39

Effect of Appropriations Rider on Access of DOJ 

Inspector General to Certain Protected Information

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

Act, 2016, effectively prohibits the Department of Justice, for the remainder of fiscal 

year 2016, from denying the Department’s Office of the Inspector General (“OIG”) 

timely access to materials requested by OIG, or preventing or impeding OIG’s access 

to such materials, pursuant to 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; or section 626 of the Fair Credit Reporting Act. As a result, the Department 

may (and must) disregard the limitations in those statutes in making disclosures to OIG 

for the remainder of the fiscal year.

April 27, 2016

MEMORANDUM OPINION FOR THE 

DEPUTY ATTORNEY GENERAL

You have asked us to clarify the authority of the Department of Justice 

(the “Department”) to disclose certain statutorily protected materials to its 

Office of the Inspector General (“OIG”) in light of the enactment of the 

Commerce, Justice, Science, and Related Agencies Appropriations Act, 

2016, Pub. L. No. 114-113, div. B, 129 Stat. 2242, 2286 (2015) (“CJS 

Appropriations Act”). 1 In particular, you have asked whether the Department may, in light of that Act, disclose to OIG material protected from 

disclosure 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)”); or section 626 of the Fair Credit Reporting Act, 15 U.S.C.

§ 1681u (“FCRA”). As relevant, section 540 of the CJS Appropriations 

Act provides that the Department may not use fiscal year 2016 funds “to 

 1 See E-mail for Karl R. Thompson, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Carlos Uriarte, Associate Deputy Attorney General, Re: 

Request for OLC Opinion (Mar. 9, 2016, 5:16 PM). We requested the views of several 

potentially affected entities, and received the views of OIG and the National Aeronautics 

and Space Administration (“NASA”). See E-mail for John E. Bies, Deputy Assistant 

Attorney General, Office of Legal Counsel, from William M. Blier, General Counsel, 

OIG, Re: Solicitation of Views, att. (Mar. 23, 2016, 6:11 PM); E-mail for John E. Bies, 

Deputy Assistant Attorney General, Office of Legal Counsel, from David G. Barrett, 

Associate General Counsel, NASA, Re: Solicitation of Views (Apr. 6, 2016, 9:41 AM).
40 Op. O.L.C. 39 (2016)

40

deny [its] Inspector General . . . timely access to any records, documents, 

or other materials available to the [D]epartment . . . , or to prevent or 

impede that Inspector General’s access to such records, documents, or 

other materials, under any provision of law, except a provision of law that 

expressly refers to the Inspector General and expressly limits the Inspector General’s right of access.” CJS Appropriations Act § 540, 129 Stat. at 

2332. For the reasons set forth below, we conclude that this provision has 

the effect of barring the Department, for the remainder of fiscal year 

2016, from denying OIG timely access to requested materials pursuant to 

Title III, Rule 6(e), or section 626 of FCRA, or from preventing or impeding OIG’s access to such materials. As a result, the Department may (and 

must) disregard the limitations in those statutes in making disclosures to 

OIG for the remainder of the fiscal year.

I.

We begin with the relevant statutory background and governing legal 

principles. With the exception of the subsequently enacted CJS Appropriations Act, these statutes and principles are discussed in depth in this 

Office’s recent opinion, Access of Department of Justice Inspector General to Certain Information Protected from Disclosure by Statute, 39 Op. 

O.L.C. 12 (2015) (“IG Access”). 

The Inspector General Act of 1978, 5 U.S.C. app. (“IG Act”), established an Office of Inspector General in a large number of federal agencies. 5 U.S.C. app. §§ 2(A), 8G(a)–(b), 12(2). In 1988, Congress extended 

that Act to the Department and established OIG. See Inspector General 

Act Amendments of 1988, Pub. L. No. 100-504, § 102(c), (f), 102 Stat. 

2515, 2515, 2520–21 (codified as amended at 5 U.S.C. app. §§ 8E, 12(1)–

(2)). The IG Act grants inspectors general several authorities with respect 

to the agencies within which their offices are established, including, in 

section 6(a)(1), the authority “to have access to all records, reports, audits, 

reviews, documents, papers, recommendations, or other material available 

to the applicable establishment which relate to programs and operations 

with respect to which that Inspector General has responsibilities under 

this Act.” 5 U.S.C. app. § 6(a)(1). Section 8E of the Act qualifies this 

authority in certain circumstances, providing that the Attorney General 

may “prohibit the Inspector General from carrying out or completing any 

audit or investigation, or from issuing a subpoena . . . if the Attorney 
Effect of Appropriations Rider on Access of DOJ Inspector General to Information

41

General determines that such prohibition is necessary to prevent the 

disclosure” of certain sensitive materials. Id. § 8E(a)(2). On its face, the 

IG Act thus “requires the Department to disclose ‘all’ materials [requested 

by OIG] 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.” IG Access, 39 Op. O.L.C. at 20.

As we explained in our IG Access opinion, however, the IG Act is “not 

in all circumstances the only statute that governs OIG’s access to Department materials.” Id. at 19. The three statutes about which you have 

asked—Title III, Rule 6(e), and FCRA—also govern access, including 

OIG’s access, to certain highly sensitive Department materials. Title III 

provides that an investigative or law enforcement officer “violat[es]” the 

law by “willful[ly] disclos[ing]” the contents of a lawfully intercepted 

wire, oral, or electronic communication “beyond the extent permitted by” 

Title III. 18 U.S.C. § 2520(g). Rule 6(e) provides that “attorney[s] for the 

government” and other persons “must not disclose a matter occurring 

before [a] grand jury”—such as testimony that witnesses have delivered in 

confidential grand jury proceedings—except pursuant to a specific exception. Fed. R. Crim. P. 6(e)(2)(B). And section 626 of FCRA states that the 

Federal Bureau of Investigation (“FBI”) “may not disseminate” consumer 

information obtained pursuant to a National Security Letter—which may 

include private banking and credit information collected from credit 

agencies, frequently without the consumer’s knowledge—except under 

two enumerated exceptions. 15 U.S.C. § 1681u(g).

These statutes permit Department officials to disclose covered materials to OIG in “most, but not all, of the circumstances in which OIG might 

request [them].” IG Access, 39 Op. O.L.C. at 15; see id. at 21–69 (examining each statute in detail to identify the circumstances in which it permits disclosure to OIG). In particular, Title III and Rule 6(e) allow Department officials to disclose the contents of intercepted communications 

and grand jury materials to OIG in connection with any OIG investigation 

or review that relates to the Department’s criminal law enforcement 

activities, and section 626 of FCRA allows the FBI to disclose protected

consumer information to OIG if the disclosure could assist in the approval 

or conduct of foreign counterintelligence investigations. See id. at 68. But 

the statutes do not permit disclosures that “have either an attenuated or no 
40 Op. O.L.C. 39 (2016)

42

connection” with the Department’s criminal law enforcement activities, or 

the approval or conduct of foreign counterintelligence investigations. Id.

at 68. Accordingly, if OIG were to request access to protected materials in 

one of those limited circumstances in which Title III, Rule 6(e), or section 

626 prohibits their disclosure, Department officials would face potentially 

conflicting statutory commands. On the one hand, the IG Act states that 

Department officials must grant OIG access to “all materials” that OIG 

requests and that fall within OIG’s investigative jurisdiction; on the other 

hand, Title III, Rule 6(e), and section 626 state, respectively, that officials 

would “violat[e]” the law by disclosing, “must not disclose,” or “may not 

disseminate” the requested materials. See id. at 19–20.

In our IG Access opinion, we resolved this conflict by applying two 

well-established legal principles. First, we observed that “in a range of 

contexts . . . 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.” Id. at 70. The Court and this Office had previously concluded 

that this principle required a clear statement before a statute could be 

construed to authorize the disclosure of information protected by Rule 

6(e) or Title III—i.e., confidential material (such as witness testimony) 

developed in the course of grand jury proceedings, or the contents of 

private communications lawfully wiretapped by the government. Id. at 

70–71. And we concluded in the IG Access opinion that “the logic of 

these opinions . . . extends to section 626 of FCRA” as well, given the 

“strict duty of confidentiality” and the “penalties for improper disclosure” 

imposed by section 626, as well as the “highly sensitive” nature of the 

information section 626 protects—i.e., private consumer banking and 

credit information obtained by the FBI from credit agencies, frequently 

without the consumer’s knowledge. Id. at 73.

Second, we invoked the “rule of relative specificity,” which 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.’” Id. at 74 (alterations in original) (quoting 

Morton v. Mancari, 417 U.S. 535, 550–51 (1974)). Title III, Rule 6(e), 

and section 626 of FCRA “address with greater specificity” than the IG 

Act “the type of information they regulate,” “the precise conditions under 
Effect of Appropriations Rider on Access of DOJ Inspector General to Information

43

which disclosure” is permitted, and “the lawful recipients of information.”

Id. at 76–77. Accordingly, we concluded that, like the clear statement 

principle pertaining to highly sensitive information, the rule of relative 

specificity “require[d] a clear statement” before it could be inferred that 

“the general right of access granted by section 6(a)(1) [of the IG Act] 

takes precedence over the specific, carefully delineated limits on disclosure Congress set forth in” Title III, Rule 6(e), and section 626. Id. at 78.

Applying these two principles, we concluded that the IG Act does not 

contain such a clear statement. Id. at 79. The Act, we observed, “does not 

mention” any of the three withholding statutes, or 

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. 

Id. at 79–80 (citing Brady Act Implementation Issues, 20 Op. O.L.C. 57, 

62 (1996)). Although the IG Act grants inspectors general a right “to have 

access to all records” available to their respective agencies and within 

their investigative jurisdiction, the Supreme Court and this Office have 

repeatedly concluded that “‘expansive modifiers’” like “all” and “any” do 

not, on their own, supply the kind of clear statement needed to overcome 

competing interpretive presumptions. Id. at 81 (quoting Ali v. Fed. Bureau 

of Prisons, 552 U.S. 214, 220 n.4 (2008)); see id. at 81–82. And while we 

found “‘plausible’” OIG’s contention that certain language in section 

6(b)(1) of the IG Act “implies that Congress intended access under section 6(a)(1) to be ‘automatic’ and free of any ‘existing statutory restriction[s],’” we ultimately concluded that the “negative inference” that 

OIG identified was not “unequivocal enough to establish a clear manifestation of congressional intent,” id. at 83–84, particularly in light of a 

statement in the Act’s Senate report that each inspector general’s right of 

access would be “‘subject, of course, to the provisions of other statutes, 

such as the Privacy Act,’” id. at 86 (emphasis omitted) (quoting S. Rep. 

No. 95-1071, at 33–34 (1978)).
40 Op. O.L.C. 39 (2016)

44

Our IG Access opinion also considered whether an appropriations rider 

in the Consolidated and Further Continuing Appropriations Act, 2015, 

Pub. L. No. 113-235, 128 Stat. 2130 (2014) (“2015 Appropriations Act”), 

granted OIG access to information otherwise protected from disclosure by 

Title III, Rule 6(e), or section 626 of FCRA. Section 218 of the 2015 

Appropriations Act stated:

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 

of Justice shall report to the Committees on Appropriations within 

five calendar days any failures to comply with this requirement.

Id. § 218, 128 Stat. at 2200. We acknowledged that OIG had made “substantial” arguments that this rider required the Department to grant it 

access to materials otherwise protected by Title III, Rule 6(e), and section 

626. IG Access, 39 Op. O.L.C. at 92. But we ultimately concluded that the 

rider did not override Title III, Rule 6(e), and section 626 in the limited 

circumstances in which those statutes bar OIG’s access to protected information.

We began our analysis of section 218 by observing that there were “at 

least three conceivable constructions of the phrase ‘express limitation of 

section 6(a) of the Inspector General Act.’” Id. at 93. First, this phrase 

could be interpreted to prohibit Department officials from denying OIG 

access to materials except under “limitations” on OIG’s access that “appear in section 6(a) itself or that expressly refer to that section”—a reading that would have barred the Department from withholding materials 

from OIG under Title III, Rule 6(e), or section 626 of FCRA, as well as 

under section 8E of the IG Act itself. Id. Second, the provision could be 

interpreted—as OIG proposed—to refer to “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).” Id. This reading 

would have permitted the Department to withhold records under section 
Effect of Appropriations Rider on Access of DOJ Inspector General to Information

45

8E, but not under Title III, Rule 6(e), or section 626. Third, the provision 

could be interpreted to “encompass all ‘express’ [statutory] limitations on 

disclosure that . . . are properly deemed to function as ‘limitation[s] of 

section 6(a).’” Id. Under this reading, the Department would be permitted 

to withhold information under Title III, Rule 6(e), and section 626, as well 

as section 8E of the IG Act. See id.

We concluded that the first interpretation, although a natural reading of 

the phrase “express limitation of section 6(a),” was untenable. As noted 

above, this reading would have meant that the rider had implicitly repealed (among other things) section 8E of the IG Act itself, a provision 

that “does not refer explicitly to section 6(a).” Id. We thought that result 

implausible in light of the “strong presumption against implied repeals in 

appropriations acts,” and because other parts of the rider made clear that it 

was intended to be consistent with the plain language of the Inspector 

General Act. Id.

Having found this natural reading of section 218’s key phrase untenable, we went on to consider the second and third readings we had identified. The second interpretation, we noted, required reading the phrase “in 

accordance with an express limitation of section 6(a) of the [IG Act]” to 

mean “in accordance with a limitation that expressly addresses disclosures 

to OIG under the IG Act.” Id. at 94. Although “not the most natural reading of section 218’s text,” this reading was in our view plausible because 

“section 6(a) is the principal provision in the IG Act that governs disclosures to OIG.” Id. The third reading was likewise “reasonably grounded in 

the statutory text.” Id. at 95. “Statutes like Title III, Rule 6(e), and section 

626” of FCRA, we explained, “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.” Id. And they can be 

considered “express” limitations because “they explicitly contemplate . . .

nondisclosure in the circumstances they address”—as opposed to, for 

example, general statutory provisions that implicitly authorize an agency 

to withhold information, or agency practices grounded in regulations or 

other non-statutory authorities. Id.

Although we thought that both the second and the third readings of section 218 were plausible, we concluded that the third was more consistent 

with the relevant principles of statutory interpretation. We noted that, in 

order to override the limitations on disclosure imposed by Title III, Rule 
40 Op. O.L.C. 39 (2016)

46

6(e), and section 626 of FCRA, section 218 would—consistent with the 

principles we had discussed earlier—need to “contain a clear congressional statement that it was intended to have that effect.” Id. And while 

the second reading of the phrase “express limitation of section 6(a)” was 

“consonant with” certain “events surrounding [the rider’s] enactment,” id.

at 97, it did not follow clearly from the phrase’s plain language, but rather 

“require[d] reading unstated limitations into the rider’s text,” id. at 95. 

Further, as noted above, the phrase “express limitation of section 6(a)” 

was also susceptible to another plausible reading—the third reading—that 

allowed information to be withheld pursuant to Title III, Rule 6(e), and 

section 626. As a result, that phrase did not in our view “constitute a 

sufficiently clear statement to override the limitations on disclosure imposed by those statutes.” Id.

This conclusion was reinforced by the fact that “section 218 appear[ed] 

in an appropriations act that post-dates the provisions in Title III, Rule 

6(e) and section 626 of FCRA.” Id. at 95–96. “[T]here 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.” Id. at 96 (second alteration in original) (quoting 

Calloway v. Dist. of Columbia, 216 F.3d 1, 9 (D.C. Cir. 2000)); see Tenn. 

Valley Auth. v. Hill, 437 U.S. 153, 189–91 (1978). We did not find such 

evidence in section 218, given that it did not “mention Title III, Rule 6(e), 

or section 626” or “state that the provision [was] intended to amend 

existing statutes in any way.” IG Access, 39 Op. O.L.C. at 96. We also 

noted that the drafters’ general statement that section 218 was “‘designed 

to improve OIG access to Department documents and information’” was 

consistent with all of the readings we had considered, including the third 

reading, under which the rider functioned to “reaffirm and reinforce” the 

existing disclosure requirements in the IG Act by adding timeliness and 

reporting requirements, and adding the possibility of Anti-Deficiency Act 

consequences for failure to make required disclosures. Id. at 96–97 (quoting 160 Cong. Rec. H9345 (daily ed. Dec. 11, 2014)).

Several months after we issued the IG Access opinion, Congress enacted the Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, 129 

Stat. 2242 (Dec. 18, 2015). Division B of that statute, the CJS Appropriations Act, appropriates funds to the Department of Justice and OIG, 

as well as several additional entities, “for the fiscal year ending Sep-
Effect of Appropriations Rider on Access of DOJ Inspector General to Information

47

tember 30, 2016,” commonly referred to as fiscal year 2016. CJS Appropriations Act § 5, 129 Stat. at 2244; see id. tit. II, 129 Stat. at 2296. Section 540 of the CJS Appropriations Act provides:

No funds provided in this Act shall be used to deny an Inspector 

General funded under this Act timely access to any records, documents, or other materials available to the department or agency over 

which that Inspector General has responsibilities under the Inspector 

General Act of 1978, or to prevent or impede that Inspector General’s access to such records, documents, or other materials, under 

any provision of law, except a provision of law that expressly refers 

to the Inspector General and expressly limits the Inspector General’s 

right of access. A department or agency covered by this section shall 

provide its Inspector General with access to all such records, documents, and other materials in a timely manner. Each Inspector General shall ensure compliance with statutory limitations on disclosure 

relevant to the information provided by the establishment over which 

that Inspector General has responsibilities under the Inspector General Act of 1978. Each Inspector General covered by this section 

shall report to the Committees on Appropriations of the House of 

Representatives and the Senate within 5 calendar days any failures to 

comply with this requirement.

Id. § 540, 129 Stat. at 2332. In a joint explanatory statement, the statute’s 

drafters explained simply that “[s]ection 540 requires agencies funded by 

the Act to provide Inspectors General with timely access to information.”

161 Cong. Rec. H9745 (daily ed. Dec. 17, 2015); see Consolidated Appropriations Act, 2016 § 4, 129 Stat. at 2244 (stating that this explanatory 

statement “shall have the same effect . . . as if it were a joint explanatory 

statement of a committee of conference”).

II.

As we explained in the IG Access opinion (and as discussed above), an 

appropriations act may be construed to override the limitations on disclosure contained in Title III, Rule 6(e), and section 626 of FCRA only if the 

act contains a “‘clear’” and “‘unambiguous[]’” statement that Congress 

intended it to have that effect. IG Access, 39 Op. O.L.C. at 97; supra 

pp. 45–46. We conclude that section 540 of the CJS Appropriations Act 
40 Op. O.L.C. 39 (2016)

48

contains such a clear and unambiguous statement, and therefore that it 

effectively bars the Department from withholding materials from OIG 

pursuant to Title III, Rule 6(e), or section 626 for the remainder of fiscal 

year 2016. As a result, the Department may (and must) disregard the 

limitations in those statutes in making disclosures to OIG during the 

remainder of that year. 

To start, there is no question that section 540 on its face imposes a restriction on the Department’s use of fiscal year 2016 funds to deny, prevent, or impede OIG’s access to Department materials. The first part of 

that provision states that “[n]o funds provided in this Act shall be used” to 

deny, prevent, or impede the access of “an Inspector General funded 

under this Act” to materials “available to the department or agency over 

which the Inspector General has responsibilities under the Inspector 

General Act of 1978.” The “Act” referred to in section 540 is the CJS 

Appropriations Act, which appropriates funds both to the Department 

generally and to OIG specifically for fiscal year 2016. See Consolidated 

Appropriations Act, 2016 § 3, 129 Stat. at 2244 (“Except as expressly 

provided otherwise, any reference to ‘this Act’ contained in any division 

of this Act shall be treated as referring only to the provisions of that 

division.”); CJS Appropriations Act tit. II, 129 Stat. at 2296, 2297 (appropriating funds to “the Department of Justice,” including $93,709,000 

“[f]or necessary expenses of the Office of Inspector General”). And the 

Department of Justice is the “department . . . over which” OIG has responsibilities under the IG Act. See 5 U.S.C. app. §§ 4(a), 8E(b). Section 

540 thus prohibits the Department from using any “funds provided in [the 

CJS Appropriations Act]” to deny, prevent, or impede OIG’s access to 

materials “available to the [D]epartment.” 

It is likewise clear that the plain language of this funding restriction 

bars the Department from using fiscal year 2016 funds to withhold materials from OIG pursuant to Title III, Rule 6(e), or section 626 of FCRA. 

Section 540 states that the Department may not use fiscal year 2016 funds 

to deny [OIG] timely access to any records, documents, or other materials available to the [D]epartment . . . , or to prevent or impede 

[OIG’s] access to such records, documents, or other materials, under 

any provision of law, except a provision of law that expressly refers 

to the Inspector General and expressly limits the Inspector General’s 

right of access. 
Effect of Appropriations Rider on Access of DOJ Inspector General to Information

49

CJS Appropriations Act § 540 (emphasis added). Title III, Rule 6(e), and 

section 626 are plainly “provision[s] of law.” See, e.g., Republic of Iraq v. 

Beaty, 556 U.S. 848, 856 (2009) (stating that a federal statute is “indisputably” a “provision of law”); Fund for Constitutional Gov’t v. Nat’l 

Archives & Records Serv., 656 F.2d 856, 867 (D.C. Cir. 1981) (stating 

that Rule 6(e) is “by any definition . . . a statute”). By withholding materials pursuant to any of those provisions, the Department would be “deny[ing]” or “prevent[ing]” access “under” such provisions. See, e.g., 

Webster’s New World College Dictionary 1574 (5th ed. 2014) (defining 

“under” in similar context to mean “because of”); Berghuis v. Thompkins, 

560 U.S. 370, 390 (2010) (referring to “deny[ing] writs of habeas corpus 

under [28 U.S.C.] § 2254” (emphasis added)); IG Access, 39 Op. O.L.C.

at 95 (referring to “withholding under Title III, Rule 6(e), and section 

626” (emphasis added)). And Rule 6(e) and section 626 do not “refer to[]” 

inspectors general at all, let alone “expressly limit[]” their access, while 

the sole provision of Title III that refers to inspectors general does not 

impose any limit on their right of access. See 18 U.S.C. § 2520(f) (requiring the head of a department or agency to “notify the Inspector General 

with jurisdiction over the department or agency” if the head determines 

that disciplinary action is not warranted for a violation of Title III, and to 

“provide the Inspector General with the reasons for such determination”).

Furthermore, by prohibiting the Department from using fiscal year 

2016 funds to withhold materials pursuant to Title III, Rule 6(e), or 

section 626 of FCRA, the appropriations rider effectively prohibits the 

Department from withholding materials pursuant to those statutes for the 

remainder of fiscal year 2016. This is because in order to withhold 

materials from OIG during fiscal year 2016, the Department would 

invariably need to use funds appropriated by the CJS Appropriations 

Act—if nothing else, because withholding would take time for which a 

Department employee would be compensated by the CJS Appropriations 

Act, or entail the use of resources (such as electricity, paper, or a computer) funded by the Act. See CJS Appropriations Act tit. II, 129 Stat. at 

2296 (appropriating funds for “salaries and expenses”); McHugh v. 

Rubin, 220 F.3d 53, 57 (2d Cir. 2000) (“Even the simple act . . . of processing applications in accordance with a straightforward categorical rule 

(for example, ‘all applications shall be denied’) would involve the use of 

appropriated funds.”); Env’t Def. Ctr. v. Babbitt, 73 F.3d 867, 871–72 
40 Op. O.L.C. 39 (2016)

50

(9th Cir. 1995) (“The use of any government resources—whether salaries, employees, paper, or buildings—to accomplish a final listing would 

entail government expenditure.”). 2 And incurring an obligation of appropriated funds to withhold covered materials might well violate not 

only section 540 but also the Anti-Deficiency Act, 31 U.S.C. § 1341 et 

seq., a statute that subjects federal officers and employees who expend 

or obligate funds in excess of appropriated amounts to administrative 

and, in the case of knowing and willful violations, criminal penalties. 

See id. §§ 1341(a), 1349(a), 1350; Applicability of the Antideficiency Act 

to a Violation of a Condition or Internal Cap Within an Appropriation, 

25 Op. O.L.C. 33, 35 (2001) (concluding that “when Congress has 

expressly prohibited the expenditure of any funds for a particular purpose” within an appropriation, a violation of that condition “would 

generally constitute a violation of the Antideficiency Act”).

Moreover, for at least three reasons, we believe section 540’s prohibition on using fiscal year 2016 funds to withhold these materials from 

 2 We recognize that funds that are not “provided in” the CJS Appropriations Act, such 

as funds held over from a previous fiscal year, are not subject to section 540. CJS Appropriations Act § 540. And it is possible that some Department employees with custody of 

materials OIG requests might be paid with such funds. However, we understand that the 

vast majority of the Department’s salaries and operations are funded by annual appropriations. See, e.g., id. tit. II (appropriating funds for, among other things, “Salaries and 

Expenses” for “General Administration,” the United States Parole Commission, “General 

Legal Activities,” the Antitrust Division, United States Attorneys, the Foreign Claims 

Settlement Commission, the Community Relations Service, the United States Marshals 

Service, the National Security Division, the FBI, the Drug Enforcement Administration, 

the Bureau of Alcohol, Tobacco, Firearms, and Explosives, and the Federal Prison 

System). We further understand that these annually appropriated salaries include the 

salaries of supervisory and senior leadership officials who have general authority to 

obtain access to materials related to matters they supervise, and, in light of section 540, 

the authority and obligation to obtain such access in order to disclose requested materials 

to OIG without regard to the restrictions in Title III, Rule 6(e), or section 626 of FCRA. 

See id.; 28 U.S.C. §§ 509, 510; see also 5 U.S.C. § 301. Thus, even if OIG requested 

materials from the Department in the narrow circumstances in which such materials are 

protected from disclosure to OIG by Title III, Rule 6(e), or section 626, and even if none 

of the Department employees with custody of those materials were paid with fiscal year 

2016 funds or used resources supported by such funds to process the request, OIG’s 

request could always be elevated to a supervisory official who was paid with fiscal year 

2016 funds and had the authority to obtain and disclose the materials notwithstanding the 

restrictions in Title III, Rule 6(e), or section 626. 
Effect of Appropriations Rider on Access of DOJ Inspector General to Information

51

OIG—unlike the analogous provisions in the IG Act or section 218 of the 

2015 Appropriations Act—is “‘clear’” and “‘unambiguous[],’” and therefore satisfies the clear statement rules described in our IG Access opinion.

IG Access, 39 Op. O.L.C. at 83, 95, 97. First, in our view, the only plausible construction of section 540 is that it forbids the use of fiscal year 2016 

funds to withhold materials from OIG pursuant to Title III, Rule 6(e), or 

section 626 of FCRA. As just discussed, section 540 states that the Department may not use such funds to withhold materials from OIG “under 

any provision of law” except a provision that expressly limits inspector 

general access, and under no reasonable construction does that language 

permit the Department to use fiscal year 2016 funds to withhold materials 

under Title III, Rule 6(e), or section 626. Thus, unlike section 218 of the 

2015 Appropriations Act, section 540 is not “susceptible to alternative 

interpretations, one of which would permit withholding under Title III, 

Rule 6(e), and section 626,” and it therefore cannot be construed in a 

manner consistent with those statutes. Id. at 95; see The Last Best Beef, 

LLC v. Dudas, 506 F.3d 333, 339 (4th Cir. 2007) (stating that where an 

appropriations rider is “in absolute contradiction with” an earlier-enacted 

statute, and an agency “simply cannot comply simultaneously” with both 

enactments, the agency is “bound to follow Congress’s last word on the 

matter even in an appropriations law” (internal quotation marks omitted)).

Second, unlike both section 218 and the IG Act, section 540 expressly 

“address[es] potential conflicts with other statutory confidentiality provisions.” IG Access, 39 Op. O.L.C. at 80; see id. at 96. It specifies that the 

Department may not use fiscal year 2016 funds to “deny [OIG] timely 

access . . . under any provision of law,” subject to one exception. CJS 

Appropriations Act § 540. That language is similar to statutory grants of 

access “notwithstanding any other law” that we have previously found 

sufficient, at least in some circumstances, to override competing limitations on disclosure. See, e.g., Brady Act Implementation Issues, 20 Op. 

O.L.C. at 62 (stating that the Brady Act’s grant of access “notwithstanding any other law” overrides the limitations on disclosure found in the 

Privacy Act); IG Access, 39 Op. O.L.C. at 79–80. And it confirms that 

Congress specifically intended to override other statutory limitations, and 

did not merely countermand them inadvertently through broad language.

Cf. Ali, 552 U.S. at 220 n.4 (noting that “circumstances may counteract 

the effect of expansive modifiers” like “all” and “any”); Hill, 437 U.S. at 
40 Op. O.L.C. 39 (2016)

52

190 (explaining that the presumption against implied repeals applies with 

special force to appropriations acts because otherwise “every appropriations measure would be pregnant with prospects of altering substantive 

legislation” and legislators would be required “to review exhaustively the 

background of every authorization before voting on an appropriation”).

Third, section 540 sets forth only one circumstance in which it would 

permit the Department to use fiscal year 2016 funds to withhold materials 

from OIG: where a provision of law “expressly refers to the Inspector 

General and expressly limits the Inspector General’s right of access.” CJS 

Appropriations Act § 540. That narrow exception would be largely superfluous if section 540 did not otherwise prohibit the Department from 

using such funds to withhold (and thus, in effect, bar the Department from 

withholding) materials available to the Department pursuant to statutory 

provisions. And the inclusion of this one exception implies that Congress 

did not intend to allow others. See, e.g., Hill, 437 U.S. at 188 (stating that 

because Congress “create[d] a number of limited ‘hardship exemptions’” 

to the Endangered Species Act, “we must presume that these were the 

only ‘hardship cases’ Congress intended to exempt”); cf. IG Access, 39 

Op. O.L.C. at 83–84 (describing as “plausible” OIG’s argument that the 

IG Act overrode other statutory prohibitions on disclosure based on a 

negative inference from section 6(b)(1) of the IG Act, but concluding that 

“the inference OIG invoke[d]” was not sufficiently strong to provide a 

“clear manifestation of congressional intent” (internal quotation marks 

omitted)). Moreover, section 8E(a) of the IG Act falls comfortably within 

the exception’s scope. See 5 U.S.C. app. § 8E(a)(2) (stating that the Attorney General “may prohibit the Inspector General from carrying out or 

completing any audit or investigation, or from issuing any subpena, . . . to 

prevent the disclosure of” certain sensitive information (emphases added)). A straightforward interpretation of section 540 thus does not invite 

the result we thought “implausible” when construing section 218 of the 

2015 Appropriations Act—namely, an implied partial repeal of a section 

of the IG Act itself. IG Access, 39 Op. O.L.C. at 93.

Finally, to return to the question you asked, it follows directly from this 

prohibition on withholding that the Department may (and must) disregard 

the limitations in Title III, Rule 6(e), and section 626 of FCRA when it 

makes disclosures to OIG. As discussed above, for the remainder of the 

fiscal year, section 540 effectively bars the Department from withholding 
Effect of Appropriations Rider on Access of DOJ Inspector General to Information

53

materials from OIG under Title III, Rule 6(e), or section 626. And in so 

doing, section 540 effectively overrides the limitations in those statutes 

with respect to disclosures to OIG during that period. It is therefore plainly permissible—and indeed required—for the Department to disregard 

those limitations in making disclosures to OIG for the remainder of the 

fiscal year.

III.

For the foregoing reasons, we conclude that section 540 of the CJS Appropriations Act effectively prohibits the Department, for the remainder 

of fiscal year 2016, from denying OIG timely access to materials requested by OIG, or preventing or impeding OIG’s access to such materials, 

pursuant to Title III, Rule 6(e), or section 626 of FCRA. As a result, the 

Department may (and must) disregard the limitations in those statutes in 

making disclosures to OIG for the remainder of the fiscal year. We note 

that, upon obtaining materials from the Department, OIG will be required 

to “ensure compliance with statutory limitations on disclosure relevant to 

the information” contained in those materials. CJS Appropriations Act 

§ 540. We have not considered the nature of the Department’s and OIG’s 

obligations after fiscal year 2016 with respect to materials to which OIG 

obtains access under section 540.

KARL R. THOMPSON

Principal Deputy Assistant Attorney General

Office of Legal Counsel