent that the report may be understood to shed any

light on the kind of prohibitions or restrictions on disclosure that Congress had in

mind in enacting section 642(a), moreover, it suggests that a narrow construction

is appropriate. The report states, for example, that “[t]he Committee believes that

immigration law enforcement is as high a priority as other aspects of Federal law

12

Statutory Requirement for Confidentiality of Census Information

enforcement, and that illegal aliens do not have the right to remain in the U.S.

undetected and unapprehended.” H.R. Rep. No. 104-469, pt. 1, at 277. The report

appears to suggest, therefore, that Congress intended to ensure that the INS would

not be placed at a comparative disadvantage in performing its law enforcement

responsibilities. If section 1373(a) were construed to repeal the applicable portion

of 13 U.S.C. § 9(a), however, the INS would be capable of obtaining census

information relevant to its law enforcement mission even though other federal

agencies would not. The report provides no support for a construction of section

1373(a) that would have the consequence of thus privileging the INS.10

V.

For the reasons set forth above, we conclude that 8 U.S.C. § 1373(a) does not

repeal 13 U.S.C. § 9(a).

RANDOLPH D. MOSS

Acting Assistant Attorney General

Office of Legal Counsel

10

This evidence from the legislative history may suggest that 8 U.S.C. § 1373(a) is not intended to

apply to any provision of law, whether federal, state, or local, that imposes a confidentiality require-

ment that applies to bar disclosures not simply to the INS, but to government agencies generally. We

do not address here, however, whether such a distinction between types of confidentiality requirements

would be compatible with the text of 8 U.S.C. § 1373(a). Cf. Emp’t Div. v. Smith, 494 U.S. 872, 878

(1990) (interpreting the word “prohibiting” in the Free Exercise Clause to incorporate an implicit

distinction between direct and indirect prohibitions). We do note that while it is clear that Congress

intended for 8 U.S.C. § 1373(a) to displace state or local provisions that specifically targeted

disclosures to the INS for special prohibition, see City of New York v. United States, 971 F. Supp. 789,

792 (S.D.N.Y. 1997), the federal statutory bar to disclosure that is set forth in 13 U.S.C. § 9(a) is not

similarly targeted. It applies without regard to whether the information to be protected concerns an

individual’s citizenship or immigration status or whether the disclosure is to be made to the INS or

some other law enforcement agency.

13