39 

### Effect of Appropriation s 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 S afe 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 rem ainder of the fiscal year.

April 27, 2016

M EMORANDUM O PINION FOR THE

D EPUTY A TTORNEY G ENERAL

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 th e 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 w hether 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, 1 5 U.S.C. § 1681u (“FCRA”). As relevant, section 540 of the CJS Appropriations Act provides that the Dep artment 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 S pace 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 As sistant 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 provis ion of law, except a provision of law thatexpressly 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 prov ision has the effect of barring the Department, for the remainder of fiscal year 2016, from denying OIG timely access to reques ted materials pursuant to Title III, Rule 6(e), or section 626 of FCRA, or from preventing or impeding OIG’s access to such mater ials. 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 exce ption 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 S tatute , 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 extend ed 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 genera l 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 avai lable 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 circumstance s, 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 AttorneyEffect of Appropriations Rider on Access of DOJ Inspector General to Information

41 General determines that such prohibition is necessary to prevent the

dis closure” 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 investi gative 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 “at torney[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 cre dit agencies, frequently without the consumer’s knowledge

— except under two enumerated exceptions. 1 5 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 OI G 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 ass ist in the approval or conduct of foreign counterintelligence investigations. See id. at 68

. But the statutes do not permit disclosures that “have either an atten uated or no40 Op. O.L.C. 39 (2016)

42 connection” with the De partment’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 t hat 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. S ee id. at 19

– 20

. In our IG Access o pinion, 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 ov erride 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 previousl y 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 o pinion that “the logic of these opinions

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

“st rict 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 fro m 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 o r 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 underEffect 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 rig ht 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 thre e withholding statutes, or

contain general language addressing potential conflicts with otherstatutory confidentiality provisions, such as a statement that the inspector general’s right of access shall apply ‘notwithstanding any

other law’ or ‘notwithsta nding any statutory prohibition on disclosure’

— language that might, at least in some circumstances, provide a clearer indication that the general access language was supposed tooverride 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 S upreme 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 Congres s 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” thatOIG 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 8 6 (emphasis omitted ) (quoting S. Rep.

No. 95

- 1071, at 33

– 34 (1978)).40 Op. O.L.C. 39 (2016)

44 Ou r IG Access o pinion 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 pro tected 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 Insp ector 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 in

formation.
We began our analysis of section 218 b y 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

acc ess 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 sect ion 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 und er sectionEffect 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 interpret ed 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 ride r 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 appropriatio ns 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 discl osures 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 wh ere 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 sta tutory 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 pl ausible, 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 Tit le III, Rule40 Op. O.L.C. 39 (2016)

46 6(e), and section 626 of FC RA, 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 read ing of the phrase “express limitation of section 6(a)” was

“consonant with” ce rtain “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 l imitation 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

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

sufficientl y 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 appropr iations act that post

- dates the provisions in T itle 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 T itle III, Rule 6(e),

or section 626” or “s tate 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 “ ‘ des igned 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 a dding 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 o pinion, Congress enacted th e Consolidat ed Appropriations Act, 2016, Pub. L. No. 114

- 113

, 129

Stat. 2242 (Dec. 18, 2015). Division B of that statute, the CJS Appro

priations 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 den y an InspectorGeneral 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 depa rtment or agency covered by this section shallprovide 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

relevan t to the information provided by the establishment over whichthat 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

t he 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

statem ent “shall have the same effect

. . . as if it were a joint explanatory statement of a committee of conference”).

II.

As we explained in t he IG Access o pinion (and as discussed above), anappropriations 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 th e CJS Appropriations Act40 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 fro m OIG pursuant to Title III, Rule 6(e), or section 626 f or 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 197 8.” The “Act” referred to in section 540 is the CJS Appropriations Act, which appropriates funds both to the Department generally and to OI G specifically for fiscal year 2016. See Consolidated Appropriations Act, 2016 § 3 , 129 Stat. at 2244 (“Except as exp ressly 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 Depa rtment 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). Secti on 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 restri ctionbars 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 a ny 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 Inspec tor 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 m aterials 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” (emph asis 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 acces s. 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

th at disciplinary action is not warranted for a violation of Title III, and t o “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 ride r 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 AppropriationsAct, or entail the use of resources (such as electricity, paper, or a comp uter) 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 proc

essing applications in accordance with a s traightforward 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

– 7240 Op. O.L.C. 39 (2016)

50 (9th Cir. 1995) (“The use of any government resources

— whether salaries, employ ees, 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 hasexpressly prohibited the expenditure of any funds for a particular purp ose” 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 ma terials from

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

as funds hel d 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 m ajority 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, “Genera l 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 Administratio n, 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

o btain 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 sec tion 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 sectio n 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 prov isions 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 s tates 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

2 015 Appropriations Act, section 540 is not “susceptible to alternative interpretations, one of which would permit withholding und er 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 “i n 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 fo undsufficient, 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 lim itations 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. at40 Op. O.L.C. 39 (2016)

52 190 (explaining that the presumption against implied repeals applies with special force to appropriations acts b ecause 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 Gener al’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) ma terials available to the Department pursuant to statutory provisions. And the inclusion of this one exception implie s 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 limit ed ‘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 othe r 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 quot ation 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 in vestigation, 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 Departm ent 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 remainde r of the fiscal year, section 540 effectively bars the Department from withholdingEffect 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 th e 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 remainde rof 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 th e 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

t he 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