12

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 Reporting 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 Inspector General.

Inspector General Empowerment Act of 2016, Pub. L. No. 114-317, sec. 5(1), § 6(a)(1)(A), 

(B) (codified at 5 U.S.C. app. § 6(a)(1)(A), (B)). The amended statute also provides a 

special procedure for access to “Federal grand jury materials protected from disclosure 

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

13

protected information.1 In particular, you have asked whether the Department may grant OIG access, in connection with OIG audits, investigations, and reviews, to information protected by the Federal Wiretap Act;

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as 

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

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

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

exceptions, each of these statutes restricts the disclosure of particular 

categories of information: Title III limits the Department’s authority to 

disclose the contents of intercepted communications; Rule 6(e) limits the 

Department’s authority to disclose grand jury materials; and section 626 

of FCRA limits the authority of the Federal Bureau of Investigation 

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

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

section 6(a)(1) of the Inspector General Act of 1978, as amended, 

5 U.S.C. app. (the “IG Act”), authorizes OIG “to have access to all records, reports, audits, reviews, documents, papers, recommendations, or 

other material” available to the Department and relevant to the programs 

and operations OIG is charged with reviewing. 5 U.S.C. app. § 6(a)(1). 

In views letters submitted in connection with the preparation of this 

opinion, OIG, together with certain other interested entities, argues that 

section 6(a)(1) of the IG Act grants it an unqualified right of access to 

Department records relevant to its audits, investigations, and reviews, 

notwithstanding any limitations on disclosure imposed by Title III, Rule

6(e), or section 626 of FCRA. OIG also argues that, even leaving section

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

section 626 permit the Department and its components to disclose protected information to OIG when that information is pertinent to its audits, 

investigations, or reviews. Certain other Department components disagree, arguing that the statutory exceptions in Title III, Rule 6(e), and 

 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)

14

section 626 permit disclosure of protected information to OIG only in a 

limited set of circumstances, and that the limits on disclosure apply even 

when OIG requests material under section 6(a)(1) of the IG Act.2

 

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

Counsel, from William M. Blier, General Counsel, OIG (Apr. 29, 2015, 6:37 PM) (“OIG 

2015 E-mail”); Memorandum for the Acting Assistant Attorney General, Office of Legal 

Counsel, from Michael E. Horowitz, Inspector General (June 24, 2014) (“OIG 2014 

Memorandum”); Memorandum for the Attorney General from Cynthia A. Schnedar, 

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

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

Attorney General from Cynthia A. Schnedar, Acting Inspector General (Dec. 6, 2011) 

(“OIG FCRA Memorandum”); Memorandum for Caroline D. Krass, Principal Deputy 

Assistant Attorney General, Office of Legal Counsel, from Carol F. Ochoa, Assistant 

Inspector General, Oversight and Review Division (Mar. 9, 2011) (“OIG Supplemental 

Memorandum”); Memorandum for Paul P. Colborn, Special Counsel, Office of Legal 

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

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

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

Assistant Attorney General, Criminal Division (July 14, 2014); Letter for John E. Bies, 

Deputy Assistant Attorney General, Office of Legal Counsel, from Phyllis K. Fong, 

Chair, and Lynne A. McFarland, Vice Chair, Council of the Inspectors General on 

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

Deputy Assistant Attorney General, Office of Legal Counsel, from G. Bradley Weinsheimer, Deputy Counsel, Office of Professional Responsibility (June 24, 2014); E-mail 

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

Jocelyn Aqua, National Security Division (Mar. 2, 2012, 3:54 PM) (“NSD E-mail”); 

Memorandum for Virginia A. Seitz, Assistant Attorney General, Office of Legal Counsel, 

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

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

from Phyllis K. Fong, Chair, and Carl Clinefelter, Vice Chair, CIGIE (Oct. 7, 2011); 

Memorandum for the Office of the Deputy Attorney General, from Patrick W. Kelley, 

Acting General Counsel, FBI (Oct. 5, 2011); Memorandum for John Bies, Deputy Assistant Attorney General, Office of Legal Counsel, from Lanny A. Breuer, Assistant Attorney General, Criminal Division (Apr. 12, 2011); Memorandum for Jonathan G. Cedarbaum, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from 

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

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

Branch, we received a letter concerning the issues addressed in this opinion from Senator 

Charles E. Grassley and Representative John Conyers, then-Ranking Members of the 

Senate and House Committees on the Judiciary. See Letter for Karl R. Thompson, Acting 

Assistant Attorney General, Office of Legal Counsel, from Charles E. Grassley, Ranking 

Member, Committee on the Judiciary, U.S. Senate, and John Conyers, Ranking Member, 
Access of DOJ IG to Certain Information Protected from Disclosure by Statute

15

For the reasons set forth below, we conclude that the statutory exceptions in Title III, Rule 6(e), and section 626 of FCRA permit the Department to disclose to OIG the covered information it seeks in most, but not 

all, of the circumstances in which OIG might request it. In particular, 

Title III permits Department officials to disclose to OIG the contents of 

intercepted communications when doing so could aid the disclosing 

official or OIG in the performance of their duties related to law enforcement, including duties related to Department leadership’s supervision of 

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

permits disclosure of grand jury materials to OIG if a qualifying attorney 

determines that such disclosure could assist her in the performance of her 

criminal law enforcement duties, including any supervisory law enforcement duties she may have. And FCRA permits the FBI to disclose to OIG 

consumer information obtained pursuant to section 626 if such disclosure 

could assist in the approval or conduct of foreign counterintelligence 

investigations, including in the supervision of such investigations on a 

programmatic or policy basis. In our view, however, Title III and Rule 

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

with the conduct of the Department’s criminal law enforcement programs 

or operations, and section 626 of FCRA forbids disclosures that have 

either an attenuated or no connection with the approval or conduct of 

foreign counterintelligence investigations. 

We further conclude that, to the extent that Title III, Rule 6(e), and section 626 prohibit Department officials from disclosing information to 

OIG, section 6(a)(1) of the IG Act does not override these prohibitions. 

Under longstanding interpretive principles, general access provisions like 

section 6(a)(1) are generally construed not to override specific, carefully 

drawn limitations on disclosure like Title III, Rule 6(e), and section 626

unless Congress has clearly indicated that it intends the general access 

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

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

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

moreover, 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 appreciate 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)

16

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

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

endeavored to determine as a matter of law, using established tools of 

statutory construction, how best to reconcile the strong privacy protections embodied in Title III, Rule 6(e), and section 626 with the interest in 

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

This opinion has four parts. In Part I, we set forth some statutory background related to the IG Act, and explain the potential statutory conflict 

that arises when OIG, relying on the IG Act’s general access provision, 

requests material that is also covered by the nondisclosure provisions in 

Title III, Rule 6(e), or section 626 of FCRA. In Part II, we examine Title 

III, Rule 6(e), and section 626 to determine whether the exceptions in 

those statutes permit disclosure of the protected materials OIG seeks, 

thereby avoiding the potential conflict between those statutes and the IG 

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

all circumstances, we explain why, in our view, the general access provision in section 6(a)(1) of the IG Act does not override the specific protections of sensitive 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

I.

Congress enacted the IG Act in 1978 to “create independent and objective units” within the Executive Branch that would promote the integrity 

of executive agencies and keep executive officials and Congress fully 

informed about their operations. 5 U.S.C. app. § 2. To achieve these 

goals, the Act created an Office of Inspector General in a large number of 

federal agencies. Id. §§ 2(A), 8G(a)–(b), 12(2).4 Each office is led by an 

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

OIG information protected by Title III, Rule 6(e), and section 626 of FCRA. Opinion 

Request. Accordingly, we do not address in this opinion whether and, if so, under what 

circumstances the Department could lawfully withhold information it is legally permitted 

to disclose.

4 The IG Act uses the term “establishment” to refer to those enumerated agencies, departments, commissions, boards, and corporations in which Congress created an Office of 
Access of DOJ IG to Certain Information Protected from Disclosure by Statute

17

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

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

Pursuant to their statutory mandate, inspectors general engage in a 

wide variety of audits, investigations, and reviews. The Department’s 

OIG, for example, conducts investigations of suspected criminal wrongdoing by Department employees; investigations of administrative misconduct that may or may not rise to the level of criminal wrongdoing; 

and broader reviews of Department programs and operations that seek to 

assess whether the programs are lawful, well run, or otherwise in the 

public interest. See Office of the Inspector General, U.S. Dep’t of Justice, Semiannual Report to Congress: Apr. 1, 2014–Sept. 30, 2014 at 13–

14 (Oct. 31, 2014) (“Semiannual Report”); 28 C.F.R. § 0.29a(b)(2), (4). 

The Department’s OIG also conducts financial and administrative audits 

of Department components. See Semiannual Report at 13; 28 C.F.R. 

§ 0.29a(b)(1). Significantly, however, while the IG Act affords inspectors general broad authority to investigate an agency’s programs and 

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

activities “constituting an integral part of the programs involved,” Inspector General Authority to Conduct Regulatory Investigations, 13 Op. 

O.L.C. 54, 62 (1989) (“Authority to Conduct Regulatory Investigations”), and it prohibits the heads of federal agencies from transferring 

 

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)

18

to inspectors general any of the agency’s “program operating responsibilities,” 5 U.S.C. app. § 9(a).5

The IG Act also grants inspectors general several enumerated authorities that help them carry out their statutory duties, such as the authority to 

issue subpoenas, take sworn testimony, and hire staff. See id. § 6(a)(4), 

(5), (7). Especially relevant here is the authority to obtain records and 

other materials from the agency over which an inspector general has 

investigative jurisdiction. This authority is set forth in section 6(a)(1), 

which provides:

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

is authorized . . . to have access to all records, reports, audits, reviews, documents, papers, recommendations, or other material available to the applicable [agency] which relate to programs and operations with respect to which that Inspector General has responsibilities under this Act. 

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

materials available to his agency and within his investigative jurisdiction, 

this provision implicitly imposes a corresponding duty on the applicable 

agency to provide the inspector general with such access upon request. 

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

IG Act qualifies this broad disclosure requirement. As originally enacted, 

the IG Act did not establish an Office of the Inspector General in the 

Justice Department. When Congress extended the Act’s provisions to the 

Department in 1988, see Inspector General Act Amendments of 1988, 

Pub. L. No. 100-504, § 102(c), 102 Stat. 2515, 2515–16, Congress limited 

OIG’s authority to investigate matters involving certain kinds of information, in recognition of the sensitivity of much of the Department’s 

work, see H.R. Rep. No. 100-1020, at 24 (1988) (Conf. Rep.). Specifically, section 8E(a)(1) of the Act provides that the Department’s Inspector 

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

 5 Some of OIG’s statutory responsibilities, such as conducting investigations of suspected criminal wrongdoing by Department employees, see 5 U.S.C. app. § 8E(b)(2), (4), 

may involve the same kinds of activities as the “program operating responsibilities” of 

other Department components. The IG Act does not prevent OIG from carrying out these 

activities pursuant to its statutory authority. See Authority to Conduct Regulatory Investigations, 13 Op. O.L.C. at 66–67 & n.21.
Access of DOJ IG to Certain Information Protected from Disclosure by Statute

19

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 investigations or proceedings,” “undercover operations,” and “other matters the 

disclosure of which would constitute a serious threat to national security.” 

5 U.S.C. app. § 8E(a)(1). Section 8E(a)(2) similarly provides that the 

Attorney General may “prohibit the Inspector General from carrying out 

or completing any audit or investigation . . . if the Attorney General 

determines that such prohibition is necessary to prevent the disclosure of 

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

significant impairment to the national interests of the United States.” Id.

§ 8E(a)(2). Section 8E thus provides a mechanism through which the 

Attorney General can “prevent the disclosure” of certain sensitive information to which OIG would otherwise be entitled under section 6(a)(1). 

Id.

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

governs OIG’s access to Department materials. As noted above, in conducting its audits, investigations, and reviews, OIG has sometimes requested materials that include the contents of wire, oral, or electronic 

communications the Department has intercepted pursuant to Title III; 

information the Department has acquired in the course of grand jury 

proceedings; and consumer information the FBI has obtained using National Security Letters issued under section 626 of FCRA. And while such 

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

its use and disclosure is also regulated, and in many circumstances prohibited, by Title III, Rule 6(e), and section 626.

6 Specifically, as we 

discuss in more detail below, Title III bars investigative and law enforcement officers from using or disclosing the contents of lawfully intercepted 

communications unless a statutory exception to Title III’s disclosure 

prohibitions applies, see 18 U.S.C. § 2517, and imposes administrative, 

civil, and sometimes criminal sanctions for unauthorized disclosure, see 

 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 Information Act, 5 U.S.C. § 552(b)(3)).
39 Op. O.L.C. 12 (2015)

20

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 counterterrorism or intelligence investigation) except as authorized by one of the 

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

unauthorized disclosure a basis for civil damages and disciplinary action, 

see id. § 1681u(i)–(j).

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

Title III, Rule 6(e), or section 626, Department officials face potentially 

conflicting statutory directives. Title III, Rule 6(e), and section 626

prohibit the Department from disclosing such materials—on pain of 

contempt, administrative and civil sanctions, and sometimes criminal 

penalties—unless a statutory exception applies. The IG Act, in contrast, 

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

the Department, relate to an OIG review of programs or operations within its investigative jurisdiction, and are not covered by a determination to 

withhold them under section 8E. 

Where two statutes govern the same subject matter, the Supreme 

Court has instructed that the statutes are to be read in pari materia and 

construed, where possible, as part of a single and coherent regulatory 

scheme. See Morton v. Mancari, 417 U.S. 535, 551 (1974) (“When there 

are two acts upon the same subject, the rule is to give effect to both if 

possible.” (quoting United States v. Borden Co., 308 U.S. 188, 198 

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

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

534 U.S. 124, 143–44 (2001); Vimar Seguros y Reaseguros, S.A. v. M/V 

Sky Reefer, 515 U.S. 528, 533 (1995); Ruckelshaus v. Monsanto Co., 

467 U.S. 986, 1018 (1984). Only where a harmonious construction of 

two statutes is impossible should one be construed as overriding or 

implicitly repealing the other. 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

21

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.

A.

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

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

and Katz v. United States, 389 U.S. 347 (1967), which held that electronic 

surveillance constitutes a search subject to the limits imposed by the 

Fourth Amendment. In response to these rulings, Congress created a 

comprehensive statutory scheme governing the interception, use, and 

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

§§ 2510–2522, thereby establishing a mechanism through which law enforcement officials could conduct electronic surveillance in a manner that 

“me[t] the constitutional requirements” enunciated in Berger and Katz. 

United States v. U.S. Dist. Court for E. Dist. of Mich., S. Div., 407 U.S. 

297, 302 (1972); see Scott v. United States, 436 U.S. 128, 130 (1978) 

(noting that Title III was intended to “provide law enforcement officials 

with some of the tools thought necessary to combat crime without unnecessarily infringing upon the right of individual privacy”). Title III permits 

the Attorney General and other Department leadership officials to authorize investigative or law enforcement officers to apply for court orders 

allowing them to intercept wire, oral, or electronic communications. See 

18 U.S.C. §§ 2510, 2516(1), (3), 2518(1)(a); see also id. § 2516(2) (authorizing applications by certain state attorneys). And it permits courts to 

grant such orders if the government makes a series of procedural and 

evidentiary showings, including a showing that the interception “may 

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

offenses (or, for the interception of an electronic communication, evidence of “any Federal felony”). Id. §§ 2516(1), (3), 2518. 

Once an investigative or law enforcement officer has lawfully intercepted a communication, Title III prohibits that officer from further 

disclosing the contents of the communication—and, as noted above, 

subjects her to potential administrative, civil, or criminal sanctions if she 

does so—unless section 2517 authorizes the disclosure. See Title III

Electronic Surveillance Material and the Intelligence Community, 24 Op. 
39 Op. O.L.C. 12 (2015)

22

O.L.C. 261, 270–71 n.12, 272 (2000) (“Title III Intelligence Community”); 18 U.S.C. § 2520(a), (f), (g) (authorizing civil damages and administrative discipline for willful disclosures); id. § 2511(1)(e), (4)(a) (authorizing criminal penalties for certain intentional disclosures). One provision 

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

that 

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

authorized by this chapter, has obtained knowledge of the contents 

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

therefrom, may disclose such contents to another investigative or law 

enforcement officer to the extent that such disclosure is appropriate 

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

or receiving the disclosure.

18 U.S.C. § 2517(1). This provision thus permits disclosure of the contents of a lawfully intercepted communication if the disclosure is made 

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

investigative or law enforcement officer,” (3) “to [an] extent . . . appropriate to the proper performance of the official duties of the officer 

making or receiving the disclosure.” A separate provision in Title III, 

section 2510(7), defines an “[i]nvestigative or law enforcement officer” 

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

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

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

authorized by law to prosecute or participate in the prosecution of such 

offenses.” Id. § 2510(7). 

OIG contends that section 2517(1) authorizes Department investigative 

and law enforcement officers to disclose the contents of lawfully intercepted communications to OIG whenever OIG deems such information 

pertinent to any of its investigations. It observes that, in a prior opinion, 

this Office “determined that OIG agents . . . qualify as ‘investigative 

officers’ authorized to disclose or receive Title III information.” OIG 

2014 Memorandum at 11 (citing Whether Agents of the Department of 

Justice Office of Inspector General are “Investigative or Law Enforcement Officers” Within the Meaning of 18 U.S.C. § 2510(7), 14 Op. O.L.C. 

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

disclosures to assist in its audits, investigations, and reviews are invaria-
Access of DOJ IG to Certain Information Protected from Disclosure by Statute

23

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

Department’s criminal law enforcement programs for purposes of “supervision or oversight.” OIG Title III Memorandum at 2; see OIG 2014 

Memorandum at 10–12; cf. OIG Supplemental Memorandum at 35–38. 

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

section, we conclude that OIG is correct that OIG agents qualify as “investigative officers” who may receive Title III information, but—consistent with the conclusion in our 2000 opinion—disagree with OIG’s 

broad argument that Title III permits disclosure in connection with duties 

unrelated to law enforcement. In the second section, we substantially 

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

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

either the officer making or the officer receiving the disclosure. In particular, we conclude that Title III permits disclosure in connection with 

OIG reviews that concern, or are designed to develop recommendations 

about, the conduct of the Department’s criminal law enforcement programs, policies, or practices. As we explain, many—but not all—OIG 

investigations and reviews are likely to qualify for disclosure under this 

standard.

1.

OIG’s first argument is that section 2517(1) invariably permits Department officials to disclose Title III information to OIG agents. See OIG 
39 Op. O.L.C. 12 (2015)

24

2014 Memorandum at 10–12. We agree that disclosures between Department officials and OIG agents generally comply with the statute’s first 

two requirements: Numerous officers of the Department are “investigative 

or law enforcement officer[s]” entitled to disclose Title III information 

under section 2517(1), and OIG agents are “investigative or law enforcement officer[s]” entitled to receive such information. But, as we explain 

below, a prior opinion of this Office concluded that the statutory phrase 

“official duties” refers only to official duties related to law enforcement. 

That conclusion applies here, and means that disclosing information to 

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

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

meaning of section 2517(1).

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

made by an “investigative or law enforcement officer,” defined as an 

officer of the United States (or a state or locality) empowered to “conduct 

investigations of,” “make arrests for,” or, if the officer is an attorney, 

“prosecute or participate in the 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 typically possess Title III information, such as FBI agents, qualify as investigative or law enforcement officers by virtue of their authority to “investigat[e]” and “make arrests for” crimes enumerated in section 2516. Id.; 

see, e.g., 28 C.F.R. § 0.85 (enumerating investigatory functions of the 

FBI). And prosecutors, such as Assistant United States Attorneys, qualify 

because they are federal officers “authorized by law to prosecute or participate in the prosecution of” enumerated offenses. 18 U.S.C. § 2510(7); 

see, e.g., 28 U.S.C. §§ 542, 547 (authorizing United States Attorneys and 

their assistants to prosecute federal offenses). Officers of the Department 

with leadership or supervisory responsibilities, such as the Attorney 

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

enforcement officers. They too are executive officers generally vested 

with authority to investigate, make arrests for, and prosecute offenses 

enumerated in section 2516. See, e.g., 28 U.S.C. §§ 509, 515; 28 C.F.R. 

§ 0.15(a). In addition, as we explain below, these officers participate in 

investigations, arrests, and prosecutions through their direction and super-
Access of DOJ IG to Certain Information Protected from Disclosure by Statute

25

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 enforcement officer. As OIG observes, this Office has already concluded, in a 

1990 opinion, that OIG agents “qualify as ‘investigative officer[s]’ under 

section 2510(7).” Investigative Officers, 14 Op. O.L.C. at 109 (alteration 

in original). OIG agents, as officers in the Executive Branch, are “officer[s] of the United States.” 18 U.S.C. § 2510(7). Further, as we explained in our 1990 opinion, the IG Act “entrusts [OIG] with investigative, auditing, and other responsibilities relevant to the detection and 

prosecution of fraud and abuse within [Department] programs or operations.” 14 Op. O.L.C. at 109–10. When OIG agents, exercising those 

responsibilities, “discover evidence that . . . Department personnel, contractors, or grantees are engaging in [offenses enumerated in section 

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

or injuring an officer, juror, or witness,” or “obstruction of criminal 

investigations”—they have the authority to investigate those crimes. Id.

at 110. Indeed, the portion of the IG Act that created OIG specifically 

authorizes it to “investigate allegations of criminal wrongdoing” by Department employees. 5 U.S.C. app. § 8E(b)(2), (4); see also id. § 8E(d); 

28 C.F.R. §§ 0.29a(b)(2), 0.29c(a). Furthermore, upon learning of “‘reasonable grounds to believe there has been a violation of Federal criminal 

law,’” inspectors general are required to “‘report [such violations] expeditiously to the Attorney General,’” Investigative Officers, 14 Op. O.L.C. 

at 109 (quoting 5 U.S.C. app. § 4(d)), presumably so that the Attorney 

General can consider the matter for prosecution. OIG’s investigative 

jurisdiction thus “carries with it the power to investigate offenses enumerated in section 2516,” and as a result, OIG agents—“including special agents, auditors and investigators”—are “investigative officers” 

entitled to receive disclosures of Title III information under section 

2517(1). Id. at 110.7

 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)

26

The conclusion that both Department officials who maintain Title III

information and OIG agents who seek it are “investigative or law enforcement officer[s]” under section 2517(1), however, does not mean that 

those officers may share Title III information with each other in all circumstances. Section 2517(1)’s third requirement is that any disclosure of 

Title III information between qualifying officers must be “appropriate to 

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

receiving the disclosure.” 18 U.S.C. § 2517(1). In our 2000 Title III

Intelligence Community opinion, this Office concluded that the phrase 

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

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

to the prevention, investigation, or prosecution of criminal conduct.” 24 

Op. O.L.C. at 264 n.7, 265. 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 enforcement purposes.” Id.; see id. at 267–69 (discussing the statute’s purpose). We also noted that Title III’s legislative history demonstrated that 

“Congress sought in § 2517 to serve ‘criminal law investigation and 

enforcement objectives,’” id. at 265 (quoting Am. Friends Serv. Comm. v. 

Webster, 720 F.2d 29, 73 (D.C. Cir. 1983)), and observed, based on a 

survey of judicial decisions applying section 2517, that “the uses of Title 

III information permitted by courts have all related to law enforcement,” 

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

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

disclosure of Title III material only for purposes related to law enforcement.” Id. at 265, 267.

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

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

Intelligence Community opinion concerned disclosures of Title III information to members of the intelligence community, who we concluded 

were not “investigative or law enforcement officer[s]” within the meaning 

of sections 2510(7) and 2517. See OIG 2014 Memorandum at 11. As a 
Access of DOJ IG to Certain Information Protected from Disclosure by Statute

27

result, our conclusion there—that Title III information could be disclosed 

to members of the intelligence community in certain circumstances—was 

based not on section 2517(1), but on section 2517(2), a different exception that permits investigative or law enforcement officers to “use” Title 

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

appropriate to the proper performance of [the] official duties” of the disclosing officer. 18 U.S.C. § 2517(2). As OIG observes, its agents are 

investigative or law enforcement officers, and thus, unlike members of the 

intelligence community, may in principle receive disclosures on the basis 

of their own “official duties” under section 2517(1), rather than the duties 

of the disclosing officer. OIG argues that, as a result, the conclusions in 

Title III Intelligence Community should not control the scope of the disclosures it may receive. See OIG 2014 Memorandum at 11. 

We disagree. Both sections 2517(1) and 2517(2) use the phrase “official duties,” and as we explained in Title III Intelligence Community, 

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

. . . must be interpreted 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 receiving officer in section 2517(1) to have a broader scope than those of a 

disclosing officer in the same section, since the same phrase applies 

equally to both kinds of officers. See 18 U.S.C. § 2517(1) (requiring that 

disclosure assist “the official duties of the officer making or receiving the 

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

Title III Intelligence Community thus extends to section 2517(1), and 

applies to the duties of both receiving and disclosing officers.

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

documents to . . . OIG in the context of [any] duly authorized review 

would typically be ‘appropriate to the proper performance of the official 

duties of the official making . . . the disclosure’” solely because of “that 

official’s duty to cooperate fully with . . . OIG’s investigations and re-
39 Op. O.L.C. 12 (2015)

28

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 section 2517(1). Id. at 264, 271. Similarly, OIG’s duty (as the potential receiving officer) to audit, investigate, and review the Department’s activities does not automatically justify Title III disclosure, because it too may 

not always relate to law enforcement. As a result, we do not believe 

Department investigative or law enforcement officers can disclose Title 

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

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

enforcement.

2.

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

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

investigations, and reviews still qualify for disclosure, because they involve investigations of alleged criminal wrongdoing or administrative 

(and potentially criminal) misconduct by Department employees, or reviews of the Department’s criminal law enforcement programs for purposes of “supervision and oversight.” OIG Title III Memorandum at 2. 

For the reasons set forth below, we agree that many—but not all—of 

OIG’s investigations and reviews are sufficiently related to law enforcement to support disclosure based on either the official duties of the officer 

making the disclosure, or the official duties of the officer receiving it. 

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

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

above, numerous officers within the Department qualify as “investigative 

or law enforcement officer[s]” under section 2510(7). Their “official 

duties” related to law enforcement—and, thus, the functions in connection 

with which they may disclose Title III 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

29

ground activities, such as investigating, making arrests for, and prosecuting crimes. See id. § 2510(7). Higher-ranking Department officials perform duties related to law enforcement when they direct and supervise 

those activities, such as by approving search warrant and wiretap applications, managing criminal investigations, and setting trial strategy—all 

functions that are integral parts of the prevention, investigation, and 

prosecution of criminal offenses. See, e.g., United States v. Sells Eng’g, 

Inc., 463 U.S. 418, 429 n.11 (1983) (recognizing that a prosecutor “conduct[s] criminal matters” in his role as a “supervisor” as well as by 

appearing before a grand jury); 18 U.S.C. § 2510(7) (stating that any 

attorney who is authorized to “participate in the prosecution” of an enumerated offense is an investigative or law enforcement officer). These 

officials may therefore disclose Title III information to OIG agents to the 

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

these various functions, including “for the purpose of obtaining assistance” in carrying them out. Title III Intelligence Community, 24 Op. 

O.L.C. at 269; see id. at 261.8

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

official duties related to law enforcement when they supervise law enforcement activities on a programmatic or policy basis—for example, 

when they issue guidelines for the exercise of prosecutorial discretion, or 

set rules governing the conduct of line-level officers. See, e.g., Memorandum for Heads of Department of Justice Components and United States 

Attorneys from the Attorney General, Re: Federal Prosecution Priorities

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

prosecution priorities); FBI, Domestic Investigations and Operations 

Guide (Oct. 15, 2011) (establishing policies for the conduct of the FBI’s 

domestic investigations). Although these programmatic and policy decisions are somewhat removed from on-the-ground law enforcement activities, they frequently affect these activities just as directly as supervisory 

decisions made on a case-by-case basis: A Department policy prohibiting 

a particular law enforcement tactic or mandating certain charging deci-

 8 For example, if OIG investigated a Department employee for alleged criminal misconduct and then referred the matter for prosecution, the prosecutor might subsequently 

seek to consult with OIG about its investigation in the course of preparing or conducting 

the prosecution. During that consultation, the prosecutor could disclose Title III information to OIG if doing so would help the prosecutor prepare or conduct the prosecution.
39 Op. O.L.C. 12 (2015)

30

sions, for instance, can affect the conduct of a large number of investigations and prosecutions all at once. See Van de Kamp v. Goldstein, 555 

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

to the same degree of prosecutorial immunity when formulating “general 

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

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

If that supervision did not constitute an “official dut[y]” within the meaning of section 2517(1), then leadership officials would be unable to programmatically review the contents of wiretaps in order to ensure that 

officers were exercising their Title III authorities responsibly and lawfully, or to conduct general management and supervision of Department law 

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

unlikely that Congress intended to handicap leadership officials in this 

way. Indeed, interpreting Title III to impair programmatic or policy supervision of the use of Title III authorities and materials would undermine 

Congress’s goal of “protect[ing] privacy to the maximum extent possible, 

consistent with permitting electronic surveillance for law enforcement 

purposes.” Title III Intelligence Community, 24 Op. O.L.C. at 265; cf.

United States v. Giordano, 469 F.2d 522, 527 (4th Cir. 1972) (noting that 

“[b]ecause of the delicate nature of the power to initiate surveillance 

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

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

Department). These considerations reinforce our conclusion that supervising law enforcement activities on a programmatic or policy basis qualifies 

as an “official dut[y]” related to law enforcement within the meaning of 

section 2517(1).
Access of DOJ IG to Certain Information Protected from Disclosure by Statute

31

A Department leadership official may therefore disclose Title III materials to OIG agents when doing so would be appropriate to the performance of that official’s duty to supervise law enforcement activities on a 

programmatic or policy basis. And, while we will not attempt to specify in 

the abstract all situations in which such disclosures would be appropriate, 

we think that, in general, a wide range of OIG investigations and reviews 

would likely assist Department leadership officials in conducting such 

programmatic and policy supervision. One of the central purposes of 

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

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

in part to “provide a means for keeping the head of [each] [agency] . . . 

fully and currently informed about problems and deficiencies relating to 

the administration of [the agency’s] programs and operations and the 

necessity for and progress of corrective action,” 5 U.S.C. app. § 2(3), and 

it assigned OIG the statutory duty of providing reports and recommendations about such issues to Department leadership, see id. § 4(a)(5). Moreover, consistent with Congress’s purpose, “OIG’s reports of its investigations and reviews have historically provided the Attorney General and 

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

connection with the exercise of their supervisory responsibilities over the 

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

Inspector General, from Sally Quillian Yates, Acting Deputy Attorney 

General, at 2 (Apr. 23, 2015) (“Yates Letter”). We therefore believe that it 

would generally be “appropriate to the proper performance of the official 

duties” of a member of the Department’s leadership to disclose Title III 

information to OIG agents in connection with investigations or reviews of 

law enforcement programs and operations that could inform supervisory 

decisions made by Department leadership about such programs and operations; that is, investigations or reviews that concern, or are designed to 

develop recommendations about, the manner in which the Department 

prevents, investigates, or prosecutes crimes.9

 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)

32

We now turn to disclosures that would be appropriate to the proper performance of the official duties of the officer “receiving the disclosure”—

in this case, OIG agents. As noted above, this Office has previously 

concluded that OIG agents qualify as “investigative officer[s]” under 

section 2510(7) by virtue of their authority to investigate allegations of 

criminal wrongdoing—including offenses enumerated in section 2516—

by Department employees, contractors, and grantees. Investigative Officers, 14 Op. O.L.C. at 109 (alteration in original). Because investigations 

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

enforcement, section 2517(1) authorizes Department investigative and law 

enforcement officers to disclose Title III information to OIG agents as 

“appropriate to the proper performance” of OIG’s investigations of alleged 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 programs 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

33

We recognize that, in at least two respects, OIG reviews of Department law enforcement operations have a more attenuated relationship to 

the actual conduct of those operations than policy and programmatic 

supervision conducted by Department leadership; but we do not think 

that either of these distinctions prevents the conduct of such reviews 

from constituting an “official dut[y]” under section 2517(1). First, OIG 

provides information and recommendations that may inform supervisory 

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

actually make operational decisions concerning the Department’s law 

enforcement activities. See Authority to Conduct Regulatory Investigations, 13 Op. O.L.C. at 62 (concluding that inspectors general may not 

conduct “investigations constituting an integral part of the programs 

involved”); 5 U.S.C. app. § 9(a) (prohibiting the Attorney General from 

transferring to OIG “program operating responsibilities”). Neither the 

statutory phrase “official duties,” however, nor our prior conclusion that 

this phrase encompasses duties that “relate to law enforcement,” Title III 

Intelligence Community, 24 Op. O.L.C. at 271, requires that such duties 

involve operational law enforcement responsibilities. Indeed, such a 

requirement would exclude activities that are essential to the effective 

conduct of core law enforcement functions. It is difficult to imagine how 

most law enforcement duties, including the duty to set relevant policy 

and conduct programmatic supervision, could be carried out responsibly 

without the benefit of the fact-finding and evaluative work necessary to 

inform them. And it would make little sense to conclude that, for example, the Attorney General and her assistants are not engaged in “official 

duties” related to law enforcement, and thus cannot obtain relevant Title 

III information, when they conduct a review of a law enforcement program that relies on such information, but that the Attorney General is

engaged in a law enforcement duty, and thus may obtain such access, 

when she ultimately issues direction or guidance about that program. We 

therefore think that the duty to review and investigate law enforcement 

programs, like the duty to supervise those programs on a programmatic 

or policy level, qualifies as an “official dut[y]” related to law enforcement under section 2517(1).

Second, in providing its recommendations and analysis to the Attorney 

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

direction and supervision. See 5 U.S.C. app. § 3(a) (providing that the 
39 Op. O.L.C. 12 (2015)

34

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

operations would enhance the quality of such evaluations. See H.R. 

Rep. No. 100-771, at 8–9 (1988) (explaining that a lack of independence 

impaired the effectiveness of the Department’s internal audit and investigation components). We are reluctant to conclude that the relative independence that Congress determined would improve the value of OIG’s 

reviews at the same time renders them insufficiently “related to law 

enforcement” to support disclosure of the Title III information OIG needs 

to perform such reviews effectively. 

Consequently, we believe that OIG investigations and reviews that concern, or are designed to develop recommendations about, the manner in 

which the Department prevents, investigates, or prosecutes crimes “serve 

criminal law investigation and enforcement objectives” and “relate to law 

enforcement,” as our Title III Intelligence Community opinion requires. 
Access of DOJ IG to Certain Information Protected from Disclosure by Statute

35

24 Op. O.L.C. at 265, 271 (internal quotation marks omitted). As a result, 

we think that OIG agents can obtain Title III information directly from 

Department investigative and law enforcement officers, for use in such 

investigations and reviews, based on the OIG agents’ own “official duties” to conduct such reviews for the benefit of Department leadership—

and not simply from Department leadership based on the leadership 

officials’ duty to supervise Department operations.

Finally, although we have concluded that the “official duties” of Department leadership officials and OIG agents for Title III purposes encompass many of their responsibilities, it does not follow that disclosing 

Title III materials in connection with an OIG audit, investigation, or 

review is “appropriate to the proper performance of the official duties” of 

Department leadership or OIG agents in every instance. Cf. OIG 2014 

Memorandum at 11. In particular, reviews that are either unrelated to, or 

have only an attenuated connection with, the conduct of the Department’s 

law enforcement programs and operations do not, in our view, constitute 

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

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

non-law enforcement activities, such as civil litigation, would be sufficiently related to the Department’s law enforcement programs and operations to justify disclosure under section 2517(1), unless that review were 

aimed at uncovering criminal misconduct. Similarly, we doubt that a 

routine financial audit of a Department component, or a review of a component’s record-keeping practices, would justify disclosure of Title III 

information under section 2517(1) merely because that component engaged in law enforcement activities. Although sound finances and good 

record-keeping may enable a law enforcement component to conduct its 

functions more effectively, such an audit or investigation would not be 

aimed at evaluating the conduct of law enforcement activities themselves, 

or uncovering criminal conduct by Department employees. Construing 

section 2517(1) to permit disclosure of Title III information in connection 

with reviews that are so tangentially related to law enforcement activities 

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

disclosure” among law enforcement and investigative officers that Congress did not intend. Title III Intelligence Community, 24 Op. O.L.C. at 

265; cf. Rural Housing Alliance v. U.S. Dep’t of Agric., 498 F.2d 73, 81 

(D.C. Cir. 1974) (rejecting a construction of the exemption for “investiga-
39 Op. O.L.C. 12 (2015)

36

tory files compiled for enforcement purposes” in the Freedom of Information Act under which that exemption would encompass records from a 

compliance audit that might result in administrative or criminal sanctions, 

because that construction would cause the exemption to “swallow[] up the 

Act”).

In sum, we conclude that section 2517(1) permits Department investigative or law enforcement officers to disclose Title III information to OIG 

agents in connection with many, but not all, OIG investigations and 

reviews. Line-level Department officers may disclose Title III information 

to OIG agents to assist the disclosing officers in preventing, investigating, 

or prosecuting criminal conduct. Any Department officer may disclose 

Title III information to OIG agents to assist OIG in its investigations of 

criminal misconduct by Department employees, contractors, or grantees, 

including administrative misconduct investigations that have a reasonable 

prospect of uncovering criminal violations. And because Department 

leadership officials have a duty to conduct policy and programmatic 

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

OIG has a duty to conduct investigations and reviews that could assist 

Department leadership in carrying out that supervision—any Department 

officer may disclose Title III information to assist OIG in performing such 

investigations and reviews where they concern, or are designed to develop 

recommendations about, the manner in which the Department prevents, 

investigates, or prosecutes crimes. Section 2517(1) does not, however, 

permit OIG agents to obtain Title III information in connection with 

reviews that are either unrelated to, or have only an attenuated relationship with, the conduct of the Department’s law enforcement activities.

B.

We now turn to OIG’s eligibility to obtain grand jury materials. Federal Rule of Criminal Procedure 6(e) “codifies the traditional rule of grand 

jury secrecy,” which is designed to ensure “the proper functioning of our 

grand jury system” by encouraging prospective witnesses to “come 

forward” and “testify fully and frankly,” lessening the “risk that those 

about to be indicted w[ill] flee, or w[ill] try to influence individual grand 

jurors to vote against indictment,” and protecting the innocent from 

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

Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 218–19 (1979)). In 
Access of DOJ IG to Certain Information Protected from Disclosure by Statute

37

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 information to OIG under the exception set forth in Rule 6(e)(3)(A)(i) (“exception (A)(i)”), which permits the disclosure of grand jury information to 

“an attorney for the government for use in performing that attorney’s 

duty.” See OIG 2015 E-mail; OIG 2014 Memorandum at 9–10; OIG 

Supplemental Memorandum at 19–26. In addition, although OIG does not 

rely on the provision, we have considered whether OIG attorneys may 

obtain grand jury information under the exception set forth in Rule 

6(e)(3)(A)(ii) (“exception (A)(ii)”), which authorizes disclosures to “any 

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

connection with OIG reviews that a member of Department leadership 

concludes could assist her in supervising the Department’s criminal law 

enforcement programs and operations.10

 10 OIG also argues that it is entitled to disclosure of some grand jury materials under subsection 6(e)(3)(D) (“exception (D)”), which authorizes an attorney for the 

government to disclose grand jury material “involving foreign intelligence, counterintelligence . . . , or foreign intelligence information” to a range of officials, including 

“federal law enforcement . . . official[s],” in order to “assist the official receiving the 

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

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

a difficult question. In light of our conclusion that exception (A)(ii) permits the 

Department leadership to provide 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)

38

1.

We begin with exception (A)(i). It provides: “Disclosure of a grandjury 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 authorization 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 Memorandum at 20–22 (citing Memorandum for Michael Shaheen, Jr., Counsel, 

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

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

Professional Responsibility (Jan. 6, 1984) (“OPR Memorandum”)). OIG 

contends that because its attorneys, like OPR attorneys, are authorized to 

assist the Attorney General in supervising the Department, they qualify as 

“attorney[s] for the government” who may receive disclosures under 

exception (A)(i). See OIG 2015 E-mail. OIG further argues that its attorneys perform a “duty” closely analogous to OPR’s when they investigate 

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

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

to receive grand jury information in connection with its investigations. 

See OIG Supplemental Memorandum at 22–24.

 

ception (D) here. Rule 6(e)(3) also includes exceptions to Rule 6(e)’s secrecy requirements for (1) certain disclosures relating to banking matters and civil forfeiture authorized by 18 U.S.C. § 3322, see Fed. R. Crim. P. 6(e)(3)(A)(iii); (2) disclosures to 

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

39

The starting point for OIG’s argument is United States v. Sells Engineering. In that case, the Supreme Court considered whether exception 

(A)(i) authorizes the Department’s Civil Division to obtain grand jury 

materials for use in preparing and litigating civil lawsuits. See 463 U.S.

at 420. The Court concluded first that Civil Division attorneys, like “virtually every attorney in the Department of Justice,” were “within the class 

of ‘attorneys for the government’ to whom (A)(i) allows disclosure without a court order.” Id. at 426, 427–28. The Federal Rules of Criminal 

Procedure, the Court explained, define “attorneys for the government” to 

include “‘authorized assistants of the Attorney General’”; and the Attorney General may direct almost “any attorney employed by the Department”—including Civil Division attorneys—“to conduct ‘any kind of 

legal proceeding, civil or criminal, including grand jury proceedings.’” Id.

at 428 (quoting Fed. R. Crim. P. 54(c) (1983); 28 U.S.C. § 515(a)).11 It 

was therefore “immaterial,” in the Court’s view, that “certain attorneys 

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

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

notwithstanding such an assignment, could be detailed or assigned to conduct “criminal grand jury investigation[s],” they counted as “attorneys for 

the government” under the Rules. Id.

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

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

official duties—did not constitute “use in the performance of such attorney’s duty” within the meaning of exception (A)(i).12 In the Court’s view, 

Congress did not intend exception (A)(i) to mean “that any Justice Department attorney is free to rummage through the records of any grand 

jury in the country, simply by right of office,” id., or to authorize access 

to grand jury material to serve “the general and multifarious purposes of 

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

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

6(e) permits government attorneys to obtain otherwise secret grand jury 

 11 Rule 54(c) was transferred to Rule 1(b)(1) when the Rules were amended in 2002.

12 The language of this provision has been modified slightly since Sells. Compare Fed. 

R. Crim. P. 6(e)(3)(A)(i) (1979) (“an attorney for the government for use in the performance of such attorney’s duty”), with Fed. R. Crim. P. 6(e)(3)(A)(i) (2015) (“an attorney 

for the government for use in performing that attorney’s duty”). We believe this change is 

immaterial for purposes of this opinion.
39 Op. O.L.C. 12 (2015)

40

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 attorney’s “need for access,” in contrast, “is ordinarily nothing more than a 

matter of saving [the] time and expense” of civil discovery. Id. at 431. As 

a result, “disclosure for civil use [is] unjustified by the considerations 

supporting prosecutorial access.” Id. Moreover, the Court continued, 

granting attorneys the right to obtain grand jury materials for use in civil 

litigation would “threaten[] to do affirmative mischief.” Id. Such a broad 

right of access might discourage witnesses from testifying before the 

grand jury “for fear that [they] will get [themselves] into trouble in some 

other forum,” “tempt[]” prosecutors to “manipulate the grand jury’s 

powerful investigative tools . . . to elicit evidence for use in a civil case,” 

and “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 prosecutors or Department employees assisting grand jury investigations ha[d] 

engaged in misconduct.” OPR Memorandum at 1. In an unpublished 

memorandum that forms the basis for OIG’s argument here, we advised 

that OPR attorneys could “probably” do so. Id. at 2. We acknowledged 

that “the broad language in Sells, on its face, would appear to prohibit 
Access of DOJ IG to Certain Information Protected from Disclosure by Statute

41

automatic disclosure” to OPR attorneys, because they “would usually be 

using the materials for civil, not criminal, purposes”—i.e., in connection 

with administrative misconduct proceedings—and because “they are not 

the ‘attorneys who conduct the criminal matters to which the materials 

pertain.’” Id. at 4 (quoting Sells, 463 U.S. at 427). Nonetheless, we observed that two “strong arguments [could] be made” in support of OPR’s 

eligibility for disclosure under exception (A)(i). Id.

First, we noted that permitting the automatic disclosure of grand jury 

materials to OPR attorneys would not “raise[] the same type of policy 

concerns that were relied upon by the Sells Court.” Id. at 6. The Civil 

Division attorneys in Sells, we explained, had sought grand jury materials 

“for possible use in civil actions against the targets of the grand jury 

inquiry,” while OPR attorneys sought those materials “to oversee the 

conduct of the government attorneys and investigators assisting the grand 

jury.” Id. at 4–5. Thus, unlike in Sells, “only the conduct of government 

prosecutors,” and not the conduct of the targets of the grand jury inquiry, 

“would be subject to scrutiny.” Id. at 5. As a result, disclosing grand jury 

materials to OPR attorneys would neither “hinder[]” the “willingness of 

witnesses to testify” nor “create an incentive for criminal attorneys to 

abuse the grand jury process in order to pursue civil discovery.” Id.

Second, we believed that disclosures to OPR attorneys would “fall 

generally within the supervisor exception” articulated in Sells. Id. at 7. 

We noted that the Sells Court had recognized that grand jury materials 

could be “disclosed to some persons who may not technically be considered ‘prosecutors,’ such as Department ‘supervisors’ and members of the 

‘prosecution team,’ but who nevertheless are indispensable to an effective criminal law enforcement effort.” Id. at 6 (citation omitted) (quoting 

Sells, 463 U.S. at 429 n.11). We thought this exception “would clearly 

cover certain exchanges [of grand jury information]” that were “analogous” to disclosures to OPR. Id. In particular, we thought there was “no 

question” that prosecutors could “ask ethics counselors to accompany 

them into the grand jury room to give direct counsel when problems 

[arose],” or that prosecutors could “disclose grand jury materials to their 

superiors,” as well as to “ethics attorneys” advising those supervisors, in 

order “to seek their instructions on ethical responsibilities.” Id. at 7. We 

therefore thought it probable, although “not free from doubt,” that, by the 

same logic, Department attorneys could obtain grand jury materials “to 
39 Op. O.L.C. 12 (2015)

42

evaluate in the course of a separate administrative investigation the 

propriety of prior conduct.” Id. We reasoned that, “[t]o perform properly 

their oversight role, supervisors not only must be able to review grand 

jury materials for purposes of instructing subordinates on future activities, but also must be able to evaluate that conduct once a course of 

action has been set.” Id. “A supervisor’s access to grand jury materials,” 

we explained, “should not be terminated artificially once his subordinates 

have acted, but should properly include post mortem review of his staff’s 

activities.” Id. at 7–8. We further noted that OPR attorneys are, by regulation, “delegee[s] of the Attorney General for purposes of overseeing 

and advising with respect to the ethical conduct of department attorneys.” 

Id. at 8 (citing 28 C.F.R. § 0.39a (1983)). Accordingly, we concluded 

that it was appropriate for OPR attorneys to review grand jury materials 

in order to “make recommendations to the Attorney General or other 

supervisors regarding conduct in particular cases.” Id.13

OIG argues that it is eligible to receive grand jury materials under exception (A)(i) for much the same reason as OPR attorneys. OIG asserts 

that its attorneys qualify as “attorney[s] for the government” because they 

are charged with “assisting the [Attorney General] in [her] capacity of 

overseeing the operations of the Department.” OIG 2015 E-mail. And OIG 

argues that its investigations and reviews are comparable to the work 

performed by OPR attorneys, and thus qualify as “dut[ies]” for which OIG 

may receive grand jury information, because OIG, like OPR, performs 

those investigations to “oversee[] and advis[e] with respect to the ethical 

conduct” of Department personnel, and to assist members of the Department’s leadership in “evaluat[ing] . . . the propriety of prior conduct” and 

improving the Department’s law enforcement policies and programs. OPR 

Memorandum at 7–8; see OIG Supplemental Memorandum at 22–24. 

We think that OIG is correct that its duties are similar to OPR’s in important respects; indeed, for the reasons described in Part II.B.2 below, we 

believe that OIG 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 prudential matter” that OPR seek a court order sanctioning disclosure under exception (A)(i) 

in the first few cases in which it reviewed grand jury materials so that it might “obtain 

some clear guidance from the courts on whether the automatic exemption may be employed.” OPR Memorandum at 9.
Access of DOJ IG to Certain Information Protected from Disclosure by Statute

43

exception (A)(ii) in part because of their responsibility to assist Department leadership in supervising the Department’s law enforcement functions. 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 capable of conducting criminal proceedings on behalf of the government. 

Because the IG Act prohibits OIG personnel from engaging in such activities, OIG attorneys cannot qualify for disclosure under exception (A)(i).

The Rules define an “attorney for the government” as:

(A) the Attorney General or an authorized assistant; 

(B) a United States attorney or an authorized assistant; 

(C) when applicable to cases arising under Guam law, the Guam 

Attorney General or other person whom Guam law authorizes to act 

in the matter; and 

(D) any other attorney authorized by law to conduct proceedings 

under these rules as a prosecutor.

Fed. R. Crim. P. 1(b)(1). Most of the categories listed in this definition 

clearly consist of attorneys who are authorized to conduct criminal proceedings on behalf of the government. The Attorney General is authorized 

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

grand jury proceedings,” 28 U.S.C. § 515(a); United States Attorneys are 

charged with “prosecut[ing] . . . all offenses against the United States,” id.

§ 547(1); attorneys for the government acting in Guam criminal cases 

must be “authorize[d] to act in th[os]e matter[s]” under Guam law; and 

“other attorney[s]” must be “authorized by law to conduct proceedings 

under [the Rules] as a prosecutor.” Only the “authorized assistant[s]” to 

the Attorney General and United States Attorneys described in subparagraphs (A) and (B) are not in plain terms limited to attorneys who are 

authorized to represent the government in criminal proceedings. In isolation, the phrase “authorized assistant” might be read to encompass persons who “assist[]” the Attorney General or a United States Attorney in 

ways other than by conducting prosecutions (such as by conducting the 

kinds of investigations of misconduct or law enforcement programs undertaken by OIG). Read in context, however, we think that the term “au-
39 Op. O.L.C. 12 (2015)

44

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 “authorized” 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 authorization to conduct proceedings under the Rules as a prosecutor, or otherwise 

to “act” in a criminal proceeding in an official capacity. As noted above, 

moreover, the other categories of government attorneys listed in Rule 

1(b)(1) are clearly authorized to conduct criminal proceedings. In that 

context, the term “authorized assistant” is best read to refer as well to 

attorneys who are authorized to conduct criminal proceedings. See United States v. Williams, 553 U.S. 285, 294 (2008) (noting that “a word is 

given more precise content by the neighboring words with which it is 

associated”). Additionally, the catchall category set forth in subparagraph

(D) refers to “any other attorney authorized by law to conduct proceedings under these rules as a prosecutor” (emphasis added). That formulation reinforces our conclusion that the preceding categories in the Rule 

consist of attorneys authorized by law to conduct proceedings under the 

rules as a prosecutor. See Paroline v. United States, 134 S. Ct. 1710, 

1721 (2014) (“Here, [18 U.S.C.] § 2259(b)(3)(F) defines a broad, final 

category of ‘other losses suffered . . . as a proximate result of the offense.’ That category is most naturally understood as a summary of the 

type of losses covered—i.e., losses suffered as a proximate result of the 

offense.” (ellipsis in original)).

Second, consistent with this reading, Sells and many lower court decisions have held or assumed that an “authorized assistant” to the Attorney 

General must be an attorney who is, or at least may be, authorized to 
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45

conduct criminal proceedings on the government’s behalf. As noted, Sells

concluded that Civil Division attorneys qualify as “authorized assistant[s] 

of the Attorney General” because the Attorney General may assign them 

to “conduct a criminal grand jury investigation” or other criminal matters. 

Sells, 463 U.S. at 428 (citing 28 U.S.C. §§ 515(a), 518(b)). The Attorney 

General’s authority to reassign attorneys in this way would be pertinent 

only if the Court thought that an “authorized assistant” had to be capable 

of conducting criminal matters on the government’s behalf. Courts of 

appeals have interpreted the phrase even more strictly. The Sixth Circuit, 

for instance, has held that “an ‘authorized assistant of the Attorney General’ is one whose superiors have assigned him or her to work in some 

official capacity on the criminal proceeding.” United States v. Forman, 

71 F.3d 1214, 1220 (6th Cir. 1995) (emphasis omitted). Other courts of 

appeals have reached similar conclusions. See Sells, 463 U.S. at 429 n.12 

(citing courts of appeals that had “held or assumed that” even a Criminal 

Division attorney could qualify as an “‘authorized assistant of the Attorney General’” only if she had actually been “authorized to conduct grand 

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

2007) (“Rule 1(b)(1) defines restrictively the term ‘attorney for the government’ to mean (as relevant here) a federal prosecutor.”); United States 

v. Balistrieri, 779 F.2d 1191, 1207 (7th Cir. 1985) (holding that attorneys 

employed by the Department’s Criminal Division were “authorized assistants of the Attorney General” and thus “attorneys for the government” 

because they “were assigned to assist the United States Attorney for the 

Eastern District of Wisconsin in 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)

46

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 meaning of a statutory term by considering “[t]he broader context provided by 

other sections of the statute”). More than 50 provisions of the Rules use 

the term “attorney for the government,” and all are consistent with this 

understanding. For example, Rule 11(c) provides that “[a]n attorney for 

the government and the defendant’s attorney, or the defendant when 

proceeding pro se, may discuss and reach a plea agreement.” Fed. R. 

Crim. P. 11(c)(1). Rule 12.1 provides that “[a]n attorney for the government may request in writing that the defendant notify an attorney for the 

government of any intended alibi defense,” 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 examination, the court, on motion of a party who did not call the witness, must order an attorney for the government or the defendant and 

the defendant’s attorney to produce . . . any statement of the witness 

that is in their possession and that relates to the subject matter of the 

witness’s testimony.

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 criminal proceedings. See 5 U.S.C. app. §§ 4(a), 6(a), 8E(b) (listing OIG’s 

duties and authorities). Ordinarily, 28 U.S.C. § 515 and related statutes 

permit the Attorney General to delegate to any “officer of the Department 
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47

of Justice,” or to any “attorney specially appointed by the Attorney General,” the authority to conduct criminal proceedings on the government’s 

behalf. 28 U.S.C. § 515(a); see also id. §§ 518(b), 543(a). But section 9(a) 

of the IG Act provides that the Attorney General may transfer “functions, 

powers, [and] duties” to OIG only if those functions are “properly related 

to the functions of [OIG],” transferring them would “further the purposes 

of th[e] Act,” and the functions do not constitute “program operating 

responsibilities.” 5 U.S.C. app. § 9(a), (a)(2); see also Authority to Conduct Regulatory Investigations, 13 Op. O.L.C. at 61 (stating that the IG 

Act prohibits inspectors general from “conduct[ing] investigations constituting an integral part of the programs involved” (internal quotation marks 

omitted)). The duty to conduct grand jury or other criminal proceedings 

on behalf of the United States is unrelated to OIG’s statutory functions of 

investigation, auditing, and oversight. See 5 U.S.C. app. § 4(a). Transferring criminal litigating responsibilities to OIG would undermine its independence—preservation of which is one of the principal concerns of the 

Act—by making its attorneys “responsible official[s]” who “set and 

implement [Department] policy” at the same time as they oversee and 

critique it. Authority to Conduct Regulatory Investigations, 13 Op. O.L.C. 

at 61. And the conduct of criminal litigation is one of the Department’s 

central program operating responsibilities. See 28 U.S.C. §§ 515(a), 516, 

519. The plain language of section 9(a) therefore bars the Attorney General from assigning this responsibility to OIG. 

The IG Act’s legislative history further supports this reading of section 

9(a). When Congress initially enacted the IG Act in 1978, the House 

Report explained that “Inspector[s] General would not conduct prosecutions or decide whether prosecutions should or should not be conducted.” 

H.R. Rep. No. 95-584, at 13 (1977). And when Congress extended the IG 

Act to the Department in 1988, the House Report responded to concerns 

that OIG’s creation would interfere with the Department’s law enforcement functions: “[P]rosecution of suspected violations of Federal law and 

the conduct of litigation are parts of the basic mission or program functions of the Department of Justice,” the Report explained, “[and] the [IG] 

[A]ct does not authorize inspectors general to engage in program functions.” H.R. Rep. No. 100-771, at 9. “[I]n fact,” the Report continued, 

“[section 9(a)] specifically prohibits the assignment of such responsibilities to an inspector general.” Id. at 9 & n.48. The Conference Report 
39 Op. O.L.C. 12 (2015)

48

accompanying the 1988 amendments likewise indicated that OIG personnel would not be permitted to engage in prosecutorial functions, noting 

that “[t]he conferees do not intend that the IG should render judgments on 

the exercise of prosecutorial or other litigative discretion in a particular 

case or controversy.” H.R. Rep. No. 100-1020, at 25 (Conf. Rep.).

Because section 9(a) prohibits the Attorney General from transferring 

to OIG the authority to conduct criminal proceedings, the Attorney 

General may not assign OIG that authority pursuant to 28 U.S.C. § 515 

or similar general delegation statutes. As we have noted, different statutes that regulate the same subject matter must be read in pari materia 

and given full effect to the extent possible. See 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 Department to perform “any function of the Attorney General” (emphases 

added)); 6 U.S.C. § 112(b)(1) (granting similar authority to the Secretary 

of Homeland Security); 20 U.S.C. § 3472 (Secretary of Education); 31 

U.S.C. § 321(b)(2) (Secretary of the Treasury). It is in our view implausible that Congress intended section 9(a) to have such a limited effect, 

particularly in light of the legislative history expressing Congress’s belief 

that this provision would in fact prohibit OIG from engaging in prosecution or litigation. See H.R. Rep. No. 100-1020, at 25 (Conf. Rep.); H.R. 

Rep. No. 100-771, at 9; H.R. Rep. No. 95-584, at 13. We therefore think 

that, given the absence of any indication of congressional intent to the 

contrary, section 9(a)—a specific provision limiting the transfer of functions to inspectors general—is best construed as an exception to general 

delegation provisions, like 28 U.S.C. § 515(a), that broadly authorize the 

assignment of the Department’s functions to any subordinate officer or 

attorney. See infra p. 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

49

(quoting RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct.

2065, 2071–72 (2012))). 

As a result, while the analysis in our OPR memorandum might inform 

the question whether OIG investigations and reviews qualify as “dut[ies]” 

justifying disclosure of grand jury materials under exception (A)(i), OIG 

attorneys are unlike OPR attorneys in at least one critical respect. Like 

“virtually every attorney in the Department of Justice,” OPR attorneys 

may in principle be delegated the Attorney General’s authority to conduct 

criminal proceedings for the Department. Sells, 463 U.S. at 426; see id. at 

428; OPR Memorandum at 8 (noting that OPR attorneys are “delegee[s] 

of the Attorney General”). But OIG attorneys, as we have discussed, are 

barred from being assigned this authority under the IG Act. Consequently, 

although OIG personnel may seek to use grand jury materials in a manner 

that parallels the use discussed in our OPR Memorandum, they do not fall 

within the category of persons—attorneys for the government—who may 

obtain disclosure under exception (A)(i).14

 

14 OIG contends that multiple district court decisions have determined that OIG attorneys qualify for disclosure under exception (A)(i), and questions whether this Office may 

render a legal opinion disagreeing with those decisions. See OIG 2014 Memorandum at 

15 & att. The decisions OIG cites are one-page memorandum orders, issued by a single 

district judge, that authorized disclosure to OIG attorneys under exception (A)(i). The 

relevant parts of the orders state, in their entirety, that because a particular OIG investigation of “alleged misconduct before the grand jury” was “supervisory in nature with 

respect to ethical conduct of Department employees,” “disclosure of grand jury materials 

to the OIG constitutes disclosure to ‘an attorney for the government for use in the performance of such attorney’s duty’” under exception (A)(i). In re Matters Occurring Before 

the Grand Jury Impaneled July 16, 1996, Misc. No. 39 (W.D. Okla. June 4, 1998) (Russell, C.J.) (order) (quoting Fed. R. Crim. P. 6(e)(3)(A)(i)); id. (Dec. 8, 1998) (same); see 

id. (Nov. 15, 1999) (“Because in taking such actions, these Department personnel would 

be engaged in a supervisory function, disclosure of grand jury materials to them constitutes disclosure to ‘an attorney for the government for use in the performance of such 

attorney’s duty.’”). Neither these orders, nor the underlying Department filings that 

sought disclosure, discussed or analyzed the meaning of the terms “attorney for the 

government” or “authorized assistant.” As the Supreme Court has explained, a “‘decision 

of a federal district court judge is not binding precedent in either a different judicial 

district, the same judicial district, or even upon the same judge in a different case.’” 

Camreta v. Greene, 131 S. Ct. 2020, 2033 n.7 (2011) (quoting 18 J. Moore et al., Moore’s 

Federal Practice § 134.02[1][d] (3d ed. 2011)). Nor is a district court decision binding on 

the Executive Branch in activities unrelated to the case in which the court’s decision was 

rendered. See In re Exec. Office of the President, 215 F.3d 20, 24–25 (D.C. Cir. 2000) 
39 Op. O.L.C. 12 (2015)

50

2.

Because exception (A)(i) does not authorize the disclosure of grand jury materials to OIG, we have also considered whether a separate exception would authorize that disclosure. Exception (A)(ii) provides:

Disclosure of a grand-jury matter—other than the grand jury’s deliberations or any grand juror’s vote—may be made to . . . any government personnel—including those of a state, state subdivision, Indian 

tribe, or foreign government—that an attorney for the government 

considers necessary to assist in performing that attorney’s duty to 

enforce federal criminal law.

Fed. R. Crim. P. 6(e)(3)(A)(ii). Like disclosure under exception (A)(i), 

disclosure under this exception may be made without prior judicial approval. However, unlike 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 information 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 Antideficiency Act to a Violation of a Condition or Internal Cap Within an Appropriation, 25 Op. 

O.L.C. 33, 52 (2001) (disagreeing with the “unexplained decision” of a district court that 

appeared to interpret the Antideficiency Act in a manner “inconsistent with the Antideficiency Act’s legislative history and evolution and with the rest of the (limited) caselaw”); 

Authority of the President to Remove the Staff Director of the Civil Rights Commission 

and Appoint an Acting Staff Director, 25 Op. O.L.C. 103, 105 (2001) (disagreeing with a 

district court decision subsequently vacated as moot). For the reasons offered above, we 

respectfully disagree with the district court’s conclusion that OIG attorneys may qualify 

for disclosure under exception (A)(i) solely because they perform supervisory functions.
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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 “handwriting experts”); Fed R. Crim. P. 6 advisory committee’s note (1977 

amendments) (“The phrase ‘other government personnel’ includes, but is 

not limited to, employees of administrative agencies and government 

departments.”). OIG employees are likewise “government personnel” who 

may receive disclosures under exception (A)(ii).

In addition, a wide variety of Department attorneys qualify as “attorney[s] for the government” who may authorize disclosures under this 

exception. As we have discussed, that term includes the Attorney General, 

United States Attorneys, their “authorized assistant[s],” and “any other 

 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)

52

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 “consider[]” an OIG official “necessary to assist in performing that attorney’s 

duty to enforce federal criminal law.” Fed. R. Crim. P. 6(e)(3)(A)(ii). 

This Office has previously noted several relatively straightforward ways 

in which this language limits the permissible scope of disclosures. To 

begin with, consistent with the plain language of this provision, a Department attorney may make a disclosure only for the purpose of obtaining assistance in performing her duty to enforce “federal criminal law.” 

Id. (emphasis added). Thus, an attorney may not authorize disclosures 

under exception (A)(ii) to assist in the performance of her civil or administrative duties, or to senior White House policymakers for purposes of 

“general policymaking.” Disclosure to the President, 17 Op. O.L.C. at 

61–62, 64; see Sells, 463 U.S. at 427. We have also observed that, because disclosures under exception (A)(ii) may be made only to a person 

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 determination made by an attorney.” Memorandum for Philip B. Heymann, 

Assistant Attorney General, Criminal Division, and William P. Tyson, 

Acting Director, Executive Office for United States Attorneys, from John 

M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: 

Computerized Preservation and Use of Grand Jury Material at 4 (May 2, 

1980). Hence, while an attorney has “broad leeway” in judging what disclosures are proper, Disclosure to the President, 17 Op. O.L.C. at 62 

(citing S. Rep. No. 95-354, at 8 (1977)), she must always exercise her 

independent judgment before authorizing the disclosure of grand jury 

information to a particular recipient. Thus, for example, we concluded 
Access of DOJ IG to Certain Information Protected from Disclosure by Statute

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that an attorney could not place grand jury materials on a computerized 

database that law enforcement officers could use for purposes of which 

the attorney was unaware. See Memorandum for Roger B. Clegg, Acting 

Assistant Attorney General, Office of Legal Policy, and John Mintz, 

Assistant Director and Legal Counsel, FBI, from Robert B. Shanks, 

Deputy Assistant Attorney General, Office of Legal Counsel, Re: Authority of FBI Agents to Exchange Grand Jury Material Pursuant to Rule 

6(e)(3)(A)(ii) of the Federal Rules of Criminal Procedure (Feb. 14, 1984) 

(“Shanks Memorandum”).

Within these limitations, we believe exception (A)(ii) permits Department attorneys to authorize the disclosure of grand jury information to 

OIG both to assist with individual law enforcement actions and, where the 

disclosures are authorized by members of the Department leadership, to 

assist in the direction and supervision of the Department’s law enforcement programs and operations. First, because an attorney’s “duty to 

enforce federal criminal law” plainly includes his duty to prosecute criminal offenses, exception (A)(ii) permits Department attorneys to authorize 

disclosure of grand jury materials to OIG in connection with OIG investigations and reviews those attorneys believe could assist them with ongoing or potential prosecutions. Exception (A)(ii) was drafted specifically in 

order to enable prosecutors to make disclosures to investigators who could 

develop the basis for and aid in prosecutions. See Sells, 463 U.S. at 436

(stating that exception (A)(ii) was enacted “because Justice Department

attorneys found that they often need active assistance from . . . investigators from the [FBI], IRS, and other law enforcement agencies”); Fed. R. 

Crim. P. 6 advisory committee’s note (1977 enactment) (stating that 

“[o]ften the prosecutors need the assistance of the agents in evaluating 

evidence” or conducting “further investigation”). As we have discussed, 

OIG agents have a number of investigative duties, and are required to 

“report expeditiously to the Attorney General whenever the Inspector 

General has reasonable grounds to believe there has been a violation of 

Federal criminal law.” 5 U.S.C. app. § 4(d); see Investigative Officers, 14 

Op. O.L.C. at 109. Hence, a Department attorney may authorize disclosure of information to OIG in connection with an OIG investigation that 

the attorney concludes will be likely to aid in an ongoing or potential 

prosecution in which the attorney is involved.
39 Op. O.L.C. 12 (2015)

54

Second, we think that exception (A)(ii) permits a Department leadership official to authorize disclosure of grand jury information to OIG in 

connection with OIG investigations or reviews that the official believes 

could assist her in carrying out her duty to conduct programmatic or 

policy supervision of the Department’s criminal law enforcement activities. As we discussed in analyzing the scope of permissible disclosure 

under Title III, programmatic and policy supervision can affect the prevention, investigation, or prosecution of criminal conduct as directly as 

individual trial decisions, see Van de Kamp, 555 U.S. at 346, and constitute a central means by which the Attorney General and her assistants 

direct and control the Department’s law enforcement and prosecutorial 

functions. See supra pp. 29–30. Such activities are thus part of Department leadership’s “duty to enforce federal criminal law” under the plain 

language of that phrase. Further, it would be reasonable for a member of 

Department leadership to “consider[]” many OIG reviews “necessary to 

assist” her in performing this duty. Fed. R. Crim. P. 6(e)(3)(A)(ii). As we 

also noted in the Title III context, Congress established OIG to “keep[] 

the head of the [Department] . . . informed about problems” in the Department and to recommend “corrective action,” 5 U.S.C. app. § 2(3), and 

OIG’s reviews have historically provided the Department’s leadership 

with “critical advice, information, and insights in connection with the 

exercise of their supervisory responsibilities over the Department’s criminal law enforcement programs, policies, and practices,” Yates Letter at 3. 

It would therefore generally be reasonable for a member of Department 

leadership to conclude that an OIG investigation or review that concerns, 

or is designed to develop recommendations about, the manner in which 

the Department enforces federal criminal law is “necessary to assist” in 

the disclosing official’s supervision of that function on a programmatic or 

policy basis. 

We acknowledge that certain language in Sells might be read to suggest a narrower scope of appropriate disclosures. In particular, various 

statements in the opinion could be read to suggest that an attorney’s 

“duty” under exception (A)(i) includes only her duty to conduct or supervise a particular pending prosecution. See, e.g., Sells, 463 U.S. at 427 

(“We hold that (A)(i) disclosure is limited to use by those attorneys who 

conduct the criminal matters to which the materials pertain.” (emphasis 

added)); id. at 429 n.11 (stating that “every attorney (including a super-
Access of DOJ IG to Certain Information Protected from Disclosure by Statute

55

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

it involves supervision of law enforcement agents in addition to prosecutors; and second, it concerns criminal matters unrelated to the grand 

jury investigation in which the information to be disclosed was developed. It might also be argued that disclosure to OIG is different from the 

disclosures contemplated in Sells because OIG will frequently use grand 

jury information to investigate past conduct in completed law enforcement operations, rather than to assist in ongoing prosecutions. 

In our view, however, notwithstanding these distinctions, Sells and subsequent opinions support reading exception (A)(ii) to permit disclosures 

to OIG in connection with Department leadership’s duties of programmatic and policy supervision. With respect to the first arguable distinction—

between supervision of law enforcement officers and supervision of 

prosecutors—Sells expressly recognized that a prosecutor’s authority to 

“command[]” law enforcement officers is a critical means by which she 

carries out her prosecutorial duties and renders assistance to the grand 

jury. Sells, 463 U.S. at 430 (stating that “a modern grand jury would be 

much less effective without the assistance of the prosecutor’s office and 

the investigative resources it commands”); id. at 430 n.13 (“Not only 

would the prosecutor ordinarily draw up and supervise the execution of 

subpoenas, but also he commands the investigative forces that might be 
39 Op. O.L.C. 12 (2015)

56

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

duty to supervise prosecutions includes a duty to supervise law enforcement officers in conduct that assists with prosecutions.

We likewise believe that the second arguably distinctive characteristic 

of programmatic and policy supervision—that it concerns criminal matters unrelated to the grand jury investigation in which the materials being 

sought were originally developed—is consistent with Sells. Lower courts, 

treatises, and this Office have repeatedly interpreted Sells to permit disclosure in connection with any “criminal matters to which [grand jury] 

materials pertain,” id. at 427, and not merely those matters in which the 

information was developed. See, e.g., Impounded, 277 F.3d 407, 413 (3d 

Cir. 2002) (holding that the disclosure of grand jury materials to a federal 

prosecutor in another district was permissible under exception (A)(i)); 

1 Sara Sun Beale et al., Grand Jury Law and Practice § 5:8, at 5-58 (2d 

ed. 2014) (“Beale”) (stating that an attorney may make a disclosure under 

exception (A)(i) “in connection with a separate prosecution”); Shanks 

Memorandum at 2 (concluding that exception (A)(ii) authorizes disclosure 

to FBI agents assisting in “a specific criminal investigation” unrelated to 

the initial grand jury investigation); cf. Fed. R. Crim. P. 6(e)(3)(C) (permitting the automatic disclosure of grand jury materials to “another federal grand jury”). This Office has also previously concluded that the disclosure authorization in exception (A)(ii) extends to general supervision of 

law enforcement activities as well as to specific prosecutions: In our Rule 

6(e) Intelligence Community opinion, for example, we advised that the 

Attorney General may make disclosures to assist “a broad criminal law 

enforcement program for which [she] is responsible,” 21 Op. O.L.C. at 

171; and in our Disclosure to the President opinion, we cited legislative 

history supporting the view that “Congress intended federal prosecutors to 

have broad leeway in deciding what government personnel should have 

access to grand jury materials for purposes of facilitating enforcement 

functions,” 17 Op. O.L.C. at 62. See also 1 Beale § 5:8, at 5-58 (stating 

that attorneys may disclose materials “in connection with the evaluation 

or planning of broad prosecutorial policies”). 
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Consistent with these authorities, we do not think the language in Sells 

referring to specific “prosecutions,” e.g., 463 U.S. at 429 n.11, should be 

read to preclude disclosures that an attorney believes could aid the general 

supervision of the Department’s law enforcement programs and activities. 

To begin with, the Court in Sells addressed the permissibility of disclosure only in connection with civil litigation, see id. at 420; it did not 

discuss, and had no occasion to address, the permissible scope of disclosure in connection with programmatic supervision of criminal law enforcement. Moreover, other language in the opinion is consistent with 

permitting disclosure for broad supervisory purposes. The Court expressly 

noted that exception (A)(ii) gives prosecutors a “free hand concerning use 

of grand jury materials” in connection with criminal matters. Id. at 441–

42; see also Disclosure to the President, 17 Op. O.L.C. at 62 (noting the 

“broad leeway” possessed by attorneys under exception (A)(ii)). Further, 

permitting disclosure for broad supervisory purposes would not raise the 

policy concerns that led the Sells Court to deem disclosure for civil purposes unlawful: because such disclosure would not be used in connection 

with investigating the subjects of or witnesses in the underlying grand 

jury investigations, it would not discourage witnesses from testifying, 

create incentives for prosecutors to misuse the grand jury, or subvert 

limits on civil discovery. See Sells, 463 U.S. at 432–34; OPR Memorandum at 4–6 (similarly distinguishing Sells on this basis). In addition, 

prohibiting such disclosure would have the same kinds of disruptive 

effects we identified in connection with Title III, by preventing Department leadership from obtaining (or disclosing) Rule 6(e) information for 

the purpose of conducting policy or programmatic supervision of grand 

jury proceedings or other law enforcement programs that used grand jury 

information. For all these reasons, we doubt that if the Supreme Court had 

squarely addressed the question, it would have concluded that exception 

(A)(ii) does not permit the Attorney General and her assistants to obtain 

or disclose grand jury information in order to set policies and develop 

guidance for law enforcement purposes.

Finally, while it is true that OIG officials would frequently use grand 

jury information to evaluate completed law enforcement operations 

rather than to assist in ongoing operations or prosecutions, “supervisors

. . . must be able to evaluate [past] conduct once a course of action has 

been set” to “perform properly their oversight role.” OPR Memorandum 
39 Op. O.L.C. 12 (2015)

58

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

of the conduct of a prosecution is necessary to evaluate and, if appropriate, take administrative action with respect to that conduct. Id. at 8. OIG 

investigations and reviews of the past conduct of Department criminal 

law enforcement programs likewise help Department leadership evaluate 

that conduct and take appropriate corrective action if necessary. We 

therefore believe that, notwithstanding the apparently narrow language in 

Sells, Department leadership’s “duty to enforce federal criminal law” 

includes its duties to supervise Department law enforcement efforts on a 

programmatic and policy basis, and that it would generally be reasonable 

for Department leadership to “consider[]” it “necessary to assist” it in 

performing these duties to authorize the disclosure of grand jury information to OIG in connection with investigations or reviews that concern, 

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

the Department carries out its criminal law enforcement functions. Fed. 

R. Crim. P. 6(e)(3)(A)(ii). 

As in the Title III context, however, we do not think that exception 

(A)(ii) would permit Department attorneys to disclose grand jury material 

to OIG in relation to all OIG audits, investigations, and reviews. In particular, we doubt that a Department leadership official may authorize 

disclosures in connection with investigations that are only tangentially 

related to programmatic and policy supervision of law enforcement activities, such as routine financial audits of components that happen to engage 

in law enforcement functions. Similarly, especially in light of Sells, we do 

not believe a Department attorney may authorize disclosure of grand jury 

information to OIG in connection with OIG investigations or reviews that 

primarily relate to civil enforcement or recovery efforts (such as investigations designed to assist the Department in recovering funds through a 

False Claims Act suit), rather than criminal prosecutions.

C.

The third and final statutory prohibition on disclosure we consider is 

section 626 of FCRA. Congress enacted FCRA to ensure “fair and accurate credit reporting,” which it deemed “essential to the continued functioning of the banking system.” 15 U.S.C. § 1681(a)(1). FCRA comprehensively regulates the “confidentiality, accuracy, relevancy, and proper 

utilization” of information held by consumer credit reporting agencies. Id.
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§ 1681(b). Among other things, it restricts the circumstances in which 

consumer reporting agencies may disclose consumer credit reports, id.

§ 1681b; specifies what information may be contained in those reports, id.

§ 1681c; and imposes civil, administrative, and sometimes criminal liability for failure to comply with its requirements, id. §§ 1681n–1681s. 

In 1996, Congress amended FCRA to add a new basis for disclosure of 

consumer credit information. See Intelligence Authorization Act 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 information obtained pursuant to this section outside of the Federal Bureau of Investigation, except to other Federal agencies as may be 

necessary for the approval or conduct of a foreign counterintelligence investigation, or, where the information concerns a person 

subject to the Uniform Code of Military Justice, to appropriate investigative authorities within the military department concerned as 

may be necessary for the conduct of a joint foreign counterintelligence investigation.

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)

60

OIG argues that under the terms of section 626(f), it may obtain unrestricted access to consumer information that the FBI has obtained under 

section 626. In OIG’s view, it is exempt from the limitations on disclosure contained in section 626(f) because it is part of the same agency as 

the FBI. See OIG 2014 Memorandum at 12–13; OIG FCRA Memorandum at 3. We consider this argument below. In addition, although OIG 

does not make the argument, we consider whether OIG may obtain section 626 information under the first exception set forth in section 626(f), 

which permits the FBI to make disclosures “to other Federal agencies as 

may be necessary for the approval or conduct of a foreign counterintelligence investigation.” 15 U.S.C. § 1681u(f). As we will explain, we 

conclude that although OIG is subject to section 626(f)’s prohibition on 

disclosure, it may nonetheless obtain covered information under that 

provision’s first exception in certain circumstances.

1.

OIG argues that it is permitted to obtain section 626 information from 

the FBI in connection with any of its audits, investigations, or reviews. It 

contends that, while section 626(f) bars the FBI from disclosing information obtained pursuant to an NSL to “other Federal agencies,” except 

“as may be necessary for the approval or conduct of a foreign counterintelligence investigation,” this bar does not apply to OIG because both OIG 

and the FBI are components of the Department. See OIG FCRA Memorandum at 3. OIG argues that this reading of section 626(f) is supported 

by the text of that provision’s first exception, by implication from a statute enacted subsequent to section 626, and by the general purposes of 

OIG reviews. See OIG 2014 Memorandum at 12–14; OIG FCRA Memorandum at 2–4.

OIG’s interpretation is difficult to square with the plain language of the 

statute. Section 626(f) states that the FBI “may not disseminate information obtained pursuant to this section outside of the Federal Bureau of

Investigation” except in two specific circumstances. On its face, this 

provision unambiguously bars the FBI from disclosing information outside of the FBI, unless an exception applies. OIG is outside of the FBI, 

and so falls within this prohibition on disclosure. OIG’s argument—that it 

is exempt from the prohibition because it is a Department component—
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would require reading “Federal Bureau of Investigation” to mean “Department of Justice.” But these two entities are not equivalent, and Congress chose to refer to the former rather than the latter in section 626(f). 

OIG disputes this straightforward reading of section 626(f) by pointing 

to the provision’s first exception, which permits the FBI to disclose section 626 information to “other Federal agencies.” OIG reasons that because other components of the Department are part of the same agency as 

the FBI, and “not an ‘other Federal agency’” relative to the FBI, they 

cannot qualify for disclosure under this exception. OIG FCRA Memorandum at 2. As a consequence, this argument continues, reading section 

626(f) as its plain text indicates would lead to the unlikely result that the 

FBI could never disclose section 626 information to Department officials 

outside the FBI—a result that, as OIG explains, would be inconsistent 

with the Department’s longstanding practice of making section 626 information available to the National Security Division (“NSD”) for purposes of overseeing the FBI’s operations. See id.

We agree that it is highly unlikely that Congress would have barred the 

FBI from disclosing section 626 information within the Department, 

particularly while permitting such disclosure to agencies outside the 

Department. However, we disagree that the statute’s reference to “other 

Federal agencies” compels such a result. Although the term “agency” is 

sometimes used to refer to the Department of Justice as a whole, it is also 

used to refer to components within the Department. Compare 28 U.S.C. 

§ 527 (distinguishing between “the Department of Justice” and “other 

Federal agencies”), and 5 U.S.C. § 5721(1)(A) (“[f]or the purpose of this 

subchapter . . . ‘agency’ means . . . an Executive agency”), with 28 U.S.C.

§ 509 (vesting “all functions of agencies and employees of the Department of Justice” in the Attorney General), and 5 U.S.C. § 551 (“For the 

purpose of this subchapter . . . ‘agency’ means each authority of the Government of the United States, whether or not it is within or subject to 

review by another agency.”). In our view, the term “agency” is best read 

in the latter sense in section 626(f). Notably, the statute does not simply 

state that the FBI “may not disseminate [section 626 information], except 

to other Federal agencies” for certain purposes; it says the FBI “may not 

disseminate [section 626 information] outside 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)

62

the [FBI]” strongly suggests that “other Federal agencies” refers to any 

federal entity other than the Federal Bureau of Investigation, including 

other components of the Department. 

This conclusion is reinforced by the significant role that other Department components play in “the approval or conduct of [the FBI’s] 

foreign counterintelligence investigation[s].” Id. For decades, the Attorney General has been authorized to “supervis[e]” and “establish” “regulations” concerning the FBI’s counterintelligence activities. Exec. Order 

No. 12333, § 1.14, 46 Fed. Reg. 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 Foreign Counterintelligence Investigations Conducted by the FBI (Mar. 6, 

2002); 28 C.F.R. § 0.72 (assigning counterintelligence oversight functions to NSD). By permitting disclosure for the “approval” of counterintelligence investigations, Congress presumably intended to permit the 

FBI to make disclosures consistent with this longstanding grant of supervisory authority. Indeed, a prior version of the bill would have made the 

first exception applicable exclusively to disclosures within the Department of Justice. See Comprehensive Terrorism Prevention Act of 1995, 

S. 735, 104th Cong. § 502(a) (1995) (“The [FBI] may not disseminate 

information obtained pursuant to this section outside of the [FBI], except

. . . to the Department of Justice, as may be necessary for the approval or 

conduct of a foreign counterintelligence operation.”). It is unlikely that, 

in later broadening the scope of the exception to allow disclosures to 

“other Federal agencies,” Congress intended to exclude disclosures to the 

agency that was previously the exception’s sole beneficiary. 

OIG also argues that its view that section 626(f) permits disclosure to 

OIG finds support in a statutory provision Congress enacted after section 

626: section 119 of the USA PATRIOT Improvement and Reauthorization 

Act of 2005, Pub. L. No. 109-177, 120 Stat. 192, 219 (“Patriot Reauthorization Act”). As OIG points out, section 119 of the Patriot Reauthorization Act directed OIG to “perform an audit of the effectiveness and use, 

including any improper or illegal use, of national security letters issued by 
Access of DOJ IG to Certain Information Protected from Disclosure by Statute

63

the Department of Justice,” including NSLs issued pursuant to section 

626. Id. § 119(a), (g)(4). OIG argues that “[f]ulfilling the mandates of the 

Patriot Reauthorization Act . . . clearly required [it] to have access to the 

‘raw data’ the Department obtained through [NSLs], including Section 

[626] credit report information.” OIG 2014 Memorandum at 13. And 

because that Act “contained no provision granting the OIG access to 

Section [626] information,” OIG reasons that “in 2005 Congress believed 

the OIG already had access to FCRA information in order to audit such 

dissemination.” Id. (emphasis added). But this provision suggests at most 

that the Congress that enacted the Patriot Reauthorization Act believed 

OIG would have access to section 626 information as necessary for OIG 

to evaluate the legality and effectiveness of the Department’s use of 

NSLs. And for reasons we explain below, we believe OIG is eligible to 

receive section 626 information for that purpose under section 626(f)’s 

first exception. See infra Part II.C.2. The Patriot Reauthorization Act thus 

does not provide a basis for reading section 626(f), contrary to its plain 

text, to grant OIG unfettered access to such information. 

Finally, OIG contends that the limits on dissemination contained in 

section 626 were intended to protect consumer privacy, and that it 

would undermine rather than further that purpose to prohibit OIG from 

obtaining the information necessary to determine whether the FBI is 

abiding by section 626’s requirements. See OIG 2014 Memorandum at 

12–13; OIG FCRA Memorandum at 3. We agree that, in enacting section 626, Congress sought to build “safeguards . . . into the legislation” 

that would “minimiz[e]” the “threat to privacy” posed by the FBI’s 

ability to use NSLs. H.R. Rep. No. 104-427, at 36 (1995); see also 15 

U.S.C. § 1681(a)(4) (finding “a need to insure that consumer reporting 

agencies exercise their grave responsibilities with . . . a respect for the 

consumer’s right to privacy”). But it is entirely consistent with Congress’s purpose of protecting consumer privacy to prevent broad disclosure of consumer information even within the Department of Justice. 

Nor would a restriction on disclosure outside the FBI necessarily preclude all oversight of the use of section 626 authority, insofar as the 

FBI’s internal audit department or Office of Professional Responsibility 

could conduct reviews of the use of that authority. Further, as we explain below, we believe OIG may obtain section 626 information in 

order to monitor the FBI’s compliance with FCRA’s disclosure re-
39 Op. O.L.C. 12 (2015)

64

strictions pursuant to section 626(f)’s first exception. The statute’s purpose thus does not require OIG to have blanket access to section 626

information. 

2.

We now consider whether OIG is eligible to receive disclosures under 

section 626(f)’s first exception, which authorizes the FBI to disclose 

information obtained pursuant to an NSL “to other Federal agencies as 

may be necessary for the approval or conduct of a foreign counterintelligence investigation.” 15 U.S.C. § 1681u(f). As we have discussed, components of the Department outside the FBI, including OIG, are “other 

Federal agencies” within the meaning of this provision. See supra pp. 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 circumstances. First, and most straightforwardly, it authorizes disclosures as 

necessary to facilitate approval of a particular foreign counterintelligence 

investigation, or to obtain assistance in conducting such an investigation.16 For example, the first exception would allow the FBI to disclose 

information to Department attorneys in order to enable those attorneys to 

file an application for electronic surveillance pursuant to Title III or the 

Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1801 et seq., 

or to advise the FBI on the legality of a method the FBI proposes to use in 

an investigation. In addition, the first exception would allow the FBI to 

disclose information to Department supervisors to enable them to monitor 

a particular foreign counterintelligence operation, to ensure that it was 

being conducted lawfully and in conformance with Department guidelines. 

Second, we believe that section 626(f)’s first exception permits disclosure of information as necessary for the programmatic and policy supervision of foreign counterintelligence investigations generally—that is, to 

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

 

16 As in the case of Rule 6(e)(3)(A)(ii), we presume that Congress used the word “necessary” to mean useful or conducive rather than required. See supra note 15.
Access of DOJ IG to Certain Information Protected from Disclosure by Statute

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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 legislative history—apart from the use of the phrase “a[n] . . . investigation” 

itself—that Congress intended to permit disclosures in connection with 

only one investigation at a time. Nor, of particular relevance here, can we 

find any indication that Congress intended to prevent Department leadership officials from obtaining information protected by section 626(f) for 

use in supervising the FBI’s conduct of foreign counterintelligence investigations. In a manner similar to that discussed in the Title III and Rule 

6(e) contexts, Department leadership would be severely constrained in its 

ability to supervise the FBI’s conduct of such investigations on a programmatic or policy basis, and to supervise the FBI’s use of NSLs issued 

pursuant to section 626 on a similar basis, if it could not obtain section 

626 information for that purpose. Indeed, under guidance issued by Department leadership, the FBI routinely provides section 626 information to 

other Department components to assist in such supervision. See, e.g., AG 

Guidelines at 10–11 (authorizing disclosure of section 626 information to 

NSD for supervisory purposes). And, as noted above, Congress likewise 

assumed in the Patriot Reauthorization Act that OIG would be able to 

obtain the “raw data” needed to conduct a review of the FBI’s use of 

NSLs. See supra p. 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)

66

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 Regulatory Investigations, 13 Op. O.L.C. at 61–62. However, there might be 

rare circumstances in which a foreign counterintelligence investigation 

was intertwined with an investigation of internal misconduct. In such

circumstances, it is conceivable that OIG could obtain section 626 information to facilitate the conduct of that investigation. 

In other circumstances, OIG could obtain information under the broader 

supervisory rationale. As we have noted elsewhere, OIG plays a central 

role in helping Department leadership supervise the Department’s law 

enforcement activities through both reviews of misconduct and programmatic reviews intended to help improve law enforcement operations in the 

future. See supra pp. 32–35, 54. In the context of section 626, it is reasonable 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 mandated review of the FBI’s use of NSLs—are “necessary for the approval 

or conduct of ” those investigations within the meaning of section 626(f). 

An OIG review of foreign counterintelligence investigations could, for 

example, lead to changes in the process for authorizing such investigations, or help leadership officials ensure that investigations are carried out 

lawfully. Indeed, OIG’s review of the FBI’s use of NSLs illustrates how 

such a process might work. After that review uncovered serious problems 

with the FBI’s use of NSLs, the Department implemented a number of 

measures aimed at ensuring greater supervision and control of the FBI’s 

activities. See Fact Sheet: Department of Justice Corrective Actions on 

the FBI’s Use of National Security Letters (Mar. 20, 2007), http://www.

justice.gov/archive/opa/pr/2007/March/07_nsd_168.html (“Corrective Actions on the FBI’s Use of NSLs”). These measures included retrospective 

and continuing audits of the FBI’s NSL usage designed to identify potential legal violations, as well as measures intended to allow the Attorney 

General to promptly address needed changes in policy, training, and 

oversight. Id. Because investigations and reviews of this kind concern, or 

are designed to develop recommendations about, leadership decisions 
Access of DOJ IG to Certain Information Protected from Disclosure by Statute

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regarding the approval or conduct of foreign counterintelligence investigations, they are in our view “necessary to the approval or conduct” of 

such investigations as that phrase is used in section 626(f).

This reading of section 626(f) is further supported by the FBI’s practice 

of providing information obtained through NSLs to NSD to facilitate 

NSD’s supervision of the FBI’s compliance with applicable laws and 

guidelines in matters relating to national security and foreign intelligence. 

See AG Guidelines at 10–11. OIG correctly notes that NSD was given 

responsibility to oversee the FBI’s activities following OIG’s critical 

review of the FBI’s use of NSLs, and that NSD’s reviews are patterned 

after OIG reviews. See NSD E-mail; see also OIG FCRA Memorandum;

Corrective Actions on the FBI’s Use of NSLs. It would be incongruous to 

conclude that the FBI may disseminate section 626 information to NSD 

because its reviews are “necessary for the approval or conduct of a foreign counterintelligence investigation,” but that the FBI is barred from 

providing the same information to OIG in connection with reviews that 

share a similar purpose and methodology, and likewise assist the Department’s leadership in its supervisory functions. For reasons similar to those 

set forth in our discussion of Title III, see supra p. 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 comparable reviews performed by NSD. 

Accordingly, we conclude that the FBI may disseminate section 626

information to OIG in connection with investigations and reviews that 

concern, or are designed to develop recommendations about, leadership 

decisions regarding the approval or conduct of foreign counterintelligence 

investigations. This conclusion, however, is subject to the same limitation 

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

reviews that have only an attenuated connection to Department leadership’s supervisory responsibilities relating to foreign counterintelligence 

investigations, such as routine financial audits of the FBI entities that 

carry out such investigations, would likely not qualify for disclosure 

under section 626. See supra pp. 35–36, 58 (discussing similar limits in 

the context of Title III and Rule 6(e) disclosures).
39 Op. O.L.C. 12 (2015)

68

* * * * *

In sum, Title III, Rule 6(e), and FCRA permit the disclosure of covered 

information in connection with many of OIG’s investigations and reviews. 

Title III permits a Department investigative or law enforcement officer to 

disclose to OIG the contents of intercepted communications to the extent 

that disclosure could aid either the disclosing official or OIG in the performance of their respective duties related to law enforcement—including 

duties related to Department leadership’s programmatic or policy supervision of the Department’s law enforcement activities. Rule 6(e), similarly, 

permits the disclosure of grand jury materials to OIG if an attorney for the 

government determines that such disclosure could assist her in the performance of her criminal law enforcement duties, including any supervisory law enforcement duties that attorney may have. And FCRA permits 

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

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

foreign counterintelligence investigations, including in the supervision of 

such investigations on a programmatic or policy basis.17

These statutes do not, however, authorize Department officials to disclose protected information to OIG in connection with all of OIG’s activities. As we have noted, Title III and Rule 6(e) do not permit disclosures 

that have either an attenuated or no connection with the conduct of the 

Department’s criminal law enforcement programs and operations, and 

section 626 of FCRA does not permit disclosures that have either an 

attenuated or no connection with the approval or conduct of foreign

counterintelligence investigations. Thus, for example, Title III, Rule 6(e), 

and section 626 do not permit OIG to obtain covered information to assist 

in investigations of the Department’s civil activities that are only tangentially related to criminal law enforcement or foreign counterintelligence 

efforts, or to conduct routine financial audits of Department components. 

Even when these statutes permit disclosures to OIG, moreover, they 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

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pose certain procedural preconditions on those disclosures. Disclosures 

under Title III require an assessment of whether a particular OIG investigation is appropriate to the proper performance of an official duty related 

to law enforcement. Disclosures under Rule 6(e) require an independent 

judgment, made by an attorney for the government, that OIG assistance is 

necessary to perform that attorney’s duty to enforce criminal law, and 

further require compliance with certain additional procedural obligations. 

And disclosures under section 626 of FCRA require an assessment of 

whether an OIG investigation is “necessary for the approval or conduct” 

of foreign counterintelligence investigations.

If section 6(a)(1) of the IG Act displaced the limitations on disclosure 

in these statutes, it would—unlike these statutory exceptions—permit 

unconstrained disclosure of all protected information to OIG. Thus, OIG 

could receive information protected by Title III, Rule 6(e), and section 

626 in connection with its investigations of the Department’s civil activities, its routine financial or administrative audits, and any other of its 

authorized activities. Moreover, information already available to OIG 

under the terms of Title III, Rule 6(e), and section 626 would be available 

without a prior assessment of whether that information was related to the 

Department’s law enforcement functions or the FBI’s conduct of foreign 

counterintelligence investigations, and, in the case of Rule 6(e) information, without a prior determination by an attorney for the government 

that OIG assistance was necessary to assist in performing the attorney’s 

duty to enforce federal criminal law. Because section 6(a)(1) would thus 

provide OIG with access to protected information in more circumstances 

and on broader terms than are provided for in Title III, Rule 6(e), and 

section 626 themselves, we must consider whether section 6(a)(1) overrides the limits imposed by those statutes.

III.

In this Part, we address whether section 6(a)(1) overrides the disclosure limitations in Title III, Rule 6(e), and section 626. We first discuss 

the general interpretive principles that will guide our analysis, concluding that only a clear statement of congressional intent to override conflicting statutes would be sufficient to abrogate the detailed prohibitions 

on disclosing sensitive information contained in Title III, Rule 6(e), and 

section 626. We then analyze the text, structure, and history of the IG 
39 Op. O.L.C. 12 (2015)

70

Act to determine whether it contains such a clear statement. Finding that 

it does not, we conclude that the Department remains bound by Title III, 

Rule 6(e), and section 626 when it responds to OIG requests under section 6(a)(1), and thus that it may not disclose information covered by 

those statutes outside the circumstances permitted by the statutes themselves. 

A.

Both the Supreme Court and this Office have repeatedly confronted 

apparent conflicts between statutes that address the same subject matter. 

Two lines of authority are particularly relevant here. In the first, the Court 

and this Office have considered whether statutory provisions protecting 

highly sensitive information can be overridden by competing statutory 

rights of access. In the second, which is sometimes intertwined with the 

first, the Court and this Office have considered the circumstances in 

which a general statute can be construed to override a more specific 

statutory provision. In addressing these subjects, the Court and this 

Office have identified two salient interpretive principles that will guide 

our analysis.

First, in a range of contexts—including contexts involving information 

protected by Rule 6(e) and Title III—the Supreme Court and this Office 

have declined to infer that Congress intended to override statutory limits 

on the disclosure of highly sensitive information about which Congress 

has expressed a special concern for privacy, absent a clear statement of 

congressional intent to that effect. In Illinois v. Abbott & Associates, Inc., 

460 U.S. 557 (1983), for example, the Court held that an antitrust statute 

authorizing state attorneys general to obtain, “to the extent permitted by 

law, any investigative files or other materials” relevant to an antitrust suit, 

15 U.S.C. § 15f(a) (1976), did not supersede the limits of Rule 6(e). 460 

U.S. at 565. The Court relied primarily on the statute’s use of the phrase 

“to the extent permitted by law,” which it read to exclude from the statute’s scope any disclosures not authorized by Rule 6(e). Id. at 566–69. 

But in response to the argument that such a reading would frustrate the 

statute’s purpose by “severely limit[ing] the amount of additional disclosure to state attorneys general” it made possible, id. at 572, the Court 

further explained that because the rule of grand jury secrecy was “so 

important, and so deeply-rooted in our traditions,” it would “not infer that 
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Congress has exercised [the] power [to modify it] without affirmatively 

expressing its intent to do so,” id. at 572–73. 

The Court and this Office have since applied this clear statement rule to 

Rule 6(e) information on multiple occasions. In Sells, discussed above, 

the Court concluded that Department attorneys could not disclose grand 

jury information for use in civil cases in part because “the long-established policy” and “importan[ce]” of grand jury secrecy meant that, 

“[i]n the absence of a clear indication in a statute or Rule,” the Court 

“must always be reluctant to conclude that a breach of [grand jury] secrecy has been authorized.” 463 U.S. at 424–25 (internal quotation marks 

omitted); see id. at 435 (refusing to adopt a “plausible” but broad construction of exception (A)(i) in light of the policy of grand jury secrecy 

and the Rule’s legislative history). And in our Rule 6(e) Intelligence 

Community opinion, this Office concluded that section 104(a) of the 

National Security Act, which granted the Director of Central Intelligence 

access to “all intelligence related to the national security,” did not “override grand jury secrecy restrictions” because it did not “clearly manifest 

an intent to reach grand jury information.” 21 Op. O.L.C. at 165 (emphasis added); see also Memorandum for Richard K. Willard, Assistant 

Attorney General, Civil Division, from Samuel A. Alito, Jr., Deputy 

Assistant Attorney General, Office of Legal Counsel, Re: Authority of the 

FBI to Transfer Restricted Records to the National Archives and Records 

Administration at 2 (Feb. 27, 1986) (“FBI NARA Memorandum”).

This Office has concluded that “a similar approach is appropriate” to 

the protection of Title III information. Title III Intelligence Community, 

24 Op. O.L.C. at 273. In our Title III Intelligence Community opinion, we 

considered whether the same provision of the National Security Act addressed in our Rule 6(e) Intelligence Community opinion, section 104(a), 

superseded Title III’s limits on the disclosure of the contents of electronic 

communications. We reasoned that even though “Title III does not have 

the historical roots of the grand jury secrecy rule,” we should be similarly 

reluctant to conclude that Congress had abrogated Title III’s limits. Id.

This was so, we explained, because of the strong “privacy interests underlying” and reflected in Title III, and the “constitutional concerns” that 

might be raised by permitting government entities to broadly disclose the 

contents of intercepted communications between private parties. Id. at 

272–73 (citing In re Application of Nat’l Broad. Co., 735 F.2d 51 (2d Cir. 
39 Op. O.L.C. 12 (2015)

72

1984)); see also Scott, 436 U.S. at 132 (noting that Berger and Katz “proscribed” the “indiscriminate use of wire surveillance” (internal quotation 

marks omitted)). We also observed that “[n]othing in the language of 

section 104(a) . . . refers to Title III information,” and that “there is nothing in the legislative history of that section that suggests that Congress 

considered Title III information” in enacting that statute. Title III Intelligence Community, 24 Op. O.L.C. at 272. We therefore advised that “in 

the absence of at least some evidence that Congress intended to create a 

new exception to Title III’s limits on disclosure,” section 104(a) of the 

National Security Act should not be read to “permit otherwise prohibited 

disclosure of Title III information to members of the intelligence community.” Id. at 273. Likewise, facing an apparent conflict between Title III

and a statute authorizing the FBI to transfer records to the National Archives and Records Administration, we explained that because Title III, 

like Rule 6(e), “enact[s] [a] strict rule[] of secrecy,” makes violations of 

the rule a felony, and “protect[s] highly important privacy rights,” its 

provisions had to “take precedence” over the statute governing transfers 

to the National Archives, absent “evidence that Congress contemplated” 

the transfer of Title III information to the Archives. FBI NARA Memorandum at 2.

We have not previously considered whether a similar clear statement 

rule should apply to information protected by section 626 of FCRA. But 

we have applied much the same clear statement rule to other highly sensitive information, in addition to Title III and Rule 6(e) information, that 

Congress has protected from disclosure through statutes that suggest a 

special concern for privacy. For instance, we concluded in 1977 that “any 

doubts” about Congress’s intent to permit disclosure of tax return information “should be resolved in favor” of confidentiality, in light of the 

“rigid safeguards” Congress set up in the statute and the strict penalties 

that Congress imposed for unauthorized disclosure. Transfer of Watergate 

Special Prosecution Task Force Records to the National Archives, 1 Op. 

O.L.C. 216, 218–19 (1977) (“Transfer of Watergate Records”); see id. at 

219 (advising that disclosure of such records would be lawful only if there 

were “explicit legislative authorization”). Reaffirming this conclusion 

in 1986, we explained that the reasons for applying a clear statement rule 

to tax return information were “similar” to those underlying the rule for 

Title III and Rule 6(e) information: the language of all three statutory 
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73

regimes, together with their legislative history, “express[ed] a strong 

congressional intent to maintain very strict privacy for such information.” 

FBI NARA Memorandum at 1–2. Similarly, we have long concluded that 

in light of “the federal government’s longstanding commitment to confidentiality” of census information, and the “broad confidentiality protection[s]” that Congress enacted for such information, we must not infer 

that a statute authorizes its disclosure unless “the evidence of congressional intention compel[s] such a conclusion.” Census Confidentiality and 

the PATRIOT Act, 34 Op. O.L.C. 1, 7, 12 (2010) (“Census Confidentiality”) (internal quotation marks omitted); see also Confidential Treatment 

of Census Records, 40 Op. Att’y Gen. 326, 328 (1944); United States v. 

Bethlehem Steel Corp., 21 F.R.D. 568, 572 (S.D.N.Y. 1958) (stating that 

“the purpose to protect the privacy of [census] information . . . is so clear 

and the public policy underlying the purpose so compelling” that authority 

to abrogate that privacy should not be inferred “absent a clear Congressional grant”). 

In our view, the logic of these opinions, and of the prior opinions concerning Rule 6(e) and Title III information, extends to section 626 of 

FCRA. All of these opinions involved highly sensitive information with 

respect to which Congress has “expressed a strong congressional intent to 

maintain very strict privacy” in various ways, including through “strict” 

or “rigid” rules of secrecy applicable to government officials, FBI NARA 

Memorandum at 1–2; Transfer of Watergate Records, 1 Op. O.L.C. at 

219; penalties for unauthorized disclosure, FBI NARA Memorandum at

2–3; Transfer of Watergate Records, 1 Op. O.L.C. at 218; and, in some 

but not all circumstances, a “long-established policy” of confidentiality, 

Sells, 463 U.S. at 424; see also Census Confidentiality, 34 Op. O.L.C. at 

12; cf. Title III Intelligence Community, 24 Op. O.L.C. at 273 (noting that 

“Title III does not have the historical roots of the grand jury secrecy 

rule”). Further, “the privacy interests at stake” in these opinions were “not 

primarily those of the government but of third parties, such as taxpayers 

and grand jury witnesses,” whose rights the federal government has “a 

duty to protect.” FBI NARA Memorandum at 3; accord Title III Intelligence Community, 24 Op. O.L.C. at 273. As discussed above, section 626, 

like Rule 6(e), Title III, and the statutes governing protection and disclosure of tax return and census information, imposes a strict duty of confidentiality, enforced by penalties for improper disclosure. See supra Part
39 Op. O.L.C. 12 (2015)

74

II.C; 15 U.S.C. § 1681u(f), (i)–(j). Further, section 626 information, like 

grand jury, Title III, tax return, and census information, is highly sensitive 

information about private individuals rather than the government—

indeed, it is information that the government may have obtained without 

the subject’s knowledge. See 15 U.S.C. § 1681u(d) (authorizing the FBI 

to bar the provider of section 626 information, in certain circumstances, 

from informing others about the disclosure). We thus think there is a 

strong argument that the federal government has a similar “duty to protect 

[the statutory privacy] rights” in section 626 unless “Congress’s command 

is clear.” FBI NARA Memorandum at 3. See generally Sossamon v. 

Texas, 131 S. Ct. 1651, 1661 (2011) (“‘[C]lear statement rules ensure 

Congress does not, by broad or general language, legislate on a sensitive 

topic inadvertently or without due deliberation.’” (alteration in original) 

(quoting Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 139 (2005) 

(plurality opinion))).

A second general principle, complementary to and often applied in conjunction with the first, also informs our analysis. Where the Court and this 

Office have faced apparent conflicts between two competing statutes, they 

have frequently resolved the question by applying the “rule of relative 

specificity.” This “cardinal axiom of statutory construction,” GAO Access 

to Trade Secret Information, 12 Op. O.L.C. 181, 182 (1988) (“GAO 

Access”), holds that “[w]here there is no clear [congressional] intention 

otherwise, a specific statute will not be controlled or nullified by a general 

one, regardless of the priority of enactment,” Mancari, 417 U.S. at 550–

51. Under this rule, 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.” RadLAX Gateway Hotel, 132 

S. Ct. at 2071–72; see, e.g., Mancari, 417 U.S. at 535 (construing section 

12 of the Indian Reorganization Act of 1934 as an exception to the Equal 

Employment Opportunity Act of 1972). This rule ensures that congressional commands are followed to the fullest extent possible, by giving 

effect to the more focused or particularized expression of Congress’s will 

on the particular question at hand. 

Applying the rule of relative specificity, we have often concluded that 

statutes barring the disclosure of particular types of information by particular entities, subject to particular exceptions, take precedence over stat-
Access of DOJ IG to Certain Information Protected from Disclosure by Statute

75

utes broadly entitling an entity to examine federal records. In our GAO 

Access opinion, for instance, we determined that a statute prohibiting the 

Food and Drug Administration from disclosing trade secrets except to 

certain specified individuals and entities took precedence over 31 U.S.C. 

§ 716(a), a statute providing that “[e]ach agency shall give the Comptroller General information [he] requires about the duties, powers, activities, 

organization, and financial transactions of the agency.” See 12 Op. O.L.C. 

at 182. “Since [the trade secrets statute] is a specific statute directly 

addressing one executive branch agency’s handling of trade secret information, while [the Comptroller General statute] is a general statute addressed to all kinds of information in possession of the executive branch,” 

we reasoned, “[the trade secrets statute] controls in the absence of congressional intent to the contrary.” Id. at 182–83. Applying the same reasoning, we later concluded that section 716(a) also had to give way to a

“specific provision” that restricted “which recipients” could obtain certain 

employment information from the Department of Health and Human Services “and under what circumstances.” GAO Access to National Directory 

of New Hires, 35 Op. O.L.C. 106, 113 (2011). In yet another opinion, we 

concluded that this principle required that a statute specifically regulating 

“the disclosure of information received pursuant to” the National Traffic 

and Motor Vehicle Safety Act “prevails over” the Federal Reports Act, 

which “deals with . . . the general matter of the intragovernmental exchange of information.” Disclosure of Confidential Business Records 

Obtained Under the National Traffic and Motor Vehicle Safety Act, 

4B Op. O.L.C. 735, 736 (1980).

In other instances, we have concluded that the rule of relative specificity operates in tandem with the clear statement rule protecting highly 

sensitive information about which Congress has expressed a special 

concern for privacy. For instance, we have repeatedly stated that the rule 

of relative specificity, in conjunction with the other clear statement rule 

discussed above, favors the “subsequently enacted, more specific prohibition” on the disclosure of tax returns contained in 26 U.S.C. § 6103 over 

the “general access provisions” permitting the Archivist of the United 

States to obtain the records, including the confidential records, of any 

federal agency. National Archives Access to Taxpayer Information, 21 

Op. O.L.C. 92, 94–95 (1997). We reasoned that Congress had provided 

that “tax returns and tax return information would be disclosed only under 
39 Op. O.L.C. 12 (2015)

76

the carefully prescribed conditions set out in” section 6103, and thus that 

it would be “unrealistic to assume that Congress intended (but neglected 

to mention) that such materials would also be subject to disclosure under 

the Archives provisions.” FBI NARA Memorandum at 2; see also Memorandum for Alice Daniel, Assistant Attorney General, Civil Division, from 

Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Applicability of the Non-Disclosure Provisions of the Tax Reform 

Act (Nov. 7, 1980); Transfer of Watergate Records, 1 Op. O.L.C. at 218–

19. We have similarly relied on the rule of relative specificity to bolster 

our conclusions that Congress would not, absent a clear statement, have 

overridden the “specific” and “carefully delineated” schemes protecting 

Rule 6(e), Title III, and census information through general statutes 

providing broad access to large categories of information held by multiple 

government agencies. FBI NARA Memorandum at 2; see Census Confidentiality, 34 Op. O.L.C. at 15.

The rule of relative specificity, of course, does not always favor a withholding statute over an access statute. Sometimes we have deemed the 

rule inapplicable because two competing statutes were comparably specific. In resolving a conflict between Rule 6(e)’s secrecy requirement and 

the right of access under section 104(a) of the National Security Act, for 

example, we found the rule inconclusive because both statutes dealt with 

“narrow and specialized categories of information”—although we nonetheless found that Rule 6(e) prevailed over section 104(a) because of the 

clear statement rule protecting highly sensitive information. Rule 6(e)

Intelligence Community, 21 Op. O.L.C. at 165 n.9; see also Gulf War 

Veterans Health Statutes, 23 Op. O.L.C. 49, 52 (1999) (deeming the 

canon inconclusive where “the two provisions are at the same order of 

specificity”). In another circumstance, we concluded that the rule of 

relative specificity was inconclusive in resolving a conflict between two 

statutes because each was “more specific” in one respect but “less specific” in another. Restrictions on Travel by Voice of America Correspondents, 23 Op. O.L.C. 192, 195 n.2 (1999). 

Here, we believe the rule of relative specificity applies, and suggests 

that the nondisclosure provisions in Title III, Rule 6(e), and section 626

should prevail over the general right of access contained in section 6(a)(1)

absent a clear indication of congressional intent to the contrary. Most 

obviously, the withholding statutes address with greater specificity the 
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77

type of information they regulate: where section 6(a)(1) directs agencies 

to disclose “all records” and other materials within an inspector general’s 

investigative jurisdiction, Title III, Rule 6(e), and section 626 address the 

treatment of narrow and well-defined classes of information. See 18

U.S.C. § 2517 (“the contents of any [intercepted] wire, oral, or electronic 

communication”); Fed. R. Crim. P. 6(e)(2)(B) (“a matter occurring before 

the grand jury”); 15 U.S.C. § 1681u(a)–(c) (“the names and addresses of 

all financial institutions . . . at which a consumer maintains or has maintained an account,” the consumer’s “name, address, former addresses, 

places of employment, or former places of employment,” and “consumer 

report[s]”). And, as we have explained above, see supra Part II, Congress 

“carefully prescribed” the precise conditions under which disclosure of 

Title III, Rule 6(e), and section 626 information would be lawful, FBI 

NARA Memorandum at 2. This precise specification makes it “unrealistic” to think that Congress would have intended to permit disclosure 

outside of the conditions it prescribed, absent a clear indication of an 

intent to do so. Id.; see Transfer of Watergate Records, 1 Op. O.L.C. at

218 (“The amount of attention that was paid to the formulation of the 

exceptions would allow for an inference that no exception was intended as 

to the Archives.”); see also Hinck v. United States, 550 U.S. 501, 506 

(2007) (“[I]n most contexts, a precisely drawn, detailed statute pre-empts 

more general remedies.” (internal quotation marks omitted)).

Section 6(a)(1) is arguably as specific as the withholding statutes with 

respect to the lawful recipients of information: section 6(a)(1) grants 

access only to particular identified individuals. However, the careful 

prescriptions of the conditions for disclosure contained in the withholding statutes demonstrates that even in this respect, they are more specific 

than section 6(a)(1). The withholding statutes specify not only the lawful recipients of Title III, Rule 6(e), and section 626 information, but 

also the circumstances in which those recipients may obtain information. 

Title III, for example, authorizes disclosure to investigative or law 

enforcement officers only “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); Rule 6(e) authorizes 

disclosure to an attorney for the government only “for use in performing 

that attorney’s duty” to enforce federal criminal law, Fed. R. Crim. P. 

6(e)(3)(A)(i); and section 626 authorizes the FBI to disclose covered 
39 Op. O.L.C. 12 (2015)

78

information to other federal agencies only “as may be necessary for the 

approval or conduct of a foreign counterintelligence investigation,” 

15 U.S.C. § 1681u(f). By contrast, section 6(a)(1) authorizes disclosure 

to “the Inspector General,” but the IG Act is silent as to how an inspector general may use information he has obtained pursuant to section 

6(a)(1), other than to set forth the general duties and responsibilities of 

the office that implicitly constrain the use of such information. See, e.g.,

5 U.S.C. app. § 4; Burlington N. R.R. Co. v. Office of Inspector Gen., 

R.R. Retirement Bd., 983 F.2d 631, 641 (5th Cir. 1993) (“[A]n Inspector 

General’s investigatory powers generally [do not] extend to matters that 

do not concern fraud, inefficiency, or waste within a federal agency.”).18

Accordingly, the rule of relative specificity applies here, and reinforces 

the other clear statement principle discussed above. Just as that principle 

requires a clear statement before we may conclude that Congress abrogated the confidentiality of Rule 6(e), Title III, or section 626 information, so 

the rule of relative specificity requires a clear statement before we may 

conclude that the general right of access granted by section 6(a)(1) takes 

precedence over the specific, carefully delineated limits on disclosure 

Congress set forth in those statutes.19 It is not surprising that these rules 

 18 Even if the IG Act addressed the lawful recipients of information with the same degree of specificity as Title III, Rule 6(e), and section 626, that fact alone would not render 

the rule of relative specificity inapplicable. We have often applied the rule in comparable 

circumstances. See, e.g., National Archives Access to Taxpayer Information, 21 Op. 

O.L.C. at 94–95 (concluding that a specific statute regulating the disclosure of tax returns 

takes precedence over a general statute granting the Archivist of the United States access 

to the records of any federal agency); GAO Access, 12 Op. O.L.C. at 182–83 (concluding 

that a “specific statute directly addressing one executive branch agency’s handling of 

trade secret information” takes precedence over a “general statute addressed to [the 

Comptroller General’s access to] all kinds of information in possession of the executive 

branch”).

19 Although the timing of the enactment of conflicting statutes can sometimes be 

relevant to their interpretation, see infra p. 96, that timing does not affect the applicability of the principles discussed in the text to the statutes at issue here. This Office has 

thought a clear statement was necessary to permit access both to information protected 

by “long-established polic[ies]” of confidentiality, Sells, 463 U.S. at 424; see also

Census Confidentiality, 34 Op. O.L.C. at 12, and to information protected by statutes 

enacted “subsequent” to the competing access provision, FBI NARA Memorandum

at 2. Likewise, the Supreme Court has held that “a more specific statute will be given 

precedence over a more general one, regardless of their temporal sequence.” Busic v. 

United States, 446 U.S. 398, 406 (1980). The clear statement rules we have discussed 
Access of DOJ IG to Certain Information Protected from Disclosure by Statute

79

are mutually reinforcing. Ultimately, both stem from the commonsense 

notion that where Congress has legislated with great care on a particular 

subject—whether by establishing strict limits on the disclosure of information it considers highly sensitive, or by creating a specific and detailed 

statutory scheme—it is unlikely to have displaced the limits it imposed 

through unclear or general language. As a result, the dispositive question 

in resolving the conflict between section 6(a)(1) and these three withholding statutes is whether Congress clearly expressed an intention in the IG 

Act to grant inspectors general access to information protected by Rule 

6(e), Title III, or section 626 notwithstanding the limits those statutes 

place on disclosure. 

B.

With these principles in mind, we now consider whether section

6(a)(1) contains the kind of clear statement necessary to override the 

withholding statutes’ limitations on disclosure. OIG contends that Congress intended the IG Act to grant it “full and prompt access to information obtained by [the Department] through the use of” Title III, Rule

6, and section 626. OIG 2014 Memorandum at 9. In particular, OIG 

argues that section 6(a)(1) grants it “affirmative and explicit authority” to 

obtain those materials, and that the IG Act’s other provisions, structure, 

and purpose indicate that that right of access is not subject to the limits 

imposed by those withholding statutes. Id.; see OIG Supplemental Memorandum at 11–15. OIG’s arguments are substantial. We conclude, however, that the IG Act does not provide the kind of clear indication of 

congressional intent necessary to override the specific, carefully drawn 

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

To begin, the text of the IG Act does not contain the sort of language 

we have previously found sufficient to constitute a clear statement that 

Congress intends to override more specific statutory provisions that protect sensitive information. The IG Act does not mention Title III or Rule 

6(e), despite having been enacted after these statutes. Cf. Title III Intelligence Community, 24 Op. O.L.C. at 272 (noting that “[n]othing in the 

language of” the general disclosure provision of the National Security Act 

 

above thus apply equally to Rule 6(e) and Title III, which preceded section 6(a)(1), and 

to section 626, which postdated it.
39 Op. O.L.C. 12 (2015)

80

“refers to Title III information,” despite having been added after Title III); 

Census Confidentiality, 34 Op. O.L.C. at 9, 12 (noting that section 215 

of the PATRIOT Act “contains no express and specific statement indicating an intention” to override the “well-established confidentiality protections set forth in the Census Act,” and “makes no reference to the census 

or the Census Act”); Rule 6(e) Intelligence Community, 21 Op. O.L.C. at 

165 (“Neither the text of section 104(a) [of the National Security Act] nor 

its pertinent legislative history contains . . . an affirmative expression of 

intent to override grand jury secrecy restrictions.”). Nor does the IG Act 

contain general language addressing potential conflicts with other statutory confidentiality provisions, such as a statement that the inspector general’s right of access shall apply “notwithstanding any other law” or 

“notwithstanding any statutory prohibition on disclosure”—language that 

might, at least in some circumstances, provide a clearer indication that the 

general access language was supposed to override more specific statutory 

protections of confidential information.20 See, e.g., Brady Act Implementation Issues, 20 Op. O.L.C. 57, 62 (1996) (concluding that a Brady Act 

provision permitting the Attorney General to obtain relevant information 

from any department or agency “[n]otwithstanding any other law” permitted access to information otherwise subject to restrictions in the Privacy 

Act); Census Confidentiality, 34 Op. O.L.C. at 13 (noting that section 215 

of the PATRIOT Act “contains no language” like “notwithstanding any 

provision of law” (internal quotation marks omitted)).21 Thus, while 

 20 Even a grant of access that includes a “notwithstanding any other provision of law” 

clause might not, in all circumstances, overcome a conflicting, detailed statutory scheme 

restricting the disclosure of information. Cf. United States v. Novak, 476 F.3d 1041, 1046 

(9th Cir. 2007) (en banc) (“In examining specific statutes, we have not . . . always accorded universal effect to the ‘notwithstanding’ language, standing alone. Instead, we have 

determined the reach of each such ‘notwithstanding’ clause by taking into account the 

whole of the statutory context in which it appears.” (citations omitted)).

21 Statutes containing such language are not unusual. See, e.g., Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, § 103(e)(1), 107 Stat. 1536, 1542 (1993)

(“Notwithstanding any other law, the Attorney General may secure directly from any 

department or agency of the United States such information . . . as is necessary to enable 

the [National Instant Criminal Background Check System] to operate in accordance with 

this section.”); 12 U.S.C. § 5226(a)(2)(C)(i) (“Notwithstanding any other provision of law 

. . . the Comptroller General shall have access, upon request, to any information, data, 

schedules, books, accounts, financial records, reports, files, electronic communications, or 

other papers.”); 15 U.S.C. § 78g(f)(2) (“Notwithstanding any other provision of law . . . 
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section 6(a) establishes a general right of access by inspectors general, it 

does not expressly address the relative strength of that right compared to 

other statutory restrictions on disclosure that would by their terms exclude 

access by inspectors general—let alone clearly resolve that the general 

right of access overrides the conflicting statutory provisions.

According to OIG, the IG Act’s command that agencies provide inspectors general with unfettered access to information is nonetheless clear. 

Section 6(a)(1), OIG observes, authorizes each inspector general “to have 

access to all records” available to his agency and within his investigative 

jurisdiction. OIG 2014 Memorandum at 8 (emphasis added). We recognize that the word “all,” read literally, extends to every record available to 

an agency, whether protected by a withholding statute or not. But the 

Supreme Court has noted that “circumstances may counteract the effect of 

expansive modifiers” like “all” or “any,” Ali v. Fed. Bureau of Prisons, 

552 U.S. 214, 220 n.4 (2008), particularly in circumstances where a clear 

statement rule applies. In Raygor v. Regents of University of Minnesota, 

534 U.S. 533 (2002), for example, the Court considered whether a statute 

granting federal district courts jurisdiction to hear “all other claims” that 

are part of a case or controversy over which a district court has original 

jurisdiction, 28 U.S.C. § 1367(a) (emphasis added), was sufficiently clear 

to evince congressional intent to abrogate state sovereign immunity. The 

Court concluded that, despite the facial breadth of the statute, it did not 

confer jurisdiction on district courts to hear claims against states that did 

not consent to be sued. “[E]ven though nothing in the statute expressly 

exclude[d] such claims,” and the grant of jurisdiction was “facially broad” 

enough to cover them, the Court found the statutory language “insufficient to constitute a clear statement of an intent to abrogate state sovereign immunity.” Raygor, 534 U.S. at 541–42; see also Blatchford v. 

Native Vill. of Noatak & Circle Vill., 501 U.S. 775, 786 (1991) (concluding that 28 U.S.C. § 1362, which establishes federal jurisdiction over “all

civil actions” that satisfy the amount in controversy requirement (emphasis added), lacks the “clear legislative statement” necessary to override 

state sovereign immunity). 

 

the Attorney General shall provide the Commission and self-regulatory organizations 

designated by the Commission with access to all criminal history record information.”).
39 Op. O.L.C. 12 (2015)

82

Even more directly relevant, this Office has concluded that broad, general terms like “all” and “any” do not provide the clear statement of 

congressional intent needed to override specific, detailed statutory limitations or prohibitions on the disclosure of sensitive information about 

which Congress has expressed a special concern for privacy. In our Rule 

6(e) Intelligence Community opinion, for example, we determined that a 

statute much like the IG Act, which granted the Director of Central Intelligence “access to all intelligence related to national security,” did not 

“clearly manifest an intent to reach grand jury information.” 21 Op. 

O.L.C. at 165 (emphasis added). Although we acknowledged that “the 

‘intelligence’ covered by the statute could reasonably be interpreted to 

encompass certain kinds of grand jury information,” we thought that 

“[t]he most that may be said about [the statute’s] text in this regard is that 

it is unclear on the point.” Id. at 165–66. We later concluded that the same 

statute—despite the word “all”—did not authorize unrestricted disclosure 

of Title III information to the Director of Central Intelligence. See Title III

Intelligence Community, 24 Op. O.L.C. at 272–73. And in our Census 

Confidentiality opinion, we concluded that a section of the Patriot Act authorizing the FBI to obtain “‘any tangible things . . . for an investigation 

to obtain foreign intelligence information’” was not sufficiently clear to 

overcome the presumption of confidentiality for census information. 

Census Confidentiality, 34 Op. O.L.C. at 6, 9 (emphasis added); see also 

Confidential Treatment of Census Records, 40 Op. Att’y Gen. at 327–28 

(concluding that a statute granting the Archivist of the United States the 

“authority to make regulations for the arrangement, custody, use, and 

withdrawal of material” requisitioned for deposit in the National Archives 

building, and repealing “[a]ll Acts or parts” inconsistent with this authority, did not contain the “very clear language” necessary to abrogate the 

statutory provisions governing confidential treatment of census records 

(emphasis added)). Thus, the word “all,” on its own, does not provide the 

clear statement necessary to reach Title III, Rule 6(e), and section 626

information.

OIG further argues that Congress’s intent to grant it access to statutorily protected information under section 6(a)(1) is made apparent by a negative implication from sections 6(a)(3) and 6(b)(1) of the IG Act. Whereas 

section 6(a)(1) grants inspectors general access to materials within the 

agencies they help oversee, section 6(a)(3) of the Act authorizes them to 
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83

“request . . . information or assistance . . . from any Federal, State, or 

local governmental agency or unit thereof.” 5 U.S.C. app. § 6(a)(3) (emphasis added). Section 6(b)(1) qualifies this latter authorization by providing:

Upon request of an Inspector General for information or assistance 

under subsection (a)(3), the head of any Federal agency involved 

shall, insofar as is practicable and not in contravention of any existing statutory restriction or regulation of the Federal agency from 

which the information is requested, furnish to such Inspector General, or to an authorized designee, such information or assistance.

Id. § 6(b)(1) (emphasis added). Section 6(b)(1) thus makes explicit that 

the obligation of another agency to respond to an inspector general’s 

request for information under section 6(a)(3) is subject to, among other 

things, “existing statutory restriction[s].” But neither section 6(b)(1) nor 

any other provision in section 6 imposes a similarly express limitation 

on the right of access under section 6(a)(1). OIG argues that this omission was intentional, and coupled with the inclusion of the express 

limitation in section 6(b)(1), implies that Congress intended access 

under section 6(a)(1) to be “automatic” and free of any “existing statutory restriction[s].” OIG Supplemental Memorandum at 12–13. 

OIG’s argument is “admittedly a plausible one,” Sells, 463 U.S. at 435, 

and in a different interpretive context, it might prevail. But as we have 

discussed, before concluding that a general access provision abrogates 

detailed, specific statutory provisions that restrict disclosure of sensitive 

information, both this Office and the courts have required a clear and 

express statement to that effect. And despite its plausibility, the inference 

OIG would draw from section 6(b)(1) is simply that: an inference. It is not 

a clear statement that plainly and unambiguously indicates that Congress 

intended the general access provision in section 6(a)(1) to trump more 

specific provisions that protect highly sensitive information. See, e.g., 

Fernandez-Vargas v. Gonzalez, 548 U.S. 30, 41 (2006) (stating that a 

“negative inference” from the absence of express language, found elsewhere in the same statute, that a particular provision was intended to 

apply only prospectively would not constitute a “clear statement” of intent 

to apply the provision retroactively).
39 Op. O.L.C. 12 (2015)

84

Moreover, even if a negative inference could, in some circumstances, 

be unequivocal enough to establish a clear manifestation of congressional 

intent, the inference OIG invokes would not in our view satisfy that high 

standard. For one thing, the inference “‘that the presence of a phrase in 

one provision and its absence in another reveals Congress’s design . . . 

grows weaker with each difference in the formulation of the provisions 

under inspection.’” Clay v. United States, 537 U.S. 522, 532 (2003) 

(quoting City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 

U.S. 424, 435–36 (2002)). And here, section 6(b)(1) differs from section

6(a)(1) in at least two significant ways. First, section 6(b)(1) is structured 

as an adjunct to a separate provision, section 6(a)(3), that allows an inspector general to “request” particular items from an agency other than his 

own. Because section 6(a)(3) establishes only an inspector general’s right 

to request materials from outside his agency, Congress required an additional provision, section 6(b)(1), to specify the scope of other agencies’ 

obligations to “furnish” the requested material to an inspector general. 

Section 6(a)(1), in contrast, is not part of a similar bifurcated structure, 

but rather—by giving an inspector general a right of “access” to certain 

materials—establishes both an inspector general’s right to receive and, by 

implication, the agency’s obligation to provide relevant material. Thus, 

unlike in the case of section 6(a)(3), Congress had no need to say anything in subsection (b)(1) about the scope of an agency’s obligation to 

comply with an inspector general’s attempt to obtain materials under 

section 6(a)(1). See Ours Garage, 536 U.S. at 434 (concluding that, 

because of significant differences in the formulation of certain related 

statutory provisions, any negative inference arising from the inclusion in 

one provision of a phrase omitted from the other was insufficient to constitute a “clear and manifest indication” of congressional intent). 

Second, as the text of section 6(b)(1) makes clear, Congress chose to 

impose several limitations on an inspector general’s right to obtain information from outside his agency, including that outside agencies need only 

provide the requested information “insofar as is practicable” and to the 

extent permitted by “existing . . . regulation[s].” 5 U.S.C. app. § 6(b)(1). 

Those limitations, because they do not themselves have a statutory basis, 

would not obviously have applied unless Congress imposed them expressly. But having done so, Congress may have felt compelled to add “existing statutory restriction[s]” to the list of limitations in order to dispel any 
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inference that it did not intend those restrictions to apply as well. In 

contrast, Congress chose not to make an inspector general’s right of 

access under section 6(a)(1) subject to any similar restrictions with a 

non-statutory source. It therefore had no similar need to expressly refer 

to “existing statutory restriction[s]” when drafting that provision. See 

Gomez-Perez v. Potter, 553 U.S. 474, 486–88 (2008) (declining to draw a 

negative inference from the omission of an express prohibition on retaliation in one section of the Age Discrimination in Employment Act and its 

inclusion in another, where the second section set out “a specific list of 

forbidden employer practices,” and the inclusion of retaliation among 

them may have been necessary to “dispel any . . . inference” that “Congress did not want to reach retaliation”).

OIG’s inference is further clouded by the text of section 6(b)(2) of the 

IG Act, which provides that an inspector general shall report to Congress 

if “information or assistance requested under subsection (a)(1) or (a)(3) is, 

in the judgment of [the] Inspector General, unreasonably refused or not 

provided.” 5 U.S.C. app. § 6(b)(2) (emphasis added). This subsection 

suggests that it is possible to “reasonably” refuse to grant an inspector 

general access to materials under subsection (a)(1). And if access can 

“reasonably” be refused under subsection (a)(1), then that provision 

cannot provide the unfettered and absolute right to information asserted 

by OIG. To be sure, it is also possible to read subsection (b)(2) to mean 

that any information refused under subsection (a)(1) is necessarily refused 

“unreasonably,” given the broad right of access provided by that subsection. But subsection (b)(2) is not clear on this point, and it can be read to 

suggest that subsection (a)(1) has an implicit exception, consistent with 

the principles of statutory interpretation discussed above, for specific 

statutory schemes protecting highly sensitive information.

Read together, then, we do not believe the various provisions of section 6 contain the kind of clear statement necessary to overcome the 

carefully drawn limitations on disclosure of highly sensitive information 

found in Title III, Rule 6(e), and section 626. And to the extent that those 

provisions create any ambiguity, the IG Act’s legislative history affirmatively suggests that Congress intended to subject inspector general access 

under section 6(a)(1) to applicable statutory restrictions. In particular, the 

Senate Report accompanying the IG Act flatly states that section 6(a) is “a 

broad mandate permitting the Inspector . . . General the access he needs to 
39 Op. O.L.C. 12 (2015)

86

do an effective job subject, of course, to the provisions of other statutes, 

such as the Privacy Act.” S. Rep. No. 95-1071, at 33–34 (1978) (emphasis 

added). In addition, a version of the bill initially passed by the House of 

Representatives would have expressly granted inspectors general access to 

records notwithstanding certain limitations of the Privacy Act (a clarification that would, incidentally, have been superfluous had the House believed that section 6(a)(1) already exempted inspectors general from all 

statutory limits on disclosure). See H.R. 8588, 95th Cong. § 5(b)(3) (as 

passed by the House of Representatives, Apr. 18, 1978).22 The Senate 

removed that provision from the final version of the bill because, the 

Senate Committee Report explained, the House’s language would have 

granted inspectors general “a power that no other official of the executive 

branch has—the authority to require the transfer of personal information 

from any agency . . . without regard for the protections of the Privacy 

Act.” S. Rep. No. 95-1071, at 13. Removing the provision, the Report 

stated, “does not mean that an Inspector . . . General will be unable to 

obtain needed information to perform his responsibilities. It simply means 

that the information must be obtained in conformity with the exemptions 

and procedures of the [Privacy Act].” Id. (emphasis added). The Report 

explained that this would not be difficult, because “all information within 

the agency would be available to the Inspector . . . General, based on the 

‘intra-agency’ exemption” included in the Privacy Act itself. Id. (emphasis added). This language strongly suggests that, at least in the Committee’s view, inspectors general would remain subject to other statutory 

requirements, including statutory restrictions on use and disclosure, when 

seeking access under section 6(a)(1), and further undermines the notion 

 22 This draft provided: 

In the event any record or other information requested by the Inspector General 

under subsection (a)(1) or (a)(3) is not considered to be available under the provisions of section 552a(b) (1), (3), or (7) of title 5, United States Code, such record 

or information shall be available to the Inspector General in the same manner and 

to the same extent it would be available to the Comptroller General.

H.R. 8588, § 5(b)(3). The “subsection[s] (a)(1) [and] (a)(3)” referred to in this provision 

of the House bill are identical to those currently found at sections 6(a)(1) and 6(a)(3) of 

the IG Act as enacted. Compare id. § 5(a)(1), (3), with 5 U.S.C. app. § 6(a)(1), (3). Title 

5, section 552a is the Privacy Act, which (then as now) expressly exempted the Comptroller General from the Privacy Act’s general prohibition on the disclosure of covered 

information. See 5 U.S.C. § 552a(b)(10). 
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that Congress intended to grant access to Rule 6(e), Title III, and section 

626 information without regard to the limitations set forth in those statutes.23

OIG also invokes a later-enacted IG Act provision specific to the Department—current section 8E—to support its reading of section 6(a)(1). 

As we have noted, this section, among other things, authorizes the Attorney General to withhold records from OIG, or otherwise direct and supervise an OIG investigation, if she determines that doing so would be “necessary to prevent the disclosure of” certain sensitive information—such as 

“sensitive information concerning . . . ongoing civil or criminal investigations” or “the identity of confidential sources”—“or to prevent the significant impairment to the national interests of the United States.” 5 U.S.C. 

app. § 8E(a)(1), (2). It further provides that if the Attorney General exercises such authority, she must “notify the Inspector General in writing 

stating the reasons for such exercise,” and that OIG must transmit a copy 

of that notice to appropriate committees in Congress. Id. § 8E(a)(3). OIG 

argues that the “exacting procedures” imposed by this provision, as well 

as its historically “infrequent use,” confirm that section 8E represents an 

“extraordinary departure from the baseline rule, established by section 6, 

that the Inspectors General enjoy access to documents and materials,” and 

demonstrates that only in the specific circumstances set out in section 8E 

may the Attorney General withhold requested records. OIG Supplemental 

Memorandum at 18; see OIG 2014 Memorandum at 8–9.

 23 OIG responds to this argument by contending that “the phrase ‘subject . . . to’” in the 

Senate Report “does not necessarily mean that [an inspector general’s] right of access to 

documents and materials is restricted by general statutory or regulatory limitations on the 

disclosure of those materials; it is just as plausible to read ‘subject . . . to’ to mean that, 

when using the materials they access, the IGs are not exempt from any statutory and 

regulatory limitations on disclosure.” OIG Supplemental Memorandum at 15. But the 

quoted passage from the Senate Report is not addressed to an inspector general’s use of 

information; rather, it specifically addresses access to information, and is contained in a 

section of the Senate Report discussing the right of access provided by section 6(a). See 

S. Rep. No. 95-1071, at 33–34. Moreover, the Report separately makes the same point 

when discussing limitations on disclosure. See id. at 32 (“[T]he Inspector . . . General 

must adhere to statutes such as 26 U.S.C. § 6013 [sic], dealing with tax returns, or Federal 

Rule of Criminal Procedure 6(e), dealing with grand jury information, which prohibit 

disclosure even to Congress.”). In addition, OIG’s argument does not address the Report’s 

multi-page discussion of the Privacy Act exception and the effect of its omission from the 

bill that ultimately became the IG Act.
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We disagree. For one thing, section 6(a)(1) was enacted in 1978 as part 

of the original IG Act, while section 8E, like the special provisions applicable to other departments and agencies, was added to the statute years 

later.24 The negative inference that OIG seeks to draw from the inclusion 

of certain heightened procedures in section 8E is therefore attenuated. See 

Gomez-Perez, 553 U.S. at 486 (“‘[N]egative implications raised by disparate provisions are strongest’ in those instances in which the relevant 

statutory provisions were ‘considered simultaneously when the language 

raising the implication was inserted.’” (alteration in original) (quoting 

Lindh v. Murphy, 521 U.S. 320, 330 (1997))). In any event, that inference 

is unconvincing on its own terms. Section 8E does not authorize the 

Attorney General to withhold only those records protected from disclosure by statute. Indeed, many of the records that the Attorney General 

may withhold under that section are not entitled to protection under any 

statute. For example, “information concerning . . . ongoing civil or criminal investigations” or “the identity of confidential sources,” 5 U.S.C. app. 

§ 8E(a)(1)(A), (C), would be protected by Rule 6(e) only if the investigation were criminal and had reached the grand jury stage. Conversely, 

much information that is protected by statute may not be subject to withholding under section 8E, such as Title III information that is not pertinent to an ongoing civil or criminal investigation or any other sensitive 

matter described in that section. Section 8E thus does not merely duplicate the protections afforded by Title III, Rule 6(e), or section 626; it 

grants the Attorney General authority over disclosures that is in some 

respects broader, and in some respects narrower, than the requirements of 

those provisions, and thus serves a distinct purpose.

Finally, in addition to these arguments based on the Act’s text and 

structure, OIG appeals to the general purposes of the IG Act. This statute 

was intended, OIG explains, to grant inspectors general a broad right of 

 24 In addition to section 8E, which applies to the Department, sections 8 through 8I of 

the IG Act contain special provisions relating to the Department of Defense (section 8), 

the Agency for International Development (section 8A), the Nuclear Regulatory Commission (section 8B), the Federal Deposit Insurance Corporation (section 8C), the 

Department of the Treasury (section 8D), the Corporation for National and Community

Service (section 8F), certain federal entities (section 8G), Inspectors General of the 

Intelligence Community (section 8H), and the Department of Homeland Security (section 8I). See 5 U.S.C. app. §§ 8–8I.
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access to agency materials, including records containing sensitive information, so that they could conduct meaningful reviews of programs 

within their jurisdiction. See OIG Supplemental Memorandum at 12, 14–

15. OIG points out, for instance, that the Act’s Senate Report characterizes section 6(a) as a “‘broad mandate’” and describes such access as 

“‘obviously crucial.’” Id. at 16 (quoting S. Rep. No. 95-1071, at 33–34); 

see also, e.g., H.R. Rep. No. 95-584, at 14 (stating that the access provision “makes clear that each Inspector General is to have access to all 

records, documents, et cetera, available to his or her agency which relate 

to programs and operations with respect to which the office has responsibilities”). OIG argues that this goal would be undermined by a construction of the statute that prohibited it from obtaining materials protected by 

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

We agree that Congress intended to grant each inspector general a 

broad right of access, and we do not doubt that such a right of access is 

crucial to enabling OIG to fulfill its statutory mission. But this kind of 

general congressional intent does not resolve the specific question at issue 

here: whether Congress clearly expressed an intention that the inspector 

general’s “broad mandate” in section 6(a)(1) supersede the limits on 

disclosure contained in Title III, Rule 6(e), and section 626. As we have 

noted, the IG Act’s text contains no such expression of intent, and the 

Act’s legislative history affirmatively indicates that Congress did not

intend to grant that kind of unlimited access to inspectors general. Moreover, in the same Report in which the Senate Committee described the 

“broad mandate” found in section 6(a)(1)—indeed, in the same sentence—it also stated that an inspector general’s access would be “subject, 

of course, to the provisions of other statutes, such as the Privacy Act.” 

S. Rep. No. 95-1071, at 33–34; see also id. at 13–14.25 It thus appears 

Congress did not believe (let alone clearly indicate) that the broad right of 

 25 The full passage reads: 

Access to all relevant documents available to the applicable [agency] relating to 

programs and operations for which the Inspector and Auditor General has responsibilities is obviously crucial. The committee intends this subsection to be a broad 

mandate permitting the Inspector and Auditor General the access he needs to do an 

effective job, subject, of course, to the provisions of other statutes, such as the 

Privacy Act. 

S. Rep. No. 95-1071, at 33–34.
39 Op. O.L.C. 12 (2015)

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access it was giving each inspector general was inconsistent with requiring compliance with specific statutory regimes that protect highly sensitive information. 

In sum, neither the text of the IG Act, nor its legislative history, nor its 

general purpose offers a clear indication that Congress intended to override the separate statutory confidentiality requirements applicable to Title 

III, Rule 6(e), and section 626 information. As a result, under both the 

principle requiring that a statute contain a clear statement in order to 

abrogate protections of highly sensitive information, and the rule of 

relative specificity, OIG remains subject to the limitations imposed by 

Title III, Rule 6(e), and section 626. The Department therefore may not 

disclose information covered by those statutes except in accordance with 

their provisions.26

IV.

We have also considered whether a recent appropriations rider grants 

OIG access to information it could otherwise not obtain under Title III, 

Rule 6(e), or section 626. Section 218 of the Consolidated and Further 

Continuing Appropriations Act, 2015, Pub. L. No. 113-235, 128 Stat. 

2130, 2200 (2014), provides:

No funds provided in this Act shall be used to deny the Inspector 

General of the Department of Justice timely access to all records, 

documents, and other materials in the custody or possession of the 

Department or to prevent or impede the Inspector General’s access 

to such records, documents and other materials, unless in accordance 

with an express limitation of section 6(a) of the Inspector General 

Act, as amended, consistent with the plain language of the Inspector 

General Act, as amended. The Inspector General of the Department 

 26 We express no view about whether inspectors general have a right to obtain information protected from disclosure by provisions other than Title III, Rule 6(e), and section 

626. Resolution of that issue would depend on whether those other statutes protected 

highly sensitive information about which Congress has “expressed a strong congressional 

intent to maintain very strict privacy,” FBI NARA Memorandum at 1–2, whether those 

statutes regulated the treatment of covered information with greater specificity than the IG 

Act, and whether the IG Act or some other relevant statute contained a clear statement 

authorizing disclosure of the information to inspectors general.
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of Justice shall report to the Committees on Appropriations within 

five calendar days any failures to comply with this requirement.

This rider permits the Department to expend Fiscal Year 2015 funds to 

withhold records from OIG only where doing so would be “in accordance 

with an express limitation of section 6(a) of ” the IG Act, “consistent with 

the plain language of” that Act. It also imposes two other legal requirements for the remainder of Fiscal Year 2015 that are not already expressly set forth in the IG Act. First, it bars the Department from using appropriated funds to deny—and so effectively obligates the Department to 

grant—OIG access to records in a “timely” manner, a matter on which 

the text of the IG Act is silent. And, second, it imposes on OIG an obligation to report failures to comply with these requirements to the congressional appropriations committees within five calendar days. Obligation or expenditure of funds contrary to the terms of the rider would 

violate the Anti-Deficiency Act, 31 U.S.C. § 1341 et seq., a statute that 

subjects federal officials obligating or expending funds in advance or in 

excess of appropriations to administrative penalties, and to criminal 

penalties in the case of knowing and willful violations, id. §§ 1341(a), 

1349(a), 1350.

OIG contends that, for two independent reasons, section 218 affirms its 

right to obtain Title III, Rule 6(e), and section 626 information notwithstanding the disclosure limitations in those statutes. First, according to 

OIG, section 218 reflects a congressional understanding that section

6(a)(1) of the IG Act requires the Department to disclose all relevant 

materials to OIG. “The passage of [section 218],” OIG argues, “serves as 

a reaffirmation of clear congressional intent, originally manifested in 

section 6(a) . . . that the OIG is entitled to access to ‘all records, reports, 

audits, reviews, documents, papers, recommendations, or other material 

available to’ the Department.” OIG 2015 E-mail; see OIG 2014 Memorandum at 4. Second, regardless of the correct interpretation of section

6(a)(1), OIG argues that section 218 independently and “unequivocal[ly]” 

requires the Department to disclose to OIG all information it requests, 

unless the Department withholds that information pursuant to a provision, 

such as section 8E, that expressly limits the right of access granted by the 

IG Act. OIG 2015 E-mail; see The Department of Justice Office of the 

Inspector General’s Fiscal Year 2016 Budget Request: Hearing Before 
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the Subcomm. on Commerce, Justice, Sci. & Related Agencies of the H.

Comm. on Appropriations, 114th Cong. 9–10 (2015) (statement of Michael E. Horowitz, Inspector Gen., Dep’t of Justice). Because neither Title 

III nor Rule 6(e) nor section 626 expressly addresses disclosures under the 

IG Act, the rider (in OIG’s view) prohibits the Department from expending Fiscal Year 2015 appropriated funds to withhold Title III, Rule 6(e), 

or section 626 materials from OIG. See OIG 2015 E-mail.

Although OIG’s arguments are again substantial, we ultimately disagree that section 218 grants OIG access to information otherwise protected by Title III, Rule 6(e), and section 626. With respect to OIG’s first 

argument, we have already concluded, for the reasons set forth in Part III 

above, that the IG Act lacks the clear statement of congressional intent 

necessary to override the detailed and specific statutory disclosure prohibitions set forth in Title III, Rule 6(e), and section 626. In order to alter 

this conclusion about the IG Act’s meaning, section 218 would need to 

contain a clear statement indicating that section 6(a)(1) should be interpreted to override those statutory limitations on disclosure. But it is not 

clear that section 218 contains any instruction about how the IG Act 

should be interpreted: it does not expressly declare the Act’s meaning, 

amend the Act to clarify its terms, or depend for its effectiveness on a 

particular interpretation of the IG Act. See Almendarez-Torres v. United 

States, 523 U.S. 224, 237 (1998) (concluding that a later-enacted law that 

lacks these features, or any other “forward looking legislative mandate, 

guidance, or direct suggestion about how [to] interpret [an] earlier provision[],” is “beside the point” in interpreting that provision). It is possible 

that Congress intended—by providing that the Department may not expend Fiscal Year 2015 funds to withhold information from OIG “unless in 

accordance with an express limitation of section 6(a) of the [IG Act], 

consistent with the plain language of the [Act]”—to convey its understanding of what the “plain language” of the IG Act means. But this 

inference, itself far from clear, would merely raise the question of what 

qualifies as “an express limitation of section 6(a),” a phrase that is in turn 

subject to various interpretations. Given these multiple layers of uncertainty, section 218 does not provide a clear statement that the IG Act 

should be interpreted to override the limitations on disclosure contained in 

Title III, Rule 6(e), and section 626.
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We also disagree that, considered on its own, the rider contains a clear 

statement of Congress’s intent to override those limitations on disclosure. 

As noted above, section 218 permits Department officials to deny materials to OIG “in accordance with an express limitation of section 6(a) of the 

Inspector General Act, as amended, consistent with the plain language of 

the [Act], as amended.” In our view, there are at least three conceivable 

constructions of the phrase “express limitation of section 6(a) of the 

Inspector General Act.” First, it could be interpreted to encompass only 

those limitations on disclosure that either appear in section 6(a) itself or 

expressly refer to that section. Second, it could be interpreted to encompass only those limitations on disclosure that are specifically directed at 

disclosures to OIG under the IG Act, whether or not they explicitly refer 

to section 6(a). Third, it could be interpreted to encompass all “express” 

limitations on disclosure that, when considered in conjunction with section 6(a), are properly deemed to function as “limitation[s] of section

6(a).” For the reasons discussed below, we believe that the first interpretation is not plausible, but that the second and third interpretations are. And 

because the third interpretation would allow the Department to continue to 

withhold materials from OIG to the extent required under the terms of 

Title III, Rule 6(e), and section 626, section 218 does not in our view 

constitute the sort of clear statement of congressional intent necessary to 

override those nondisclosure provisions. 

Under the first potential interpretation of the rider, Department officials would be prohibited from denying OIG access to documents and 

other materials except pursuant to a “limitation of section 6(a)” that 

“express[ly]” referred to (or was contained in) section 6(a) itself. This is 

a natural reading of section 218’s text. However, if this reading were 

correct, section 218 would prohibit Department officials from withholding records from OIG not only under Title III, Rule 6(e), and section 626, 

but also under section 8E of the IG Act: while section 8E plainly authorizes the withholding of certain records otherwise accessible under section

6(a), it does not refer explicitly to section 6(a). Section 218 does not 

expressly state that it was intended to partially repeal section 8E of the

IG Act, and in our view, it is implausible to construe it as having done so 

implicitly. See infra p. 96 (discussing strong presumption against implied 

repeals in appropriations acts). Moreover, such a reading would be inconsistent, rather than “consistent,” with the “plain language of” other 
39 Op. O.L.C. 12 (2015)

94

parts of the IG Act, and thus would fail to make sense of section 218 as a 

whole. See, e.g., Food & Drug Admin. v. Brown & Williamson Tobacco 

Corp., 529 U.S. 120, 133 (2000) (“A court must . . . interpret the statute 

as a symmetrical and coherent regulatory scheme and fit, if possible, all 

parts into an harmonious whole.” (citations and internal quotation marks 

omitted)). It is thus unsurprising that OIG does not advance this reading. 

See OIG 2015 E-mail (stating that section 8E is an “express limitation” 

within the meaning of section 218).

Under the second potential interpretation, an “express limitation of section 6(a)” would be one that expressly referred to disclosures to OIG, 

although not specifically to section 6(a). On this reading, Department 

officials could withhold information under section 8E, which expressly 

addresses disclosures to OIG. See 5 U.S.C. app. § 8E. But they would be 

foreclosed from withholding information from OIG pursuant to Title III, 

Rule 6(e), and section 626, because these provisions contain no express 

reference to OIG. This is not the most natural reading of section 218’s 

text: the phrase “in accordance with an express limitation of section 6(a) 

of the [IG Act]” is not easily read to mean “in accordance with a limitation that expressly addresses disclosures to OIG under the IG Act.” 

Nonetheless, given that section 6(a) is the principal provision in the IG 

Act that governs disclosures to OIG, we believe this reading is permissible. Further, while the Explanatory Statement and Senate Report accompanying section 218 do not specifically endorse this interpretation, it 

arguably gains plausibility from the fact that, as OIG observes, the Department’s Inspector General testified before the relevant Senate appropriations subcommittee several months before the rider was enacted, 

objecting to the Department’s failure to grant OIG direct access to materials protected by Title III, Rule 6(e), and section 626. See The Department 

of Justice’s Fiscal Year 2015 Budget Request: Hearing Before the Subcomm. on Commerce, Justice, Sci. & Related Agencies of the S. Comm. on 

Appropriations, 113th Cong. 7–8 (2014) (statement of Michael E. Horowitz, Inspector Gen., Dep’t of Justice). But see Regan v. Wald, 468 U.S. 

222, 237 (1984) (expressing “grave doubts” about the interpretive value 

of “[o]ral testimony of witnesses and individual Congressmen, unless very 

precisely directed to the intended meaning of particular words in a statute”).
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Under the third potential interpretation of the rider, an “express limitation of section 6(a)” would include any explicit statutory nondisclosure 

provision that, properly construed, operated to prevent disclosure of 

material that OIG could otherwise obtain under section 6(a). This reading of section 218 would permit withholding not only pursuant to section

8E, but also pursuant to Title III, Rule 6(e), and section 626. The reading 

is reasonably grounded in statutory text. Statutes like Title III, Rule 6(e), 

and section 626 can be considered “limitations of section 6(a)” in that 

they supersede section 6(a) in situations where both section 6(a) and one 

of those statutes would apply. See supra Part III.B. They can be considered “express” limitations, in that they explicitly contemplate, in statutory 

text, nondisclosure in the circumstances they address. And for the reasons 

we have explained above, reading these statutory provisions to limit 

disclosures under section 6(a)(1) is “consistent with the plain language 

of ” the IG Act, as construed using standard tools of statutory interpretation. See supra Part III.B. 

In our view, although both the second and third interpretations of section 218 are plausible, the third is more appropriate in light of the relevant 

principles of statutory interpretation. As discussed in Part III above, in 

order to override the specific withholding provisions in Title III, Rule 

6(e), and section 626, section 218 would need to contain a clear congressional statement that it was intended to have that effect. OIG appears to 

contend that the phrase “unless in accordance with an express limitation 

of section 6(a) of the [IG Act], consistent with the plain language of the 

[Act],” clearly means that all materials must be disclosed to OIG absent 

express language establishing that the materials need not be turned over. 

But as we have discussed, this interpretation requires reading unstated 

limitations into the rider’s text, since (as OIG concedes) section 218’s 

reference to an “express limitation of section 6(a)” encompasses section

8E, a limitation that does not expressly refer to section 6(a). Moreover, as 

was also noted above, this phrase may plausibly be read to permit Department officials to withhold Title III, Rule 6(e), and section 626 information if OIG does not qualify to receive it under one of those statutes’ 

exemptions. Because the phrase is susceptible to alternative interpretations, one of which would permit withholding under Title III, Rule 6(e), 

and section 626, it does not constitute a sufficiently clear statement to 
39 Op. O.L.C. 12 (2015)

96

override the limitations on disclosure imposed by those statutes. See supra

Part III.

Furthermore, it is significant that section 218 appears in an appropriations act that post-dates the provisions in Title III, Rule 6(e), and section 

626 of FCRA. The Supreme Court has long held that a later statute will 

not be read to repeal an earlier one, even in part, unless Congress’s 

intent to repeal the earlier statute with the later one is “clear and manifest.” Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 

644, 662–63 (2007) (internal quotation marks omitted); see Tenn. Valley 

Auth. v. Hill, 437 U.S. 153, 189 (1978) (refusing to read an appropriations act as overriding the Endangered Species Act “insofar as it applies 

to the Tellico Project” absent “‘clear and manifest’” evidence); Posadas 

v. Nat’l City Bank of N.Y., 296 U.S. 497, 501, 504 (1936) (declining to 

read a statute as overriding the Federal Reserve Act of 1913 “in so far as 

the Philippine Islands are concerned” unless such a reading was a “necessary” implication). This principle applies “with even greater force 

when the claimed repeal rests solely on an Appropriations Act,” because 

“legislators are entitled to operate under the assumption that the funds 

will be devoted to purposes which are lawful and not for any purpose 

forbidden,” and because Congress’s own rules “expressly prohibit[]” 

substantive changes to existing law in appropriations bills. Hill, 437 

U.S. at 190–91; see Rules of the House of Representatives, 114th Cong., 

R. XXI(2)(b) (2011) (“A provision changing existing law may not be 

reported in a general appropriation bill[.]”). Accordingly, there is a 

“very strong presumption” that appropriations measures do not “amend 

substantive law,” a presumption that may be overcome only by “unambiguous[]” evidence to the contrary. Calloway v. Dist. of Columbia, 216 

F.3d 1, 9 (D.C. Cir. 2000).

We do not believe this presumption is overcome with respect to section

218. The rider’s text does not mention Title III, Rule 6(e), or section 626, 

nor does it state that the provision is intended to amend existing statutes 

in any way. Cf. Am. Fed’n of Gov’t Emps., AFL-CIO v. Campbell, 659 

F.2d 157, 161 (D.C. Cir. 1980) (finding implied repeal where an appropriations act made an “express reference to the earlier statute”). As far as we 

are aware, the only statements in the legislative history concerning the 

rider explain that it “is designed to improve OIG access to Department 

documents and information,” 160 Cong. Rec. H9345 (daily ed. Dec. 11, 
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97

2014) (explanatory statement submitted by Rep. Rogers), and that it 

“requires the Department to provide documents to the Inspector General 

that are necessary as part of audits and investigations,” S. Rep. No. 113-

181, at 103 (2014). But both these goals would be advanced by all the 

readings we have discussed, including the reading under which section

218 does not implicitly repeal Title III, Rule 6(e), and section 626. Cf.

Nat’l Treasury Emps. Union v. Devine, 733 F.2d 114, 120 (D.C. Cir. 

1984) (finding implied repeal of personnel regulations where “Congress 

expressly stated [in the legislative history] that it wished to prevent the 

effectuation” of the policies set forth in those regulations). Although 

interpreting section 218 to permit the Department to withhold materials 

under the provisions of Title III, Rule 6(e), and section 626 would not 

expand the scope of records available to OIG, it would help ensure that 

the Department complied with the terms of the IG Act by requiring it to 

grant OIG access in a “timely” manner; by obligating OIG to promptly 

report incidents of noncompliance to the appropriations committees; and 

by adding the possibility of Anti-Deficiency Act consequences for failure 

to comply. On this interpretation, the purpose of section 218 would be to 

reaffirm and reinforce the existing disclosure requirements in the IG Act.

We acknowledge that OIG’s broader reading of the rider is also plausible, and consonant with events surrounding its enactment. But the presumption against implied repeals requires not just that a reading constituting an implied repeal be more natural, or that it draw support from 

comments in the legislative record, but that it be “unambiguous[],” Calloway, 216 F.3d at 9; “clear and manifest,” Nat’l Ass’n of Home Builders,

551 U.S. at 662 (internal quotation marks omitted); or “necessary,” Posadas, 296 U.S. at 504. As we have explained, because section 218 can also 

reasonably be read to permit the Department to continue to abide by the 

“express limitations” on disclosure in Title III, Rule 6(e), and section 626, 

OIG’s interpretation is not compelled by the text; hence, the rider does not 

offer “unambiguous” evidence that Congress intended to partially repeal 

existing statutory prohibitions on disclosure. Calloway, 216 F.3d at 9. In 

light of the “very strong” presumption against implied repeals in appropriations acts, id., and the other interpretive principles we have identified, 

we believe section 218 is best read to permit adherence to the disclosure 

restrictions in Title III, Rule 6(e), and section 626. 
39 Op. O.L.C. 12 (2015)

98

V.

For the foregoing reasons, we conclude that Title III, Rule 6(e), and 

section 626 permit the Department to disclose certain statutorily protected 

information to OIG in certain circumstances. We further conclude that to 

the extent those statutes prohibit disclosure of such information, neither 

the IG Act nor section 218 permits the Department to disclose it.

KARL R. THOMPSON

Principal Deputy Assistant Attorney General

Office of Legal Counsel