Opinion

Access of Department of Justice Inspector General to Certain Information Protected from Disclosure by Statute

Court: Department of Justice Office of Legal Counsel
Filed: Jul 20, 2015
Status: Published
Cited by: 0 cases
Authority: More cited than 4.9%

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The opinion

Access of Department of Justice Inspector General to

Certain Information Protected from Disclosure by Statute

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 Report-

ing Act to the Department’s Office of the 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

* Editor’s Note: After 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 has 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 Inspec-

tor 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)). This

Office analyzed inspector general access under statutory provisions similar to those in

the amended section 6(a) in Effect of Appropriations Rider on Access of DOJ Inspector

General to Certain Protected Information, 40 Op. O.L.C. 39 (2016).

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

protected information. 1 In particular, you have asked whether the Depart-

ment may grant OIG access, in connection with OIG audits, investiga-

tions, 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, 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 rec-

ords, 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 protect-

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

investigations, or reviews. Certain other Department components disa-

gree, arguing that the statutory exceptions in Title III, Rule 6(e), and

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.

39 Op. O.L.C. 12 (2015)

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”); Memoran-

dum 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 Weins-

heimer, 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 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 Assis-

tant Attorney General, Office of Legal Counsel, from Lanny A. Breuer, Assistant Attor-

ney General, Criminal Division (Apr. 12, 2011); Memorandum for Jonathan G. Cedar-

baum, 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,

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

For the reasons set forth below, we conclude that the statutory excep-

tions in Title III, Rule 6(e), and section 626 of FCRA permit the Depart-

ment 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 enforce-

ment, 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 enforce-

ment 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 sec-

tion 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, affirmatively indicates that Congress expected an inspector

general’s right of access to be subject to statutory limits on disclosure.

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

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

considered their views in preparing this opinion.

39 Op. O.L.C. 12 (2015)

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 protec-

tions 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 back-

ground 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 provi-

sion in section 6(a)(1) of the IG Act does not override the specific protec-

tions of sensitive information 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

Congress enacted the IG Act in 1978 to “create independent and objec-

tive 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

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, de-

partments, commissions, boards, and corporations in which Congress created an Office of

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

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” 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 “pre-

vent 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, conducts investigations of suspected criminal wrong-

doing by Department employees; investigations of administrative mis-

conduct 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 Jus-

tice, 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 inspec-

tors 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,” In-

spector General Authority to Conduct Regulatory Investigations, 13 Op.

O.L.C. 54, 62 (1989) (“Authority to Conduct Regulatory Investiga-

tions”), and it prohibits the heads of federal agencies from transferring

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.”

39 Op. O.L.C. 12 (2015)

to inspectors general any of the agency’s “program operating responsi-

bilities,” 5 U.S.C. app. § 9(a). 5

The IG Act also grants inspectors general several enumerated authori-

ties 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, re-

views, documents, papers, recommendations, or other material avail-

able to the applicable [agency] which relate to programs and opera-

tions with respect to which that Inspector General has responsi-

bilities 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 infor-

mation, in recognition of the sensitivity of much of the Department’s

work, see H.R. Rep. No. 100-1020, at 24 (1988) (Conf. Rep.). Specifical-

ly, section 8E(a)(1) of the Act provides that the Department’s Inspector

General “shall be under the authority, direction, and control of the Attor-

5 Some of OIG’s statutory responsibilities, such as conducting investigations of sus-

pected 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 Investi-

gations, 13 Op. O.L.C. at 66–67 & n.21.

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

ney General with respect to audits or investigations, or the issuance of

subpoenas, which require access to sensitive information concerning”

certain enumerated matters, such as “ongoing civil or criminal investiga-

tions 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 infor-

mation 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 con-

ducting its audits, investigations, and reviews, OIG has sometimes re-

quested 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 Na-

tional 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 pro-

hibited, by Title III, Rule 6(e), and section 626. 6 Specifically, as we

discuss in more detail below, Title III bars investigative and law enforce-

ment 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

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 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 Infor-

mation Act, 5 U.S.C. § 552(b)(3)).

39 Op. O.L.C. 12 (2015)

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,” Fed. R. Crim. P.

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 counterterror-

ism 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 with-

in 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. Mancari, 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,

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

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.

II.

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 interception, use, and

disclosure of wire, oral, and electronic communications, see 18 U.S.C.

§§ 2510–2522, thereby establishing a mechanism through which law en-

forcement 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 unnec-

essarily infringing upon the right of individual privacy”). Title III permits

the Attorney General and other Department leadership officials to author-

ize 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) (au-

thorizing 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, evi-

dence of “any Federal felony”). Id. §§ 2516(1), (3), 2518.

Once an investigative or law enforcement officer has lawfully inter-

cepted 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.

39 Op. O.L.C. 12 (2015)

O.L.C. 261, 270–71 n.12, 272 (2000) (“Title III Intelligence Communi-

ty”); 18 U.S.C. § 2520(a), (f ), (g) (authorizing civil damages and adminis-

trative discipline for willful disclosures); id. § 2511(1)(e), (4)(a) (author-

izing 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.

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

tents 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 . . . appro-

priate 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 inter-

cepted 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 Enforce-

ment 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 invaria-

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

bly “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 miscon-

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

Department’s criminal law enforcement programs for purposes of “super-

vision 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 “in-

vestigative officers” who may receive Title III information, but—con-

sistent 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

either the officer making or the officer receiving the disclosure. In par-

ticular, 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 pro-

grams, policies, or practices. As we explain, many—but not all—OIG

investigations and reviews are likely to qualify for disclosure under this

standard.

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

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

39 Op. O.L.C. 12 (2015)

2014 Memorandum at 10–12. We agree that disclosures between Depart-

ment 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 enforce-

ment 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 prosecution 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 typi-

cally possess Title III information, such as FBI agents, qualify as investi-

gative 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 par-

ticipate 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 prosecutions through their direction and super-

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

vision of those actions on an individual or programmatic basis. See infra

pp. 29–30.

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

disclosure of Title III material also be an investigative or law enforce-

ment 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 “of-

ficer[s] of the United States.” 18 U.S.C. § 2510(7). Further, as we ex-

plained in our 1990 opinion, the IG Act “entrusts [OIG] with investiga-

tive, auditing, and other responsibilities relevant to the detection and

prosecution of fraud and abuse within [Department] programs or opera-

tions.” 14 Op. O.L.C. at 109–10. When OIG agents, exercising those

responsibilities, “discover evidence that . . . Department personnel, con-

tractors, 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 De-

partment 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 “‘rea-

sonable grounds to believe there has been a violation of Federal criminal

law,’” inspectors general are required to “‘report [such violations] expe-

ditiously 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 enu-

merated in section 2516,” and as a result, OIG agents—“including spe-

cial agents, auditors and investigators”—are “investigative officers”

entitled to receive disclosures of Title III information under section

2517(1). Id. at 110. 7

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).

39 Op. O.L.C. 12 (2015)

The conclusion that both Department officials who maintain Title III

information and OIG agents who seek it are “investigative or law en-

forcement officer[s]” under section 2517(1), however, does not mean that

those officers may share Title III information with each other in all cir-

cumstances. 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. We reasoned that if “official duties” were

read to “permit 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 en-

forcement purposes.” Id.; see id. at 267–69 (discussing the statute’s pur-

pose). 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 enforce-

ment.” 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 infor-

mation 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

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

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 excep-

tion 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 dis-

closing 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 dis-

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

We disagree. Both sections 2517(1) and 2517(2) use the phrase “offi-

cial duties,” and as we explained in Title III Intelligence Community,

“under basic canons of statutory construction,” these “identical phrase[s]

. . . must be interpreted consistently” 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 for understanding the “official duties” of a receiv-

ing 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 re-

39 Op. O.L.C. 12 (2015)

views.” 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 sec-

tion 2517(1). Id. at 264, 271. Similarly, OIG’s duty (as the potential re-

ceiving officer) to audit, investigate, and review the Department’s activi-

ties 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.

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 in-

volve investigations of alleged criminal wrongdoing or administrative

(and potentially criminal) misconduct by Department employees, or re-

views of the Department’s criminal law enforcement programs for pur-

poses 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 enforce-

ment 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 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-

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

ground activities, such as investigating, making arrests for, and prosecut-

ing crimes. See id. § 2510(7). Higher-ranking Department officials per-

form duties related to law enforcement when they direct and supervise

those activities, such as by approving search warrant and wiretap applica-

tions, 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 “con-

duct[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 enu-

merated 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 assis-

tance” 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 en-

forcement 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., Memoran-

dum 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 deci-

sions are somewhat removed from on-the-ground law enforcement activi-

ties, 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 deci-

8 For example, if OIG investigated a Department employee for alleged criminal mis-

conduct 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 infor-

mation to OIG if doing so would help the prosecutor prepare or conduct the prosecution.

39 Op. O.L.C. 12 (2015)

sions, for instance, can affect the conduct of a large number of investiga-

tions 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

individual trial,” because both activities are “directly connected with the

prosecutor’s basic trial advocacy duties”). Such broad-based supervision

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

Cf. 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 Federal Rule of Criminal Procedure 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 Depart-

ment’s law enforcement activities, including its use of Title III authorities.

If that supervision did not constitute an “official dut[y]” within the mean-

ing of section 2517(1), then leadership officials would be unable to pro-

grammatically review the contents of wiretaps in order to ensure that

officers were exercising their Title III authorities responsibly and lawful-

ly, 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 su-

pervision 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 supervis-

ing 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).

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

A Department leadership official may therefore disclose Title III mate-

rials to OIG agents when doing so would be appropriate to the perfor-

mance 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 recommenda-

tions about such issues to Department leadership, see id. § 4(a)(5). More-

over, consistent with Congress’s purpose, “OIG’s reports of its investiga-

tions and reviews have historically provided the Attorney General and

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

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 opera-

tions; 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

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 Nation-

39 Op. O.L.C. 12 (2015)

We now turn to disclosures that would be appropriate to the proper per-

formance 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 Offic-

ers, 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 performance” of OIG’s investigations of al-

leged criminal wrongdoing by Department employees, contractors, or

grantees, including administrative misconduct investigations 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 pro-

grams and operations related to law enforcement, in order to help the

Attorney 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).

al 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).

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

We recognize that, in at least two respects, OIG reviews of Depart-

ment 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 Investiga-

tions, 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 exam-

ple, 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 pro-

gram 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 enforce-

ment 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

39 Op. O.L.C. 12 (2015)

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 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 independ-

ent 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 investi-

gation components). We are reluctant to conclude that the relative inde-

pendence 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 con-

cern, 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.

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

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 du-

ties” 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 De-

partment leadership officials and OIG agents for Title III purposes en-

compass 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, 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 suffi-

ciently related to the Department’s law enforcement programs and opera-

tions 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 com-

ponent’s record-keeping practices, would justify disclosure of Title III

information under section 2517(1) merely because that component en-

gaged 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 Con-

gress 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 “investiga-

39 Op. O.L.C. 12 (2015)

tory files compiled for enforcement purposes” in the Freedom of Infor-

mation 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 investi-

gative 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 relation-

ship with, the conduct of the Department’s law enforcement activities.

We now turn to OIG’s eligibility to obtain grand jury materials. Feder-

al 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

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

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,

Fed. R. Crim. P. 6(e)(3)(E), and an attorney for the government may

disclose information without court authorization pursuant to several

exceptions enumerated in paragraph (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 infor-

mation to OIG under the exception set forth in Rule 6(e)(3)(A)(i) (“excep-

tion (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 personnel . . . 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 disclo-

sures 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 un-

der subsection 6(e)(3)(D) (“exception (D)”), which authorizes an attorney for the

government to disclose grand jury material “involving foreign intelligence, counterin-

telligence . . . , 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 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 ex-

39 Op. O.L.C. 12 (2015)

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). A person

may make a disclosure under this provision without obtaining authoriza-

tion from the court that impaneled the grand jury or notifying the court of

the disclosure. Cf. Fed. R. Crim. P. 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 Memoran-

dum 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 attor-

neys 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.

ception (D) here. Rule 6(e)(3) also includes exceptions to Rule 6(e)’s secrecy require-

ments for (1) certain disclosures relating to banking matters and civil forfeiture au-

thorized by 18 U.S.C. § 3322, see Fed. R. Crim. P. 6(e)(3)(A)(iii); (2) disclosures to

another federal grand jury, see Fed. R. Crim. P. 6(e)(3)(C); and (3) disclosures author-

ized by a court under certain conditions, see Fed. R. Crim. P. 6(e)(3)(E). We likewise

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

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

The starting point for OIG’s argument is United States v. Sells Engi-

neering. 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 “vir-

tually every attorney in the Department of Justice,” were “within the class

of ‘attorneys for the government’ to whom (A)(i) allows disclosure with-

out 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 Attor-

ney General may direct almost “any attorney employed by the Depart-

ment”—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 con-

duct “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 attor-

ney’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 De-

partment 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

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 perfor-

mance 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.

39 Op. O.L.C. 12 (2015)

materials only “because both the grand jury’s functions and their own

prosecutorial duties require it.” Id.; 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 attor-

ney’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 “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. 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. 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 prose-

cutors 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

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

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 ob-

served 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 consid-

ered ‘prosecutors,’ such as Department ‘supervisors’ and members of the

‘prosecution team,’ but who nevertheless are indispensable to an effec-

tive criminal law enforcement effort.” Id. at 6 (citation 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 “analo-

gous” 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

39 Op. O.L.C. 12 (2015)

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 activi-

ties, 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 regu-

lation, “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 ex-

ception (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 Depart-

ment’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 im-

portant respects; indeed, for the reasons described in Part II.B.2 below, we

believe that OIG personnel may obtain grand jury information under

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 pru-

dential 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 em-

ployed.” OPR Memorandum at 9.

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

exception (A)(ii) in part because of their responsibility to assist Depart-

ment leadership in supervising the Department’s law enforcement func-

tions. See infra p. 54. 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 capa-

ble of conducting criminal proceedings on behalf of the government.

Because the IG Act prohibits OIG personnel from engaging in such activi-

ties, 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;

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 pro-

ceedings 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 subpara-

graphs (A) and (B) are not in plain terms limited to attorneys who are

authorized to represent the government in criminal proceedings. In isola-

tion, the phrase “authorized assistant” might be read to encompass per-

sons 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 un-

dertaken by OIG). Read in context, however, we think that the term “au-

39 Op. O.L.C. 12 (2015)

thorized 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 “author-

ized” in “authorized assistant” must be read in light of the meaning it has

in the other parts of the same provision. As noted, subparagraph (C)

refers to persons “whom Guam law authorizes to act in [a criminal]

matter,” and subparagraph (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 subparagraphs (A) and (B), to refer to official authoriza-

tion 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 Unit-

ed 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 subparagraph

(D) refers to “any other attorney authorized by law to conduct proceed-

ings under these rules as a prosecutor” (emphasis added). That formula-

tion 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 of-

fense.’ 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 deci-

sions 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

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

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 Gen-

eral’ 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 Attor-

ney General’” only if she had actually been “authorized to conduct grand

jury proceedings”); United States v. Fort, 472 F.3d 1106, 1111 (9th Cir.

2007) (“Rule 1(b)(1) defines restrictively the term ‘attorney for the gov-

ernment’ 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 assis-

tants 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 investigating 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 gov-

39 Op. O.L.C. 12 (2015)

ernment 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 mean-

ing 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 govern-

ment may request in writing that the defendant notify an attorney for the

government of any intended alibi defense,” Fed. R. Crim. P. 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,”

Fed. R. Crim. P. 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.” Fed. R. Crim. P. 14(b). And Rule 26.2 provides that

[a]fter a witness other than the defendant has testified on direct ex-

amination, the court, on motion of a party who did not call the wit-

ness, 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.

Fed. R. Crim. P. 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 IG Act authorizes OIG attorneys to conduct crimi-

nal 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

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

of Justice,” or to any “attorney specially appointed by the Attorney Gen-

eral,” 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 Con-

duct Regulatory Investigations, 13 Op. O.L.C. at 61 (stating that the IG

Act prohibits inspectors general from “conduct[ing] investigations consti-

tuting 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). Transfer-

ring criminal litigating responsibilities to OIG would undermine its inde-

pendence—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 Gen-

eral 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 prosecu-

tions 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 enforce-

ment functions: “[P]rosecution of suspected violations of Federal law and

the conduct of litigation are parts of the basic mission or program func-

tions of the Department of Justice,” the Report explained, “[and] the [IG]

[A]ct does not authorize inspectors general to engage in program func-

tions.” H.R. Rep. No. 100-771, at 9. “[I]n fact,” the Report continued,

“[section 9(a)] specifically prohibits the assignment of such responsibili-

ties to an inspector general.” Id. at 9 & n.48. The Conference Report

39 Op. O.L.C. 12 (2015)

accompanying the 1988 amendments likewise indicated that OIG person-

nel 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 statutes. As we have noted, different stat-

utes that regulate the same subject matter must be read in pari materia

and given full effect to the extent possible. See Mancari, 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 De-

partment 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 implau-

sible 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 prosecu-

tion 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 func-

tions 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. 74 (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’”

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

(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 attor-

neys qualify for disclosure under exception (A)(i), and questions whether this Office may

render a legal opinion 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 investiga-

tion 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 perfor-

mance 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) (Rus-

sell, 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 consti-

tutes 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)

39 Op. O.L.C. 12 (2015)

Because exception (A)(i) does not authorize the disclosure of grand ju-

ry materials to OIG, we have also considered whether a separate excep-

tion would authorize that disclosure. Exception (A)(ii) provides:

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

erations or any grand juror’s vote—may be made to . . . any govern-

ment 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 ap-

proval. However, unlike 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.” Fed. R. Crim. P. 6(e)(3)(B). And a person to

whom information is disclosed under this exception “may use that infor-

mation only to assist an attorney for the government in performing that

attorney’s duty to enforce federal criminal law.” Id.

(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 the Wire Act Applies to Non-Sports Gambling, 35 Op.

O.L.C. 134, 138 (2011) (disagreeing with the decisions of courts that had adopted a

position previously advanced by the Criminal Division); Applicability of the Antideficien-

cy 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 Antidefi-

ciency 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.

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

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.

Fed. R. Crim. P. 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 “hand-

writing 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 “attor-

ney[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

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

telecommunications statute as referring to “a strong connection” between means and

ends).

39 Op. O.L.C. 12 (2015)

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 conduct

criminal proceedings on behalf of the federal government. Fed. R. Crim.

P. 1(b)(1); see supra pp. 43–46.

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 “consid-

er[]” 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 De-

partment attorney may make a disclosure only for the purpose of obtain-

ing 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 admin-

istrative 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, be-

cause disclosures under exception (A)(ii) may be made only to a person

whom 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 de-

termination 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 dis-

closures 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

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

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: Author-

ity 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 Depart-

ment 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 enforce-

ment programs and operations. First, because an attorney’s “duty to

enforce federal criminal law” plainly includes his duty to prosecute crimi-

nal offenses, exception (A)(ii) permits Department attorneys to authorize

disclosure of grand jury materials to OIG in connection with OIG investi-

gations and reviews those attorneys believe could assist them with ongo-

ing 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 . . . investiga-

tors 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 disclo-

sure 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.

39 Op. O.L.C. 12 (2015)

Second, we think that exception (A)(ii) permits a Department leader-

ship 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 activi-

ties. As we discussed in analyzing the scope of permissible disclosure

under Title III, programmatic and policy supervision can affect the pre-

vention, investigation, or prosecution of criminal conduct as directly as

individual trial decisions, see Van de Kamp, 555 U.S. at 346, and consti-

tute 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. 29–30. Such activities are thus part of Depart-

ment 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 De-

partment 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 crimi-

nal 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 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 sug-

gest 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 su-

pervise 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-

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

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

performing 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” be-

cause it differs from the duties discussed in Sells in two respects: first,

it involves supervision of law enforcement agents in addition to prosecu-

tors; and second, it concerns criminal matters unrelated to the grand

jury investigation in which the information to be disclosed was devel-

oped. 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 enforce-

ment operations, rather than to assist in ongoing prosecutions.

In our view, however, notwithstanding these distinctions, Sells and sub-

sequent opinions support reading exception (A)(ii) to permit disclosures

to OIG in connection with Department leadership’s duties of programmat-

ic 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

39 Op. O.L.C. 12 (2015)

needed to find out what the grand jury wants to know.”). Moreover, as

Sells also recognized (and as we noted above), 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 prosecu-

tions. See id. at 436. Sells therefore fully supports the proposition that the

duty to supervise prosecutions includes a duty to supervise law enforce-

ment 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 mat-

ters 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 dis-

closure 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) (per-

mitting the automatic disclosure of grand jury materials to “another feder-

al grand jury”). This Office has also previously concluded that the disclo-

sure 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”).

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

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 disclo-

sure only in connection with civil litigation, see id. at 420; it did not

discuss, and had no occasion to address, the permissible scope of disclo-

sure in connection with programmatic supervision of criminal law en-

forcement. 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 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 pur-

poses 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 Memoran-

dum 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 Depart-

ment 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

39 Op. O.L.C. 12 (2015)

at 7. As we explained in our OPR Memorandum, “post mortem review”

of the conduct of a prosecution is necessary to evaluate and, if appropri-

ate, 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 infor-

mation 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 par-

ticular, 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 activi-

ties, such as routine financial audits of components that happen 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 investi-

gations designed to assist the Department in recovering funds through a

False Claims Act suit), rather than criminal prosecutions.

The third and final statutory prohibition on disclosure we consider is

section 626 of FCRA. Congress enacted FCRA to ensure “fair and accu-

rate credit reporting,” which it deemed “essential to the continued func-

tioning of the banking system.” 15 U.S.C. § 1681(a)(1). FCRA compre-

hensively regulates the “confidentiality, accuracy, relevancy, and proper

utilization” of information held by consumer credit reporting agencies. Id.

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

§ 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 liabil-

ity 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 for Fiscal

Year 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 infor-

mation obtained pursuant to this section outside of the Federal Bu-

reau of Investigation, except to other Federal agencies as may be

necessary for the approval or conduct of a foreign counterintelli-

gence investigation, or, where the information concerns a person

subject to the Uniform Code of Military Justice, to appropriate in-

vestigative authorities within the military department concerned as

may be necessary for the conduct of a joint foreign counterintelli-

gence investigation.

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).

* Editor’s Note: Section 626(f ) was redesignated as section 626(g) in 2015. See USA

FREEDOM Act of 2015, Pub. L. No. 114-23, § 503(c)(1), 129 Stat. 268, 290.

39 Op. O.L.C. 12 (2015)

OIG argues that under the terms of section 626(f ), it may obtain unre-

stricted access to consumer information that the FBI has obtained under

section 626. In OIG’s view, it is exempt from the limitations on disclo-

sure 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 Memoran-

dum at 3. We consider this argument below. In addition, although OIG

does not make the argument, we consider whether OIG may obtain sec-

tion 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 counterintel-

ligence 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.

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 infor-

mation obtained pursuant to an NSL to “other Federal agencies,” except

“as may be necessary for the approval or conduct of a foreign counterin-

telligence investigation,” this bar does not apply to OIG because both OIG

and the FBI are components of the Department. See OIG FCRA Memo-

randum 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 stat-

ute enacted subsequent to section 626, and by the general purposes of

OIG reviews. See OIG 2014 Memorandum at 12–14; OIG FCRA Memo-

randum 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 infor-

mation 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 out-

side 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—

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

would require reading “Federal Bureau of Investigation” to mean “De-

partment of Justice.” But these two entities are not equivalent, and Con-

gress 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 sec-

tion 626 information to “other Federal agencies.” OIG reasons that be-

cause 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 this exception. OIG FCRA Memoran-

dum 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 in-

formation available to the National Security Division (“NSD”) for pur-

poses 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 Depart-

ment of Justice” in the Attorney General), and 5 U.S.C. § 551 (“For the

purpose of this subchapter . . . ‘agency’ means each authority of the Gov-

ernment 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 of the Federal Bureau of

Investigation, except to other Federal agencies” for those purposes. 15

U.S.C. § 1681u(f ) (emphasis added). The express reference to “outside of

39 Op. O.L.C. 12 (2015)

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 De-

partment components play in “the approval or conduct of [the FBI’s]

foreign counterintelligence investigation[s].” Id. For decades, the Attor-

ney General has been authorized to “supervis[e]” and “establish” “regu-

lations” concerning the FBI’s counterintelligence activities. Exec. Order

No. 12333, § 1.14, 46 Fed. Reg. 59,941, 59,949 (Dec. 4, 1981); see The

Attorney General’s Guidelines for Domestic FBI Operations at 5 (Sept.

29, 2008) (“AG Guidelines”), http://www.justice.gov/sites/default/files/

ag/legacy/2008/10/03/guidelines.pdf (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 For-

eign Counterintelligence Investigations Conducted by the FBI (Mar. 6,

2002); 28 C.F.R. § 0.72 (assigning counterintelligence oversight func-

tions to NSD). By permitting disclosure for the “approval” of counterin-

telligence investigations, Congress presumably intended to permit the

FBI to make disclosures consistent with this longstanding grant of super-

visory authority. Indeed, a prior version of the bill would have made the

first exception applicable exclusively to disclosures within the Depart-

ment 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 Reauthori-

zation Act”). As OIG points out, section 119 of the Patriot Reauthoriza-

tion Act directed OIG to “perform an audit of the effectiveness and use,

including any improper or illegal use, of national security letters issued by

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

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 sec-

tion 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 Con-

gress’s purpose of protecting consumer privacy to prevent broad disclo-

sure of consumer information even within the Department of Justice.

Nor would a restriction on disclosure outside the FBI necessarily pre-

clude 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 ex-

plain below, we believe OIG may obtain section 626 information in

order to monitor the FBI’s compliance with FCRA’s disclosure re-

39 Op. O.L.C. 12 (2015)

strictions pursuant to section 626(f )’s first exception. The statute’s pur-

pose thus does not require OIG to have blanket access to section 626

information.

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 counterintelli-

gence investigation.” 15 U.S.C. § 1681u(f ). As we have discussed, com-

ponents of the Department outside the FBI, including OIG, are “other

Federal agencies” within the meaning of this provision. See supra pp. 61–

62. 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 circum-

stances. 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 investiga-

tion. 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 guide-

lines.

Second, we believe that section 626(f )’s first exception permits disclo-

sure of information as necessary for the programmatic and policy supervi-

sion of foreign counterintelligence investigations generally—that is, to

ensure that investigations are (or were) approved or conducted in accord-

16 As in the case of Rule 6(e)(3)(A)(ii), we presume that Congress used the word “nec-

essary” to mean useful or conducive rather than required. See supra note 15.

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

ance 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.”

(Emphases added.) But Congress has instructed that “unless the context

indicates otherwise . . . words 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 legisla-

tive 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 leader-

ship officials from obtaining information protected by section 626(f ) for

use in supervising the FBI’s conduct of foreign counterintelligence inves-

tigations. 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 pro-

grammatic 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 De-

partment 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. 63. 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

39 Op. O.L.C. 12 (2015)

section 626 information to OIG to obtain assistance in the approval or

conduct of a particular foreign counterintelligence investigation, since

OIG involvement in such investigations 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 Regu-

latory 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 infor-

mation 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 program-

matic reviews intended to help improve law enforcement operations in the

future. See supra pp. 32–35, 54. In the context of section 626, it is reason-

able to conclude that OIG investigations and reviews that could inform

decisions by Department leadership concerning supervision of foreign

counterintelligence investigations—such as OIG’s congressionally man-

dated 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 investiga-

tions, 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), http://www.

justice.gov/archive/opa/pr/2007/March/07_nsd_168.html (“Corrective Ac-

tions on the FBI’s Use of NSLs”). These measures included retrospective

and continuing audits of the FBI’s NSL usage designed to identify poten-

tial 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

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

regarding the approval or conduct of foreign counterintelligence investi-

gations, 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 for-

eign 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 Depart-

ment’s leadership in its supervisory functions. For reasons similar to those

set forth in our discussion of Title III, see supra p. 34, 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 investigations, than the compa-

rable 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 subject to the same limitation

we have explained in other contexts: OIG audits, investigations, and

reviews that have only an attenuated connection to Department leader-

ship’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. 35–36, 58 (discussing similar limits in

the context of Title III and Rule 6(e) disclosures).

39 Op. O.L.C. 12 (2015)

* * * * *

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 per-

formance of their respective duties related to law enforcement—including

duties related to Department leadership’s programmatic or policy supervi-

sion 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 per-

formance of her criminal law enforcement duties, including any supervi-

sory 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 programmatic or policy basis. 17

These statutes do not, however, authorize Department officials to dis-

close protected information to OIG in connection with all of OIG’s activi-

ties. 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 tangen-

tially 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 im-

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.

Access of DOJ IG to Certain Information Protected from Disclosure by Statute

pose certain procedural preconditions on those disclosures. Disclosures

under Title III require an assessment of whether a particular OIG investi-

gation 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 activi-

ties, 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) infor-

mation, 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) over-

rides the limits imposed by those statutes.

III.

In this Part, we address whether section 6(a)(1) overrides the disclo-

sure limitations in Title III, Rule 6(e), and section 626. We first discuss

the general interpretive principles that will guide our analysis, conclud-

ing that only a clear statement of congressional intent to override con-

flicting 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

39 Op. O.L.C. 12 (2015)

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 sec-

tion 6(a)(1), and thus that it may not disclose information covered by

those statutes outside the circumstances permitted by the statutes them-

selves.

Both the Supreme Court and this Office have repeatedly confronted

apparent conflicts between statutes that address the same subject matter.

Two lines of 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, th

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