67024 Federal Register / Vol. 71, No. 222 / Friday, November 17, 2006 / Notices 

DEPARTMENT OF LABOR 

Office of the Secretary 

Secretary’s Order 16–2006; Invoking 

Governmental Privileges 

1. Purpose. To delegate authority and 

assign responsibility to particular U.S. 

Department of Labor (DOL) officers to 

invoke claims of Governmental 

privileges arising from the functions of 

their respective agencies. 

2. Authority and Directives Affected. 

This Order is issued pursuant to 29 

U.S.C. 551, et seq.; 5 U.S.C. 301; 5 

U.S.C. 552(b). 

All prior agency delegations and 

assignments in conflict with this Order 

and its Attachment are hereby 

superseded. 

3. Background. Governmental, or 

executive, privileges are founded upon 

the public interest in the effective 

performance of the constitutional 

powers and responsibilities assigned to 

the Executive Branch. They rest largely 

upon common-law tradition, and have 

been reinforced by courts with 

references to the Constitution 

(particularly the separation of powers 

doctrine and the provisions on 

executive authority), and may also be 

rooted in statute. Unlike such privileges 

as the attorney-client or marital 

privilege, which are available to all 

litigants in a court of law, Governmental 

privileges may be invoked only by the 

Government, and solely for the purpose 

of preventing particular confidential 

information from being disclosed. 

Since Governmental privileges are 

designed to limit information available 

to litigants and the public, thereby 

limiting ‘‘the search for truth,’’ they are 

applied narrowly by the courts and 

invoked only in accordance with 

specific procedures. In order to properly 

assert a Governmental privilege before a 

court, a formal claim of privilege must 

be filed by affidavit or declaration. The 

formal claim must: (1) Be made by a 

high-level agency official to whom such 

authority has been properly delegated 

under this Order; (2) contain a 

description of the privileged material 

sufficient to permit a determination as 

to whether the claim of privilege is 

properly asserted; (3) state the reasons 

disclosure of the materials would cause 

harm; and (4) state that the invocation 

of the privilege is based on personal 

consideration by the delegated official. 

This Order effectuates the formal 

delegation of authority by the Secretary 

to particular DOL officers for the 

invocation of Governmental privileges. 

Further redelegations of authority are 

not permitted. 

4. Delegation of Authority and 

Assignment of Responsibility to DOL 

Officers to Invoke Governmental 

Privileges. 

A. Each DOL official specified in the 

attached Memorandum is hereby 

delegated authority and assigned 

responsibility to invoke all appropriate 

claims of the following Governmental 

privileges arising from the functions of 

his/her respective agency, following his/ 

her personal consideration of the matter: 

(1) Informant’s Privilege (to protect 

from disclosure the identity of any 

person who has provided information to 

the particular agency in cases arising 

under an authority delegated or 

assigned to the agency). A claim of 

privilege may be asserted where the 

official has determined that disclosure 

of the privileged matter would: (1) 

Interfere with an investigative or 

enforcement action taken by the agency 

under an authority delegated or 

assigned to it; (2) adversely affect 

persons who have provided information 

to the agency; or (3) deter other persons 

from reporting a violation of law or 

other authority delegated or assigned to 

the agency. 

(2) Deliberative Process Privilege (to 

withhold information that may disclose 

predecisional intra-agency or interagency deliberations, including the 

analysis and evaluation of facts; written 

summaries of factual evidence that 

reflect a deliberative process; and 

recommendations, opinions, or advice 

on legal or policy matters in cases 

arising under statutory provisions or 

other authorities that are delegated or 

assigned to the agency). A claim of 

privilege may be asserted where the 

official has determined that: (1) The 

information was generated prior to and 

in contemplation of a decision by a part 

of the Department; (2) the information is 

not purely factual and does not concern 

recommendations that the Department 

expressly adopted or incorporated by 

reference in its ultimate decision; and 

(3) disclosure of the privileged matter 

would have an inhibiting effect on the 

agency’s decision-making processes. 

(3) Privilege for Investigative 

Documents Compiled for Law 

Enforcement Purposes (to withhold 

information that may reveal the agency’s 

confidential investigative techniques 

and procedures). A claim of privilege 

may be asserted where the official has 

determined that disclosure of the 

privileged matter would have an 

adverse impact upon the agency’s 

enforcement of statutory provisions or 

other authorities that have been 

delegated or assigned to the agency by: 

(1) Disclosing investigative techniques 

and methodologies; (2) deterring 

persons from providing information to 

the agency; (3) prematurely revealing 

the facts of the agency’s case; or (4) 

disclosing the identities of persons who 

have provided information under an 

express or implied promise of 

confidentiality. 

B. In addition to the privileges 

identified above, the Commissioner of 

the Bureau of Labor Statistics and the 

Deputy Commissioner are hereby 

delegated authority and assigned 

responsibility to invoke all appropriate 

claims of the following Governmental 

privileges arising from the functions of 

his/her agency, following his/her 

personal consideration of the matter: 

(1) Privilege for Information Provided 

to the Government on a Pledge of 

Confidentiality (to protect from 

disclosure information provided to the 

Government under a pledge of 

confidentiality). A claim of privilege 

may be asserted where the official has 

determined that the information: (1) 

Was given to the Government on a 

pledge of confidentiality; and (2) 

disclosure of the information would 

hamper the efficient operation of a 

Government program. 

(2) Confidential Report Privilege (to 

protect from disclosure information 

required to be provided to the 

Government). A claim of privilege may 

be asserted where the official has 

determined that: (1) There is a statutory 

basis for maintaining confidentiality of 

the information sought to be protected 

from disclosure; and (2) disclosure of 

the information would be harmful to a 

governmental interest. 

5. Procedure for Invoking Claims of 

Governmental Privileges. 

A. Prior to filing a formal claim of 

privilege, the official delegated 

authority to invoke a claim of privilege 

under this Order shall personally 

review: (1) All the documents sought to 

be withheld (or, in cases where the 

volume is so large that all of the 

documents cannot be personally 

reviewed in a reasonable time, an 

adequate and representative sample of 

such documents); and (2) a description 

or summary of the litigation in which 

the disclosure is sought. 

B. The official delegated authority to 

invoke a claim of privilege under this 

Order shall consult with the Solicitor of 

Labor or his/her designee(s) prior to 

formally invoking such a claim. In 

addition, the particular official may ask 

the Solicitor of Labor or his/her 

designee(s) to file any necessary legal 

papers or documents related to the 

formal invocation of a privilege. The 

Solicitor of Labor or his/her designee(s) 

will also provide legal advice and 

assistance to all officials of the 


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Federal Register / Vol. 71, No. 222 / Friday, November 17, 2006 / Notices 67025 

Department relating to the authorities of 

this Order. 

C. The official delegated authority to 

invoke a claim of privilege under this 

Order shall consult with the Assistant 

Secretary for Congressional and 

Intergovernmental Affairs or his/her 

designee(s) prior to formally invoking a 

claim of privilege if the source of the 

request is a Member of Congress. 

6. Miscellaneous. 

A. Nothing in this Order or the 

attached Memorandum shall: (1) Be 

construed to override any applicable 

laws or statutes; (2) apply to the Office 

of Inspector General; or (3) limit the 

Secretary’s authority to perform or 

redelegate and/or reassign such 

authority and responsibility of DOL 

officials unless otherwise precluded by 

law. 

B. The attached Memorandum shall 

be published in the Federal Register. It 

is also subject to periodic revision by 

the Secretary, as necessary, and is 

effective immediately. 

C. Redelegations of authority by the 

DOL officer positions specified in the 

attached Memorandum are not 

permitted. 

7. Effective Date. This Order is 

effective immediately. 

Dated: November 9, 2006. 

Elaine L. Chao, 

Secretary of Labor. 

Memorandum for Department of Labor 

Executive Staff 

November 9, 2006. 

From: Elaine L. Chao 

Subject: Delegation of Authority and 

Assignment of Responsibility to 

Department Officers to Invoke 

Governmental Privileges. 

This Memorandum is issued pursuant to 

Secretary’s Order 16–2006 and the 

authorities cited therein, in order to 

designate specific Department (DOL) officers 

who are delegated authority and assigned 

responsibility to invoke all appropriate 

claims of Governmental privileges arising 

from the functions of their respective 

agencies. The specific delegations are listed 

below. In general, the delegation is to all 

presidentially-appointed, Senate-confirmed 

heads of agencies within the Department and 

to certain other officials. Moreover, in the 

case of larger agencies more likely to face the 

need to invoke such privileges, generally a 

delegation is made to the respective first 

assistant, as derived from Secretary’s Order 

4–2003 on Order of Succession to the 

Secretary of Labor and Continuity of 

Executive Direction. 

Governmental, or executive, privileges are 

founded upon the public interest in the 

effective performance of the constitutional 

powers and responsibilities assigned to the 

Executive Branch. They rest largely upon 

common-law tradition, and have been 

reinforced by courts with references to the 

Constitution (particularly the separation of 

powers doctrine and the provisions on 

executive authority), and may also be rooted 

in statute. Unlike such privileges as the 

attorney-client or marital privilege, which are 

available to all litigants in a court of law, 

Governmental privileges may be invoked 

only by the Government, and solely for the 

purpose of preventing particular confidential 

information from being disclosed. Since 

Governmental privileges are designed to limit 

information available to other litigants and 

the public, thereby limiting ‘‘the search for 

truth,’’ they are applied narrowly by the 

courts and invoked subject to specific 

procedures. 

At the Department of Labor, in order to 

assert a Governmental privilege before a 

court, a formal claim of privilege must be 

filed by affidavit or declaration. The formal 

claim must: (1) Be made by a high-level 

agency official to whom such authority has 

been properly delegated under this Order; (2) 

contain a description of the privileged 

material sufficient to permit a determination 

as to whether the claim of privilege is 

properly asserted; (3) state the reasons 

disclosure of the materials would cause 

harm; and (4) state that the invocation of the 

privilege is based on personal consideration 

by the delegated official. 

This Memorandum supersedes all prior 

inconsistent agency delegations and 

assignments. Agency heads shall assure that 

agency position descriptions and other 

pertinent documents are maintained 

consistently with the designations provided 

below. Any modifications to the delegation of 

authority and assignment of responsibility 

specified in this memorandum are reserved 

to the Secretary. 

This Memorandum shall be published in 

the Federal Register and codified in the 

Department of Labor Manual Series. This 

Memorandum is subject to periodic revision 

by the Secretary, as necessary, and is 

effective on the date indicated above. 

Designation of Agency Officers Delegated 

Authority and Assigned Responsibility To 

Assert Governmental Privileges 

Office of the Secretary, and any other DOL 

component not listed below: Deputy 

Secretary of Labor. 

Office of the Assistant Secretary for 

Administration and Management: Assistant 

Secretary for Administration and 

Management; Deputy Assistant Secretary for 

Operations. 

Office of the Solicitor: Solicitor of Labor; 

Deputy Solicitor. 

Employee Benefits Security 

Administration: Assistant Secretary for the 

Employee Benefits Security Administration; 

Deputy Assistant Secretary for Policy. 

Employment Standards Administration: 

Assistant Secretary for the Employment 

Standards Administration; Deputy Assistant 

Secretary. 

Wage and Hour Division: Administrator. 

Office of Labor-Management Standards: 

Deputy Assistant Secretary. 

Federal Contract Compliance Programs: 

Deputy Assistant Secretary. 

Office of Workers’ Compensation 

Programs: Director. 

Employment and Training Administration: 

Assistant Secretary for the Employment and 

Training Administration; Deputy Assistant 

Secretary for Employment and Training 

(organizationally, position known as Deputy 

Assistant Secretary for the Workforce 

Investment System). 

Mine Safety and Health Administration: 

Assistant Secretary for the Mine Safety and 

Health Administration; Deputy Assistant 

Secretary for Mine Safety and Health 

(organizationally, position known as Deputy 

Assistant Secretary for Policy). 

Occupational Safety and Health 

Administration: Assistant Secretary for the 

Occupational Safety and Health 

Administration; Deputy Assistant Secretary 

(position primarily responsible for 

Congressional and Intergovernmental liaison 

activity). 

Veterans’ Employment and Training 

Service: Assistant Secretary for the Veterans’

Employment and Training Service; Deputy 

Assistant Secretary. 

Office of the Assistant Secretary for Policy: 

Assistant Secretary for the Office of the 

Assistant Secretary for Policy. 

Office of Congressional and 

Intergovernmental Affairs: Assistant 

Secretary for the Office of Congressional and 

Intergovernmental Affairs. 

Office of Disability Employment Policy: 

Assistant Secretary for the Office of Disability 

Employment Policy. 

Office of Public Affairs: Assistant Secretary 

for the Office of Public Affairs. 

Bureau of Labor Statistics: Commissioner 

of the Bureau of Labor Statistics; Deputy 

Commissioner. 

Office of the Chief Financial Officer: Chief 

Financial Officer; Deputy Chief Financial 

Officer. 

Women’s Bureau: Director of the Women’s 

Bureau. 

Bureau of International Labor Affairs: 

Deputy Under Secretary for International 

Affairs. 

Office of the Chief Information Officer: 

Chief Information Officer. 

Office of the Chief Acquisition Officer: 

Chief Acquisition Officer. 

Office of the Chief Human Capital Officer: 

Chief Human Capital Officer. 

[FR Doc. 06–9239 Filed 11–16–06; 8:45 am] 

BILLING CODE 4510–23–P 


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