b'Access of Department of Justice Inspector General to\nCertain Information Protected from Disclosure by Statute\nDepartment of Justice officials may disclose information protected by the Federal Wiretap\nAct (Title III of the Omnibus Crime Control and Safe Streets Act of 1968), Rule 6(e)\nof the Federal Rules of Criminal Procedure, and section 626 of the Fair Credit Reporting Act to the Department\xe2\x80\x99s Office of the Inspector General (\xe2\x80\x9cOIG\xe2\x80\x9d) in connection\nwith many, but not all, of OIG\xe2\x80\x99s investigations and reviews.\nSection 6(a)(1) of the Inspector General Act of 1978 does not supersede the limitations on\ndisclosure contained in Title III, Rule 6(e), and section 626.\nSection 218 of the Consolidated and Further Continuing Appropriations Act, 2015, also\ndoes not supersede the limitations on disclosure contained in Title III, Rule 6(e), and\nsection 626.\nJuly 20, 2015\n\nMEMORANDUM OPINION FOR THE\nDEPUTY ATTORNEY GENERAL *\nYou have asked whether the Department of Justice (the \xe2\x80\x9cDepartment\xe2\x80\x9d)\nmay lawfully provide the Department\xe2\x80\x99s Office of the Inspector General\n(\xe2\x80\x9cOIG\xe2\x80\x9d) with access to documents containing certain kinds of statutorily\n\n* Editor\xe2\x80\x99s Note: After this opinion was issued, Congress amended section 6(a) of the\nInspector General Act to provide that inspectors general are authorized\nto have timely access to all records, reports, audits, reviews, documents, papers,\nrecommendations, or other materials available to the applicable establishment\nwhich relate to the programs and operations with respect to which that Inspector\nGeneral has responsibilities under this Act . . . notwithstanding any other provision\nof law, except pursuant to any provision of law enacted by Congress that expressly\n. . . refers to the Inspector General; and . . . limits the right of access of the Inspector General.\nInspector General Empowerment Act of 2016, Pub. L. No. 114-317, sec. 5(1), \xc2\xa7 6(a)(1)(A),\n(B) (codified at 5 U.S.C. app. \xc2\xa7 6(a)(1)(A), (B)). The amended statute also provides a\nspecial procedure for access to \xe2\x80\x9cFederal grand jury materials protected from disclosure\npursuant to rule 6(e) of the Federal Rules of Criminal Procedure.\xe2\x80\x9d Id. \xc2\xa7 6(a)(1)(C)). This\nOffice analyzed inspector general access under statutory provisions similar to those in\nthe amended section 6(a) in Effect of Appropriations Rider on Access of DOJ Inspector\nGeneral to Certain Protected Information, 40 Op. O.L.C. 39 (2016).\n\n12\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nprotected 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;\nTitle III of the Omnibus Crime Control and Safe Streets Act of 1968, as\namended, 18 U.S.C. \xc2\xa7\xc2\xa7 2510\xe2\x80\x932522 (\xe2\x80\x9cTitle III\xe2\x80\x9d); Rule 6(e) of the Federal\nRules of Criminal Procedure (\xe2\x80\x9cRule 6(e)\xe2\x80\x9d); and section 626 of the Fair\nCredit Reporting Act, 15 U.S.C. \xc2\xa7 1681u (\xe2\x80\x9cFCRA\xe2\x80\x9d). Subject to certain\nexceptions, each of these statutes restricts the disclosure of particular\ncategories of information: Title III limits the Department\xe2\x80\x99s authority to\ndisclose the contents of intercepted communications; Rule 6(e) limits the\nDepartment\xe2\x80\x99s authority to disclose grand jury materials; and section 626\nof FCRA limits the authority of the Federal Bureau of Investigation\n(\xe2\x80\x9cFBI\xe2\x80\x9d) to disclose consumer information obtained pursuant to National\nSecurity Letters issued under section 626. At the same time, however,\nsection 6(a)(1) of the Inspector General Act of 1978, as amended,\n5 U.S.C. app. (the \xe2\x80\x9cIG Act\xe2\x80\x9d), authorizes OIG \xe2\x80\x9cto have access to all records, reports, audits, reviews, documents, papers, recommendations, or\nother material\xe2\x80\x9d available to the Department and relevant to the programs\nand operations OIG is charged with reviewing. 5 U.S.C. app. \xc2\xa7 6(a)(1).\nIn views letters submitted in connection with the preparation of this\nopinion, OIG, together with certain other interested entities, argues that\nsection 6(a)(1) of the IG Act grants it an unqualified right of access to\nDepartment records relevant to its audits, investigations, and reviews,\nnotwithstanding any limitations on disclosure imposed by Title III, Rule\n6(e), or section 626 of FCRA. OIG also argues that, even leaving section\n6(a)(1) aside, the relevant statutory exceptions in Title III, Rule 6(e), and\nsection 626 permit the Department and its components to disclose protected information to OIG when that information is pertinent to its audits,\ninvestigations, or reviews. Certain other Department components disagree, arguing that the statutory exceptions in Title III, Rule 6(e), and\n1 See Memorandum for Karl Thompson, Acting Assistant Attorney General, Office of\nLegal Counsel, from James M. Cole, Deputy Attorney General (May 24, 2014) (\xe2\x80\x9cOpinion\nRequest\xe2\x80\x9d). Our Office received a request for an opinion on the same subject in 2011, but\nthat request was withdrawn. See Letter for Cynthia Schnedar, Acting Inspector General,\nfrom James M. Cole, Deputy Attorney General (Mar. 16, 2012). In preparing this opinion,\nwe have considered views submitted in connection with both requests.\n\n13\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nsection 626 permit disclosure of protected information to OIG only in a\nlimited set of circumstances, and that the limits on disclosure apply even\nwhen OIG requests material under section 6(a)(1) of the IG Act. 2\n\n2 See E-mail for John E. Bies, Deputy Assistant Attorney General, Office of Legal\nCounsel, from William M. Blier, General Counsel, OIG (Apr. 29, 2015, 6:37 PM) (\xe2\x80\x9cOIG\n2015 E-mail\xe2\x80\x9d); Memorandum for the Acting Assistant Attorney General, Office of Legal\nCounsel, from Michael E. Horowitz, Inspector General (June 24, 2014) (\xe2\x80\x9cOIG 2014\nMemorandum\xe2\x80\x9d); Memorandum for the Attorney General from Cynthia A. Schnedar,\nActing Inspector General (Dec. 16, 2011) (\xe2\x80\x9cOIG Grand Jury Memorandum\xe2\x80\x9d); Memorandum for the Deputy Attorney General from Cynthia A. Schnedar, Acting Inspector\nGeneral (Dec. 16, 2011) (\xe2\x80\x9cOIG Title III Memorandum\xe2\x80\x9d); Memorandum for the Deputy\nAttorney General from Cynthia A. Schnedar, Acting Inspector General (Dec. 6, 2011)\n(\xe2\x80\x9cOIG FCRA Memorandum\xe2\x80\x9d); Memorandum for Caroline D. Krass, Principal Deputy\nAssistant Attorney General, Office of Legal Counsel, from Carol F. Ochoa, Assistant\nInspector General, Oversight and Review Division (Mar. 9, 2011) (\xe2\x80\x9cOIG Supplemental\nMemorandum\xe2\x80\x9d); Memorandum for Paul P. Colborn, Special Counsel, Office of Legal\nCounsel, from Carol F. Ochoa, Assistant Inspector General, Oversight and Review\nDivision (Dec. 17, 2010) (\xe2\x80\x9cOIG Memorandum\xe2\x80\x9d); see also Memorandum for John Bies,\nDeputy Assistant Attorney General, Office of Legal Counsel, from Leslie R. Caldwell,\nAssistant Attorney General, Criminal Division (July 14, 2014); Letter for John E. Bies,\nDeputy Assistant Attorney General, Office of Legal Counsel, from Phyllis K. Fong,\nChair, and Lynne A. McFarland, Vice Chair, Council of the Inspectors General on\nIntegrity and Efficiency (\xe2\x80\x9cCIGIE\xe2\x80\x9d) (June 24, 2014); Memorandum for John E. Bies,\nDeputy Assistant Attorney General, Office of Legal Counsel, from G. Bradley Weinsheimer, Deputy Counsel, Office of Professional Responsibility (June 24, 2014); E-mail\nfor John E. Bies, Deputy Assistant Attorney General, Office of Legal Counsel, from\nJocelyn Aqua, National Security Division (Mar. 2, 2012, 3:54 PM) (\xe2\x80\x9cNSD E-mail\xe2\x80\x9d);\nMemorandum for Virginia A. Seitz, Assistant Attorney General, Office of Legal Counsel,\nfrom Lanny A. Breuer, Assistant Attorney General, Criminal Division (Feb. 16, 2012);\nLetter for John E. Bies, Deputy Assistant Attorney General, Office of Legal Counsel,\nfrom Phyllis K. Fong, Chair, and Carl Clinefelter, Vice Chair, CIGIE (Oct. 7, 2011);\nMemorandum for the Office of the Deputy Attorney General, from Patrick W. Kelley,\nActing 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\nValerie Caproni, General Counsel, FBI (Jan. 13, 2011) (\xe2\x80\x9cFBI Memorandum\xe2\x80\x9d).\nIn addition, although the Office does not solicit views from outside the Executive\nBranch, we received a letter concerning the issues addressed in this opinion from Senator\nCharles E. Grassley and Representative John Conyers, then-Ranking Members of the\nSenate and House Committees on the Judiciary. See Letter for Karl R. Thompson, Acting\nAssistant Attorney General, Office of Legal Counsel, from Charles E. Grassley, Ranking\nMember, Committee on the Judiciary, U.S. Senate, and John Conyers, Ranking Member,\n\n14\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nFor 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\nall, of the circumstances in which OIG might request it. In particular,\nTitle III permits Department officials to disclose to OIG the contents of\nintercepted communications when doing so could aid the disclosing\nofficial or OIG in the performance of their duties related to law enforcement, including duties related to Department leadership\xe2\x80\x99s supervision of\nlaw enforcement activities on a programmatic or policy basis. Rule 6(e)\npermits disclosure of grand jury materials to OIG if a qualifying attorney\ndetermines that such disclosure could assist her in the performance of her\ncriminal law enforcement duties, including any supervisory law enforcement duties she may have. And FCRA permits the FBI to disclose to OIG\nconsumer information obtained pursuant to section 626 if such disclosure\ncould assist in the approval or conduct of foreign counterintelligence\ninvestigations, including in the supervision of such investigations on a\nprogrammatic or policy basis. In our view, however, Title III and Rule\n6(e) forbid disclosures that have either an attenuated or no connection\nwith the conduct of the Department\xe2\x80\x99s criminal law enforcement programs\nor operations, and section 626 of FCRA forbids disclosures that have\neither an attenuated or no connection with the approval or conduct of\nforeign counterintelligence investigations.\nWe further conclude that, to the extent that Title III, Rule 6(e), and section 626 prohibit Department officials from disclosing information to\nOIG, section 6(a)(1) of the IG Act does not override these prohibitions.\nUnder longstanding interpretive principles, general access provisions like\nsection 6(a)(1) are generally construed not to override specific, carefully\ndrawn limitations on disclosure like Title III, Rule 6(e), and section 626\nunless Congress has clearly indicated that it intends the general access\nprovision to have that effect. And in our view, the text of the IG Act\ncontains no clear indication that Congress intended section 6(a)(1) to\noverride Title III, Rule 6(e), or section 626. The Act\xe2\x80\x99s legislative history,\nmoreover, affirmatively indicates that Congress expected an inspector\ngeneral\xe2\x80\x99s right of access to be subject to statutory limits on disclosure.\nCommittee on the Judiciary, U.S. House of Representatives (Oct. 10, 2014). We appreciate Senator Grassley\xe2\x80\x99s and Representative Conyers\xe2\x80\x99s interest in these issues, and have\nconsidered their views in preparing this opinion.\n\n15\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nIn reaching these conclusions, our Office\xe2\x80\x99s role has not been to decide\nwhat access OIG should receive as a matter of policy. Rather, we have\nendeavored to determine as a matter of law, using established tools of\nstatutory construction, how best to reconcile the strong privacy protections embodied in Title III, Rule 6(e), and section 626 with the interest in\naccess reflected in section 6(a)(1) of the IG Act.\nThis opinion has four parts. In Part I, we set forth some statutory background related to the IG Act, and explain the potential statutory conflict\nthat arises when OIG, relying on the IG Act\xe2\x80\x99s general access provision,\nrequests material that is also covered by the nondisclosure provisions in\nTitle III, Rule 6(e), or section 626 of FCRA. In Part II, we examine Title\nIII, Rule 6(e), and section 626 to determine whether the exceptions in\nthose statutes permit disclosure of the protected materials OIG seeks,\nthereby avoiding the potential conflict between those statutes and the IG\nAct. In Part III, having concluded that this conflict cannot be avoided in\nall 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\n626. Finally, in Part IV, we discuss a Fiscal Year 2015 appropriations\nrider concerning the disclosure of Department materials to OIG and\nconclude that it too does not abrogate the specific protections of sensitive\ninformation found in those statutes. 3\nI.\nCongress enacted the IG Act in 1978 to \xe2\x80\x9ccreate independent and objective units\xe2\x80\x9d within the Executive Branch that would promote the integrity\nof executive agencies and keep executive officials and Congress fully\ninformed about their operations. 5 U.S.C. app. \xc2\xa7 2. To achieve these\ngoals, the Act created an Office of Inspector General in a large number of\nfederal agencies. Id. \xc2\xa7\xc2\xa7 2(A), 8G(a)\xe2\x80\x93(b), 12(2). 4 Each office is led by an\nYou have asked only whether it would be \xe2\x80\x9clawful[]\xe2\x80\x9d for the Department to provide\nOIG information protected by Title III, Rule 6(e), and section 626 of FCRA. Opinion\nRequest. Accordingly, we do not address in this opinion whether and, if so, under what\ncircumstances the Department could lawfully withhold information it is legally permitted\nto disclose.\n4 The IG Act uses the term \xe2\x80\x9cestablishment\xe2\x80\x9d to refer to those enumerated agencies, departments, commissions, boards, and corporations in which Congress created an Office of\n3\n\n16\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\ninspector general who is charged with auditing, investigating, detecting\nfraud and abuse in, and making recommendations and reports about the\nagency\xe2\x80\x99s \xe2\x80\x9cprograms and operations.\xe2\x80\x9d Id. \xc2\xa7\xc2\xa7 3(a), 4(a), 5. Each inspector\ngeneral must \xe2\x80\x9ckeep the head of [his agency] and the Congress fully and\ncurrently informed\xe2\x80\x9d about fraud, abuse, deficiencies, and other serious\nproblems in \xe2\x80\x9cthe administration of programs and operations administered\nor financed by such\xe2\x80\x9d agency, and \xe2\x80\x9crecommend corrective action\xe2\x80\x9d to\naddress any problems he identifies. Id. \xc2\xa7 4(a)(5). Inspectors general must\n\xe2\x80\x9creport to\xe2\x80\x9d and are placed \xe2\x80\x9cunder the general supervision of \xe2\x80\x9d the heads of\ntheir agencies. However, the head of an agency generally may not \xe2\x80\x9cprevent or prohibit the Inspector General from initiating, carrying out, or\ncompleting any audit or investigation.\xe2\x80\x9d Id. \xc2\xa7 3(a).\nPursuant to their statutory mandate, inspectors general engage in a\nwide variety of audits, investigations, and reviews. The Department\xe2\x80\x99s\nOIG, 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;\nand broader reviews of Department programs and operations that seek to\nassess whether the programs are lawful, well run, or otherwise in the\npublic interest. See Office of the Inspector General, U.S. Dep\xe2\x80\x99t of Justice, Semiannual Report to Congress: Apr. 1, 2014\xe2\x80\x93Sept. 30, 2014 at 13\xe2\x80\x93\n14 (Oct. 31, 2014) (\xe2\x80\x9cSemiannual Report\xe2\x80\x9d); 28 C.F.R. \xc2\xa7 0.29a(b)(2), (4).\nThe Department\xe2\x80\x99s OIG also conducts financial and administrative audits\nof Department components. See Semiannual Report at 13; 28 C.F.R.\n\xc2\xa7 0.29a(b)(1). Significantly, however, while the IG Act affords inspectors general broad authority to investigate an agency\xe2\x80\x99s programs and\noperations, it does not in most cases allow inspectors general to conduct\nactivities \xe2\x80\x9cconstituting an integral part of the programs involved,\xe2\x80\x9d Inspector General Authority to Conduct Regulatory Investigations, 13 Op.\nO.L.C. 54, 62 (1989) (\xe2\x80\x9cAuthority to Conduct Regulatory Investigations\xe2\x80\x9d), and it prohibits the heads of federal agencies from transferring\nthe Inspector General. 5 U.S.C. app. \xc2\xa7 12(2). The Act also refers to \xe2\x80\x9cdesignated Federal\nentit[ies],\xe2\x80\x9d defined to include a different list of government corporations and other\nentities, and directs that \xe2\x80\x9cthere shall be established and maintained in each designated\nFederal entity an Office of Inspector General.\xe2\x80\x9d Id. \xc2\xa7 8G(b). Throughout this opinion, we\nwill refer to the federal establishments and entities subject to the IG Act, collectively, as\n\xe2\x80\x9cagencies.\xe2\x80\x9d\n\n17\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nto inspectors general any of the agency\xe2\x80\x99s \xe2\x80\x9cprogram operating responsibilities,\xe2\x80\x9d 5 U.S.C. app. \xc2\xa7 9(a). 5\nThe IG Act also grants inspectors general several enumerated authorities that help them carry out their statutory duties, such as the authority to\nissue subpoenas, take sworn testimony, and hire staff. See id. \xc2\xa7 6(a)(4),\n(5), (7). Especially relevant here is the authority to obtain records and\nother materials from the agency over which an inspector general has\ninvestigative jurisdiction. This authority is set forth in section 6(a)(1),\nwhich provides:\n[E]ach Inspector General, in carrying out the provisions of this Act,\nis 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.\nId. \xc2\xa7 6(a)(1). In addition to granting each inspector general access to\nmaterials available to his agency and within his investigative jurisdiction,\nthis provision implicitly imposes a corresponding duty on the applicable\nagency to provide the inspector general with such access upon request.\nIn the case of the Department (and certain other agencies), however, the\nIG Act qualifies this broad disclosure requirement. As originally enacted,\nthe IG Act did not establish an Office of the Inspector General in the\nJustice Department. When Congress extended the Act\xe2\x80\x99s provisions to the\nDepartment in 1988, see Inspector General Act Amendments of 1988,\nPub. L. No. 100-504, \xc2\xa7 102(c), 102 Stat. 2515, 2515\xe2\x80\x9316, Congress limited\nOIG\xe2\x80\x99s authority to investigate matters involving certain kinds of information, in recognition of the sensitivity of much of the Department\xe2\x80\x99s\nwork, see H.R. Rep. No. 100-1020, at 24 (1988) (Conf. Rep.). Specifically, section 8E(a)(1) of the Act provides that the Department\xe2\x80\x99s Inspector\nGeneral \xe2\x80\x9cshall be under the authority, direction, and control of the Attor5 Some of OIG\xe2\x80\x99s statutory responsibilities, such as conducting investigations of suspected criminal wrongdoing by Department employees, see 5 U.S.C. app. \xc2\xa7 8E(b)(2), (4),\nmay involve the same kinds of activities as the \xe2\x80\x9cprogram operating responsibilities\xe2\x80\x9d of\nother Department components. The IG Act does not prevent OIG from carrying out these\nactivities pursuant to its statutory authority. See Authority to Conduct Regulatory Investigations, 13 Op. O.L.C. at 66\xe2\x80\x9367 & n.21.\n\n18\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nney General with respect to audits or investigations, or the issuance of\nsubpoenas, which require access to sensitive information concerning\xe2\x80\x9d\ncertain enumerated matters, such as \xe2\x80\x9congoing civil or criminal investigations or proceedings,\xe2\x80\x9d \xe2\x80\x9cundercover operations,\xe2\x80\x9d and \xe2\x80\x9cother matters the\ndisclosure of which would constitute a serious threat to national security.\xe2\x80\x9d\n5 U.S.C. app. \xc2\xa7 8E(a)(1). Section 8E(a)(2) similarly provides that the\nAttorney General may \xe2\x80\x9cprohibit the Inspector General from carrying out\nor completing any audit or investigation . . . if the Attorney General\ndetermines that such prohibition is necessary to prevent the disclosure of\nany information described under [section 8E(a)(1)] or to prevent the\nsignificant impairment to the national interests of the United States.\xe2\x80\x9d Id.\n\xc2\xa7 8E(a)(2). Section 8E thus provides a mechanism through which the\nAttorney General can \xe2\x80\x9cprevent the disclosure\xe2\x80\x9d of certain sensitive information to which OIG would otherwise be entitled under section 6(a)(1).\nId.\nThe IG Act, moreover, is not in all circumstances the only statute that\ngoverns OIG\xe2\x80\x99s 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\ncommunications the Department has intercepted pursuant to Title III;\ninformation the Department has acquired in the course of grand jury\nproceedings; and consumer information the FBI has obtained using National Security Letters issued under section 626 of FCRA. And while such\ninformation falls within the broad terms of section 6(a)(1) of the IG Act,\nits use and disclosure is also regulated, and in many circumstances prohibited, by Title III, Rule 6(e), and section 626. 6 Specifically, as we\ndiscuss in more detail below, Title III bars investigative and law enforcement officers from using or disclosing the contents of lawfully intercepted\ncommunications unless a statutory exception to Title III\xe2\x80\x99s disclosure\nprohibitions applies, see 18 U.S.C. \xc2\xa7 2517, and imposes administrative,\ncivil, and sometimes criminal sanctions for unauthorized disclosure, see\n6 Because Congress enacted Rule 6(e) in 1977, see Pub. L. No. 95-78, \xc2\xa7 2, 91 Stat.\n319, 319, it is \xe2\x80\x9cby any definition . . . a statute.\xe2\x80\x9d Fund for Constitutional Gov\xe2\x80\x99t v. Nat\xe2\x80\x99l\nArchives & Records Serv., 656 F.2d 856, 867 (D.C. Cir. 1981) (concluding that grand jury\ninformation protected from disclosure by Rule 6(e) is information \xe2\x80\x9cspecifically exempted\nfrom disclosure by statute\xe2\x80\x9d within the meaning of Exemption 3 of the Freedom of Information Act, 5 U.S.C. \xc2\xa7 552(b)(3)).\n\n19\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nid. \xc2\xa7\xc2\xa7 2520(a), (f ), (g), 2511(1)(e), (4)(a). Rule 6(e) prohibits \xe2\x80\x9cattorney[s]\nfor the government\xe2\x80\x9d and other specified individuals from disclosing \xe2\x80\x9ca\nmatter occurring before the grand jury\xe2\x80\x9d except pursuant to a specific\nexception, Fed. R. Crim. P. 6(e)(2)(B), and makes a knowing violation of\nthat prohibition punishable \xe2\x80\x9cas a contempt of court,\xe2\x80\x9d Fed. R. Crim. P.\n6(e)(7). And section 626 of FCRA prohibits the FBI from disclosing\nconsumer information obtained pursuant to a National Security Letter (a\nkind of written request for information in connection with a counterterrorism or intelligence investigation) except as authorized by one of the\nexceptions provided in the statute, see 15 U.S.C. \xc2\xa7 1681u(f ), and makes\nunauthorized disclosure a basis for civil damages and disciplinary action,\nsee id. \xc2\xa7 1681u(i)\xe2\x80\x93( j).\nAs a result, in responding to OIG requests for materials covered by\nTitle III, Rule 6(e), or section 626, Department officials face potentially\nconflicting statutory directives. Title III, Rule 6(e), and section 626\nprohibit the Department from disclosing such materials\xe2\x80\x94on pain of\ncontempt, administrative and civil sanctions, and sometimes criminal\npenalties\xe2\x80\x94unless a statutory exception applies. The IG Act, in contrast,\nrequires the Department to disclose \xe2\x80\x9call\xe2\x80\x9d materials that are available to\nthe Department, relate to an OIG review of programs or operations within its investigative jurisdiction, and are not covered by a determination to\nwithhold them under section 8E.\nWhere two statutes govern the same subject matter, the Supreme\nCourt has instructed that the statutes are to be read in pari materia and\nconstrued, where possible, as part of a single and coherent regulatory\nscheme. See Morton v. Mancari, 417 U.S. 535, 551 (1974) (\xe2\x80\x9cWhen there\nare two acts upon the same subject, the rule is to give effect to both if\npossible.\xe2\x80\x9d (quoting United States v. Borden Co., 308 U.S. 188, 198\n(1939))); see also, e.g., FCC v. NextWave Personal Commc\xe2\x80\x99ns, 537 U.S.\n293, 304 (2003); J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int\xe2\x80\x99l, Inc.,\n534 U.S. 124, 143\xe2\x80\x9344 (2001); Vimar Seguros y Reaseguros, S.A. v. M/V\nSky Reefer, 515 U.S. 528, 533 (1995); Ruckelshaus v. Monsanto Co.,\n467 U.S. 986, 1018 (1984). Only where a harmonious construction of\ntwo statutes is impossible should one be construed as overriding or\nimplicitly repealing the other. Mancari, 417 U.S. at 551. Accordingly,\nbefore considering whether the general access requirement in section\n6(a)(1) of the IG Act overrides the disclosure restrictions in Title III,\n20\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nRule 6(e), and section 626 of FCRA, we examine the latter three statutes\nto determine whether and to what extent they permit disclosures to OIG.\nII.\nA.\nWe begin with Title III. Congress enacted this statute in the wake of the\nSupreme Court\xe2\x80\x99s decisions in Berger v. New York, 388 U.S. 41 (1967),\nand Katz v. United States, 389 U.S. 347 (1967), which held that electronic\nsurveillance constitutes a search subject to the limits imposed by the\nFourth Amendment. In response to these rulings, Congress created a\ncomprehensive statutory scheme governing the interception, use, and\ndisclosure of wire, oral, and electronic communications, see 18 U.S.C.\n\xc2\xa7\xc2\xa7 2510\xe2\x80\x932522, thereby establishing a mechanism through which law enforcement officials could conduct electronic surveillance in a manner that\n\xe2\x80\x9cme[t] the constitutional requirements\xe2\x80\x9d enunciated in Berger and Katz.\nUnited States v. U.S. Dist. Court for E. Dist. of Mich., S. Div., 407 U.S.\n297, 302 (1972); see Scott v. United States, 436 U.S. 128, 130 (1978)\n(noting that Title III was intended to \xe2\x80\x9cprovide law enforcement officials\nwith some of the tools thought necessary to combat crime without unnecessarily infringing upon the right of individual privacy\xe2\x80\x9d). Title III permits\nthe Attorney General and other Department leadership officials to authorize investigative or law enforcement officers to apply for court orders\nallowing them to intercept wire, oral, or electronic communications. See\n18 U.S.C. \xc2\xa7\xc2\xa7 2510, 2516(1), (3), 2518(1)(a); see also id. \xc2\xa7 2516(2) (authorizing applications by certain state attorneys). And it permits courts to\ngrant such orders if the government makes a series of procedural and\nevidentiary showings, including a showing that the interception \xe2\x80\x9cmay\nprovide or has provided\xe2\x80\x9d evidence of any of dozens of enumerated federal\noffenses (or, for the interception of an electronic communication, evidence of \xe2\x80\x9cany Federal felony\xe2\x80\x9d). Id. \xc2\xa7\xc2\xa7 2516(1), (3), 2518.\nOnce an investigative or law enforcement officer has lawfully intercepted a communication, Title III prohibits that officer from further\ndisclosing the contents of the communication\xe2\x80\x94and, as noted above,\nsubjects her to potential administrative, civil, or criminal sanctions if she\ndoes so\xe2\x80\x94unless section 2517 authorizes the disclosure. See Title III\nElectronic Surveillance Material and the Intelligence Community, 24 Op.\n21\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nO.L.C. 261, 270\xe2\x80\x9371 n.12, 272 (2000) (\xe2\x80\x9cTitle III Intelligence Community\xe2\x80\x9d); 18 U.S.C. \xc2\xa7 2520(a), (f ), (g) (authorizing civil damages and administrative discipline for willful disclosures); id. \xc2\xa7 2511(1)(e), (4)(a) (authorizing criminal penalties for certain intentional disclosures). One provision\nin section 2517, section 2517(1), is particularly relevant here. It provides\nthat\n[a]ny investigative or law enforcement officer who, by any means\nauthorized by this chapter, has obtained knowledge of the contents\nof any wire, oral, or electronic communication, or evidence derived\ntherefrom, may disclose such contents to another investigative or law\nenforcement officer to the extent that such disclosure is appropriate\nto the proper performance of the official duties of the officer making\nor receiving the disclosure.\n18 U.S.C. \xc2\xa7 2517(1). This provision thus permits disclosure of the contents of a lawfully intercepted communication if the disclosure is made\n(1) by an \xe2\x80\x9cinvestigative or law enforcement officer,\xe2\x80\x9d (2) \xe2\x80\x9cto another\ninvestigative or law enforcement officer,\xe2\x80\x9d (3) \xe2\x80\x9cto [an] extent . . . appropriate to the proper performance of the official duties of the officer\nmaking or receiving the disclosure.\xe2\x80\x9d A separate provision in Title III,\nsection 2510(7), defines an \xe2\x80\x9c[i]nvestigative or law enforcement officer\xe2\x80\x9d\nas \xe2\x80\x9cany officer of the United States or of a State or political subdivision\nthereof, who is empowered by law to conduct investigations of or to\nmake arrests for offenses enumerated in this chapter, and any attorney\nauthorized by law to prosecute or participate in the prosecution of such\noffenses.\xe2\x80\x9d Id. \xc2\xa7 2510(7).\nOIG contends that section 2517(1) authorizes Department investigative\nand law enforcement officers to disclose the contents of lawfully intercepted communications to OIG whenever OIG deems such information\npertinent to any of its investigations. It observes that, in a prior opinion,\nthis Office \xe2\x80\x9cdetermined that OIG agents . . . qualify as \xe2\x80\x98investigative\nofficers\xe2\x80\x99 authorized to disclose or receive Title III information.\xe2\x80\x9d OIG\n2014 Memorandum at 11 (citing Whether Agents of the Department of\nJustice Office of Inspector General are \xe2\x80\x9cInvestigative or Law Enforcement Officers\xe2\x80\x9d Within the Meaning of 18 U.S.C. \xc2\xa7 2510(7), 14 Op. O.L.C.\n107, 109\xe2\x80\x9310 (1990) (\xe2\x80\x9cInvestigative Officers\xe2\x80\x9d)). And OIG contends that\ndisclosures to assist in its audits, investigations, and reviews are invaria22\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nbly \xe2\x80\x9cappropriate to the proper performance of the official duties of the\nofficer making or receiving the disclosure\xe2\x80\x9d for two different (and in its\nview independently sufficient) reasons. First, it argues that under an\nordinary understanding of the term \xe2\x80\x9cofficial duties,\xe2\x80\x9d disclosing Title III\nmaterials to OIG will always be appropriate to both the official duties of\nthe Department officials disclosing the materials (because those officials\nhave a duty to cooperate with OIG\xe2\x80\x99s audits, investigations, and reviews)\nand the official duties of the OIG agents receiving the materials (because\nthe IG Act gives them a duty to investigate the Department). Second, OIG\nargues that even if \xe2\x80\x9cofficial duties\xe2\x80\x9d are limited to duties related to law\nenforcement\xe2\x80\x94as this Office concluded in a 2000 opinion\xe2\x80\x94all of OIG\xe2\x80\x99s\naudits, investigations, and reviews still qualify for disclosure, because\nthey involve either investigations of alleged criminal wrongdoing by\nDepartment employees, investigations of alleged administrative misconduct that might lead to discovery of criminal violations, or reviews of the\nDepartment\xe2\x80\x99s criminal law enforcement programs for purposes of \xe2\x80\x9csupervision or oversight.\xe2\x80\x9d OIG Title III Memorandum at 2; see OIG 2014\nMemorandum at 10\xe2\x80\x9312; cf. OIG Supplemental Memorandum at 35\xe2\x80\x9338.\nWe address these arguments in the two sections that follow. In the first\nsection, we conclude that OIG is correct that OIG agents qualify as \xe2\x80\x9cinvestigative officers\xe2\x80\x9d who may receive Title III information, but\xe2\x80\x94consistent with the conclusion in our 2000 opinion\xe2\x80\x94disagree with OIG\xe2\x80\x99s\nbroad argument that Title III permits disclosure in connection with duties\nunrelated to law enforcement. In the second section, we substantially\nagree with OIG\xe2\x80\x99s narrower argument\xe2\x80\x94namely, that disclosures to OIG\nagents will frequently assist the official law-enforcement-related duties of\neither the officer making or the officer receiving the disclosure. In particular, we conclude that Title III permits disclosure in connection with\nOIG reviews that concern, or are designed to develop recommendations\nabout, the conduct of the Department\xe2\x80\x99s criminal law enforcement programs, policies, or practices. As we explain, many\xe2\x80\x94but not all\xe2\x80\x94OIG\ninvestigations and reviews are likely to qualify for disclosure under this\nstandard.\n1.\nOIG\xe2\x80\x99s first argument is that section 2517(1) invariably permits Department officials to disclose Title III information to OIG agents. See OIG\n23\n\n\x0c39 Op. O.L.C. 12 (2015)\n\n2014 Memorandum at 10\xe2\x80\x9312. We agree that disclosures between Department officials and OIG agents generally comply with the statute\xe2\x80\x99s first\ntwo requirements: Numerous officers of the Department are \xe2\x80\x9cinvestigative\nor law enforcement officer[s]\xe2\x80\x9d entitled to disclose Title III information\nunder section 2517(1), and OIG agents are \xe2\x80\x9cinvestigative or law enforcement officer[s]\xe2\x80\x9d entitled to receive such information. But, as we explain\nbelow, a prior opinion of this Office concluded that the statutory phrase\n\xe2\x80\x9cofficial duties\xe2\x80\x9d refers only to official duties related to law enforcement.\nThat conclusion applies here, and means that disclosing information to\nOIG is not in itself, and without some further link to law enforcement,\n\xe2\x80\x9cappropriate to the proper performance of [an] official dut[y]\xe2\x80\x9d within the\nmeaning of section 2517(1).\nThe first requirement for a disclosure under section 2517(1) is that it be\nmade by an \xe2\x80\x9cinvestigative or law enforcement officer,\xe2\x80\x9d defined as an\nofficer of the United States (or a state or locality) empowered to \xe2\x80\x9cconduct\ninvestigations of,\xe2\x80\x9d \xe2\x80\x9cmake arrests for,\xe2\x80\x9d or, if the officer is an attorney,\n\xe2\x80\x9cprosecute or participate in the prosecution of \xe2\x80\x9d offenses enumerated in\nsection 2516. 18 U.S.C. \xc2\xa7 2510(7). Numerous officials in the Department\nqualify as \xe2\x80\x9cinvestigative or law enforcement officer[s]\xe2\x80\x9d who may disclose\nintercepted 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 \xe2\x80\x9cinvestigat[e]\xe2\x80\x9d and \xe2\x80\x9cmake arrests for\xe2\x80\x9d crimes enumerated in section 2516. Id.;\nsee, e.g., 28 C.F.R. \xc2\xa7 0.85 (enumerating investigatory functions of the\nFBI). And prosecutors, such as Assistant United States Attorneys, qualify\nbecause they are federal officers \xe2\x80\x9cauthorized by law to prosecute or participate in the prosecution of \xe2\x80\x9d enumerated offenses. 18 U.S.C. \xc2\xa7 2510(7);\nsee, e.g., 28 U.S.C. \xc2\xa7\xc2\xa7 542, 547 (authorizing United States Attorneys and\ntheir assistants to prosecute federal offenses). Officers of the Department\nwith leadership or supervisory responsibilities, such as the Attorney\nGeneral and Deputy Attorney General, also qualify as investigative or law\nenforcement officers. They too are executive officers generally vested\nwith authority to investigate, make arrests for, and prosecute offenses\nenumerated in section 2516. See, e.g., 28 U.S.C. \xc2\xa7\xc2\xa7 509, 515; 28 C.F.R.\n\xc2\xa7 0.15(a). In addition, as we explain below, these officers participate in\ninvestigations, arrests, and prosecutions through their direction and super-\n\n24\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nvision of those actions on an individual or programmatic basis. See infra\npp. 29\xe2\x80\x9330.\nSection 2517(1)\xe2\x80\x99s second requirement is that the person receiving a\ndisclosure of Title III material also be an investigative or law enforcement officer. As OIG observes, this Office has already concluded, in a\n1990 opinion, that OIG agents \xe2\x80\x9cqualify as \xe2\x80\x98investigative officer[s]\xe2\x80\x99 under\nsection 2510(7).\xe2\x80\x9d Investigative Officers, 14 Op. O.L.C. at 109 (alteration\nin original). OIG agents, as officers in the Executive Branch, are \xe2\x80\x9cofficer[s] of the United States.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 2510(7). Further, as we explained in our 1990 opinion, the IG Act \xe2\x80\x9centrusts [OIG] with investigative, auditing, and other responsibilities relevant to the detection and\nprosecution of fraud and abuse within [Department] programs or operations.\xe2\x80\x9d 14 Op. O.L.C. at 109\xe2\x80\x9310. When OIG agents, exercising those\nresponsibilities, \xe2\x80\x9cdiscover evidence that . . . Department personnel, contractors, or grantees are engaging in [offenses enumerated in section\n2516]\xe2\x80\x9d\xe2\x80\x94such as \xe2\x80\x9cbribery of public officials and witnesses,\xe2\x80\x9d \xe2\x80\x9cinfluencing\nor injuring an officer, juror, or witness,\xe2\x80\x9d or \xe2\x80\x9cobstruction of criminal\ninvestigations\xe2\x80\x9d\xe2\x80\x94they have the authority to investigate those crimes. Id.\nat 110. Indeed, the portion of the IG Act that created OIG specifically\nauthorizes it to \xe2\x80\x9cinvestigate allegations of criminal wrongdoing\xe2\x80\x9d by Department employees. 5 U.S.C. app. \xc2\xa7 8E(b)(2), (4); see also id. \xc2\xa7 8E(d);\n28 C.F.R. \xc2\xa7\xc2\xa7 0.29a(b)(2), 0.29c(a). Furthermore, upon learning of \xe2\x80\x9c\xe2\x80\x98reasonable grounds to believe there has been a violation of Federal criminal\nlaw,\xe2\x80\x99\xe2\x80\x9d inspectors general are required to \xe2\x80\x9c\xe2\x80\x98report [such violations] expeditiously to the Attorney General,\xe2\x80\x99\xe2\x80\x9d Investigative Officers, 14 Op. O.L.C.\nat 109 (quoting 5 U.S.C. app. \xc2\xa7 4(d)), presumably so that the Attorney\nGeneral can consider the matter for prosecution. OIG\xe2\x80\x99s investigative\njurisdiction thus \xe2\x80\x9ccarries with it the power to investigate offenses enumerated in section 2516,\xe2\x80\x9d and as a result, OIG agents\xe2\x80\x94\xe2\x80\x9cincluding special agents, auditors and investigators\xe2\x80\x9d\xe2\x80\x94are \xe2\x80\x9cinvestigative officers\xe2\x80\x9d\nentitled to receive disclosures of Title III information under section\n2517(1). Id. at 110. 7\n\nSome OIG agents may also qualify as \xe2\x80\x9cinvestigative or law enforcement officer[s]\xe2\x80\x9d\nbecause they are authorized by the Attorney General, pursuant to specific provisions in\nthe IG Act, to make warrantless arrests and execute arrest warrants. See 5 U.S.C. app.\n\xc2\xa7 6(e); 28 C.F.R. \xc2\xa7 0.29j(d)\xe2\x80\x93(e).\n7\n\n25\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nThe conclusion that both Department officials who maintain Title III\ninformation and OIG agents who seek it are \xe2\x80\x9cinvestigative or law enforcement officer[s]\xe2\x80\x9d under section 2517(1), however, does not mean that\nthose officers may share Title III information with each other in all circumstances. Section 2517(1)\xe2\x80\x99s third requirement is that any disclosure of\nTitle III information between qualifying officers must be \xe2\x80\x9cappropriate to\nthe proper performance of the official duties of the officer making or\nreceiving the disclosure.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 2517(1). In our 2000 Title III\nIntelligence Community opinion, this Office concluded that the phrase\n\xe2\x80\x9cofficial duties,\xe2\x80\x9d despite its apparent breadth, includes only the \xe2\x80\x9claw\nenforcement duties\xe2\x80\x9d of the relevant officer\xe2\x80\x94that is, those \xe2\x80\x9cduties related\nto the prevention, investigation, or prosecution of criminal conduct.\xe2\x80\x9d 24\nOp. O.L.C. at 264 n.7, 265. We reasoned that if \xe2\x80\x9cofficial duties\xe2\x80\x9d were\nread to \xe2\x80\x9cpermit disclosure . . . for purposes unrelated to law enforcement,\xe2\x80\x9d\nsection 2517(1) \xe2\x80\x9cwould constitute only a highly elastic limitation on\ndisclosure among law enforcement officers\xe2\x80\x9d\xe2\x80\x94allowing, for instance, an\nattorney with both civil and criminal duties to receive wiretap information\nfor use in civil litigation. Id. at 265. We found this result \xe2\x80\x9cunlikely in light\nof Congress\xe2\x80\x99s effort in Title III to protect privacy to the maximum extent\npossible, consistent with permitting electronic surveillance for law enforcement purposes.\xe2\x80\x9d Id.; see id. at 267\xe2\x80\x9369 (discussing the statute\xe2\x80\x99s purpose). We also noted that Title III\xe2\x80\x99s legislative history demonstrated that\n\xe2\x80\x9cCongress sought in \xc2\xa7 2517 to serve \xe2\x80\x98criminal law investigation and\nenforcement objectives,\xe2\x80\x99\xe2\x80\x9d id. at 265 (quoting Am. Friends Serv. Comm. v.\nWebster, 720 F.2d 29, 73 (D.C. Cir. 1983)), and observed, based on a\nsurvey of judicial decisions applying section 2517, that \xe2\x80\x9cthe uses of Title\nIII information permitted by courts have all related to law enforcement,\xe2\x80\x9d\nid. at 266. We therefore concluded that \xe2\x80\x9cthe phrase \xe2\x80\x98appropriate to the\nproper performance of . . . official duties\xe2\x80\x99\xe2\x80\x9d in section 2517 \xe2\x80\x9cauthorizes\ndisclosure of Title III material only for purposes related to law enforcement.\xe2\x80\x9d Id. at 265, 267.\nOIG argues that this conclusion does not apply to disclosures made to\nOIG in connection with its investigations. It points out that our Title III\nIntelligence Community opinion concerned disclosures of Title III information to members of the intelligence community, who we concluded\nwere not \xe2\x80\x9cinvestigative or law enforcement officer[s]\xe2\x80\x9d within the meaning\nof sections 2510(7) and 2517. See OIG 2014 Memorandum at 11. As a\n26\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nresult, our conclusion there\xe2\x80\x94that Title III information could be disclosed\nto members of the intelligence community in certain circumstances\xe2\x80\x94was\nbased not on section 2517(1), but on section 2517(2), a different exception that permits investigative or law enforcement officers to \xe2\x80\x9cuse\xe2\x80\x9d Title\nIII information, including by disclosing it, \xe2\x80\x9cto the extent such use is\nappropriate to the proper performance of [the] official duties\xe2\x80\x9d of the disclosing officer. 18 U.S.C. \xc2\xa7 2517(2). As OIG observes, its agents are\ninvestigative or law enforcement officers, and thus, unlike members of the\nintelligence community, may in principle receive disclosures on the basis\nof their own \xe2\x80\x9cofficial duties\xe2\x80\x9d under section 2517(1), rather than the duties\nof the disclosing officer. OIG argues that, as a result, the conclusions in\nTitle III Intelligence Community should not control the scope of the disclosures it may receive. See OIG 2014 Memorandum at 11.\nWe disagree. Both sections 2517(1) and 2517(2) use the phrase \xe2\x80\x9cofficial duties,\xe2\x80\x9d and as we explained in Title III Intelligence Community,\n\xe2\x80\x9cunder basic canons of statutory construction,\xe2\x80\x9d these \xe2\x80\x9cidentical phrase[s]\n. . . must be interpreted consistently\xe2\x80\x9d each time they appear in the same\nstatute. 24 Op. O.L.C. at 265 (citing Sullivan v. Stroop, 496 U.S. 478,\n484\xe2\x80\x9385 (1990); United Sav. Ass\xe2\x80\x99n v. Timbers of Inwood Forest Assocs.,\n484 U.S. 365, 371 (1988)). Indeed, the Title III Intelligence Community\nopinion expressly analyzed section 2517(1) to determine how best to\ninterpret \xe2\x80\x9cofficial duties\xe2\x80\x9d for purposes of section 2517(2), and concluded,\nin the discussion summarized above, that the phrase was best read in both\nsections as limited to a relevant official\xe2\x80\x99s law enforcement duties. See id.\nNor is there any basis for understanding the \xe2\x80\x9cofficial duties\xe2\x80\x9d of a receiving officer in section 2517(1) to have a broader scope than those of a\ndisclosing officer in the same section, since the same phrase applies\nequally to both kinds of officers. See 18 U.S.C. \xc2\xa7 2517(1) (requiring that\ndisclosure assist \xe2\x80\x9cthe official duties of the officer making or receiving the\ndisclosure\xe2\x80\x9d (emphasis added)). The interpretation of \xe2\x80\x9cofficial duties\xe2\x80\x9d in\nTitle III Intelligence Community thus extends to section 2517(1), and\napplies to the duties of both receiving and disclosing officers.\nFor this reason, we disagree with OIG\xe2\x80\x99s contention that \xe2\x80\x9cproviding\ndocuments to . . . OIG in the context of [any] duly authorized review\nwould typically be \xe2\x80\x98appropriate to the proper performance of the official\nduties of the official making . . . the disclosure\xe2\x80\x99\xe2\x80\x9d solely because of \xe2\x80\x9cthat\nofficial\xe2\x80\x99s duty to cooperate fully with . . . OIG\xe2\x80\x99s investigations and re27\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nviews.\xe2\x80\x9d OIG 2014 Memorandum at 11. The duty to cooperate with OIG\xe2\x80\x99s\ninvestigations is certainly an \xe2\x80\x9cofficial dut[y]\xe2\x80\x9d in the broadest sense of that\nterm. But that duty does not invariably \xe2\x80\x9crelate to law enforcement.\xe2\x80\x9d Title\nIII Intelligence Community, 24 Op. O.L.C. at 270. Indeed, we explained in\nTitle III Intelligence Community that neither an officer\xe2\x80\x99s \xe2\x80\x9cgeneral duty to\nshare [information] with another government entity,\xe2\x80\x9d nor the duty to\nrespond to a \xe2\x80\x9cproper request or demand by a congressional committee,\xe2\x80\x9d\nautomatically constitutes an \xe2\x80\x9cofficial dut[y]\xe2\x80\x9d within the meaning of section 2517(1). Id. at 264, 271. Similarly, OIG\xe2\x80\x99s duty (as the potential receiving officer) to audit, investigate, and review the Department\xe2\x80\x99s activities does not automatically justify Title III disclosure, because it too may\nnot always relate to law enforcement. As a result, we do not believe\nDepartment investigative or law enforcement officers can disclose Title\nIII information to OIG without regard to whether the disclosure would be\nappropriate to the proper performance of an official duty related to law\nenforcement.\n2.\nOIG\xe2\x80\x99s second argument is that even if (as we have concluded) \xe2\x80\x9cofficial\nduties\xe2\x80\x9d are limited to duties related to law enforcement, OIG\xe2\x80\x99s audits,\ninvestigations, and reviews still qualify for disclosure, because they involve investigations of alleged criminal wrongdoing or administrative\n(and potentially criminal) misconduct by Department employees, or reviews of the Department\xe2\x80\x99s criminal law enforcement programs for purposes of \xe2\x80\x9csupervision and oversight.\xe2\x80\x9d OIG Title III Memorandum at 2.\nFor the reasons set forth below, we agree that many\xe2\x80\x94but not all\xe2\x80\x94of\nOIG\xe2\x80\x99s investigations and reviews are sufficiently related to law enforcement to support disclosure based on either the official duties of the officer\nmaking the disclosure, or the official duties of the officer receiving it.\nWe begin with those disclosures appropriate to the official duties of the\nofficer \xe2\x80\x9cmaking . . . the disclosure.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 2517(1). As explained\nabove, numerous officers within the Department qualify as \xe2\x80\x9cinvestigative\nor law enforcement officer[s]\xe2\x80\x9d under section 2510(7). Their \xe2\x80\x9cofficial\nduties\xe2\x80\x9d related to law enforcement\xe2\x80\x94and, thus, the functions in connection\nwith which they may disclose Title III information\xe2\x80\x94vary according to\ntheir roles. Line-level officials, such as FBI agents and Assistant U.S.\nAttorneys, perform duties related to law enforcement through on-the28\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nground activities, such as investigating, making arrests for, and prosecuting crimes. See id. \xc2\xa7 2510(7). Higher-ranking Department officials perform duties related to law enforcement when they direct and supervise\nthose activities, such as by approving search warrant and wiretap applications, managing criminal investigations, and setting trial strategy\xe2\x80\x94all\nfunctions that are integral parts of the prevention, investigation, and\nprosecution of criminal offenses. See, e.g., United States v. Sells Eng\xe2\x80\x99g,\nInc., 463 U.S. 418, 429 n.11 (1983) (recognizing that a prosecutor \xe2\x80\x9cconduct[s] criminal matters\xe2\x80\x9d in his role as a \xe2\x80\x9csupervisor\xe2\x80\x9d as well as by\nappearing before a grand jury); 18 U.S.C. \xc2\xa7 2510(7) (stating that any\nattorney who is authorized to \xe2\x80\x9cparticipate in the prosecution\xe2\x80\x9d of an enumerated offense is an investigative or law enforcement officer). These\nofficials may therefore disclose Title III information to OIG agents to the\nextent that doing so would be appropriate to the proper performance of\nthese various functions, including \xe2\x80\x9cfor the purpose of obtaining assistance\xe2\x80\x9d in carrying them out. Title III Intelligence Community, 24 Op.\nO.L.C. at 269; see id. at 261. 8\nIn addition, in our view, members of Department leadership perform\nofficial duties related to law enforcement when they supervise law enforcement activities on a programmatic or policy basis\xe2\x80\x94for example,\nwhen they issue guidelines for the exercise of prosecutorial discretion, or\nset rules governing the conduct of line-level officers. See, e.g., Memorandum for Heads of Department of Justice Components and United States\nAttorneys from the Attorney General, Re: Federal Prosecution Priorities\n(Aug. 12, 2013) (listing factors that prosecutors should consider in setting\nprosecution priorities); FBI, Domestic Investigations and Operations\nGuide (Oct. 15, 2011) (establishing policies for the conduct of the FBI\xe2\x80\x99s\ndomestic 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\ndecisions made on a case-by-case basis: A Department policy prohibiting\na particular law enforcement tactic or mandating certain charging deciFor example, if OIG investigated a Department employee for alleged criminal misconduct and then referred the matter for prosecution, the prosecutor might subsequently\nseek to consult with OIG about its investigation in the course of preparing or conducting\nthe 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.\n8\n\n29\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nsions, for instance, can affect the conduct of a large number of investigations and prosecutions all at once. See Van de Kamp v. Goldstein, 555\nU.S. 335, 346 (2009) (stating that \xe2\x80\x9csupervisory prosecutors\xe2\x80\x9d are entitled\nto the same degree of prosecutorial immunity when formulating \xe2\x80\x9cgeneral\nmethods of supervision and training\xe2\x80\x9d as when taking \xe2\x80\x9cactions related to an\nindividual trial,\xe2\x80\x9d because both activities are \xe2\x80\x9cdirectly connected with the\nprosecutor\xe2\x80\x99s basic trial advocacy duties\xe2\x80\x9d). Such broad-based supervision\nthus \xe2\x80\x9crelate[s] to law enforcement\xe2\x80\x9d in the ordinary sense of that phrase.\nCf. Disclosure of Grand Jury Material to the Intelligence Community,\n21 Op. O.L.C. 159, 171 (1997) (\xe2\x80\x9cRule 6(e) Intelligence Community\xe2\x80\x9d)\n(stating that the Attorney General\xe2\x80\x99s \xe2\x80\x9cduty to enforce federal criminal law\xe2\x80\x9d\nwithin the meaning of Federal Rule of Criminal Procedure 6(e)(3)(A)(ii)\nincludes the supervision of \xe2\x80\x9ca broad criminal law enforcement program\xe2\x80\x9d).\nMoreover, given the size of the Department, such programmatic and\npolicy supervision is a primary means by which the Attorney General and\nother Department leadership officials evaluate and direct the Department\xe2\x80\x99s law enforcement activities, including its use of Title III authorities.\nIf that supervision did not constitute an \xe2\x80\x9cofficial dut[y]\xe2\x80\x9d 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\nofficers were exercising their Title III authorities responsibly and lawfully, or to conduct general management and supervision of Department law\nenforcement activities that made use of Title III materials. We think it\nunlikely that Congress intended to handicap leadership officials in this\nway. Indeed, interpreting Title III to impair programmatic or policy supervision of the use of Title III authorities and materials would undermine\nCongress\xe2\x80\x99s goal of \xe2\x80\x9cprotect[ing] privacy to the maximum extent possible,\nconsistent with permitting electronic surveillance for law enforcement\npurposes.\xe2\x80\x9d Title III Intelligence Community, 24 Op. O.L.C. at 265; cf.\nUnited States v. Giordano, 469 F.2d 522, 527 (4th Cir. 1972) (noting that\n\xe2\x80\x9c[b]ecause of the delicate nature of the power to initiate surveillance\napplications,\xe2\x80\x9d Congress took care to ensure that \xe2\x80\x9cthe implementation\xe2\x80\x9d of\nthis authority \xe2\x80\x9cwas reserved to\xe2\x80\x9d high-level leadership officials within the\nDepartment). These considerations reinforce our conclusion that supervising law enforcement activities on a programmatic or policy basis qualifies\nas an \xe2\x80\x9cofficial dut[y]\xe2\x80\x9d related to law enforcement within the meaning of\nsection 2517(1).\n30\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nA Department leadership official may therefore disclose Title III materials to OIG agents when doing so would be appropriate to the performance of that official\xe2\x80\x99s duty to supervise law enforcement activities on a\nprogrammatic or policy basis. And, while we will not attempt to specify in\nthe abstract all situations in which such disclosures would be appropriate,\nwe think that, in general, a wide range of OIG investigations and reviews\nwould likely assist Department leadership officials in conducting such\nprogrammatic and policy supervision. One of the central purposes of\nOIG\xe2\x80\x99s reviews and investigations is to assist Department leadership in\nsupervising the Department: As noted above, Congress enacted the IG Act\nin part to \xe2\x80\x9cprovide a means for keeping the head of [each] [agency] . . .\nfully and currently informed about problems and deficiencies relating to\nthe administration of [the agency\xe2\x80\x99s] programs and operations and the\nnecessity for and progress of corrective action,\xe2\x80\x9d 5 U.S.C. app. \xc2\xa7 2(3), and\nit assigned OIG the statutory duty of providing reports and recommendations about such issues to Department leadership, see id. \xc2\xa7 4(a)(5). Moreover, consistent with Congress\xe2\x80\x99s purpose, \xe2\x80\x9cOIG\xe2\x80\x99s reports of its investigations and reviews have historically provided the Attorney General and\nDeputy Attorney General with critical advice, information, and insights in\nconnection with the exercise of their supervisory responsibilities over the\nDepartment\xe2\x80\x99s programs and operations.\xe2\x80\x9d Letter for Michael E. Horowitz,\nInspector General, from Sally Quillian Yates, Acting Deputy Attorney\nGeneral, at 2 (Apr. 23, 2015) (\xe2\x80\x9cYates Letter\xe2\x80\x9d). We therefore believe that it\nwould generally be \xe2\x80\x9cappropriate to the proper performance of the official\nduties\xe2\x80\x9d of a member of the Department\xe2\x80\x99s leadership to disclose Title III\ninformation to OIG agents in connection with investigations or reviews of\nlaw enforcement programs and operations that could inform supervisory\ndecisions made by Department leadership about such programs and operations; that is, investigations or reviews that concern, or are designed to\ndevelop recommendations about, the manner in which the Department\nprevents, investigates, or prosecutes crimes. 9\n9 For example, the initial request for this opinion was prompted by three recent OIG\nreviews: a review of Operation Fast and Furious (an investigation of firearms trafficking,\nconducted by the Department\xe2\x80\x99s Bureau of Alcohol, Tobacco, Firearms, and Explosives,\nthat employed a controversial investigative technique); a review of the FBI\xe2\x80\x99s alleged\nmisuse of the material witness statute, 18 U.S.C. \xc2\xa7 3144, to detain persons suspected of\ncriminal conduct rather than potential witnesses; and a review of the FBI\xe2\x80\x99s use of Nation-\n\n31\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nWe now turn to disclosures that would be appropriate to the proper performance of the official duties of the officer \xe2\x80\x9creceiving the disclosure\xe2\x80\x9d\xe2\x80\x94\nin this case, OIG agents. As noted above, this Office has previously\nconcluded that OIG agents qualify as \xe2\x80\x9cinvestigative officer[s]\xe2\x80\x9d under\nsection 2510(7) by virtue of their authority to investigate allegations of\ncriminal wrongdoing\xe2\x80\x94including offenses enumerated in section 2516\xe2\x80\x94\nby Department employees, contractors, and grantees. Investigative Officers, 14 Op. O.L.C. at 109 (alteration in original). Because investigations\nof alleged criminal wrongdoing are plainly \xe2\x80\x9cofficial duties\xe2\x80\x9d related to law\nenforcement, section 2517(1) authorizes Department investigative and law\nenforcement officers to disclose Title III information to OIG agents as\n\xe2\x80\x9cappropriate to the proper performance\xe2\x80\x9d of OIG\xe2\x80\x99s investigations of alleged criminal wrongdoing by Department employees, contractors, or\ngrantees, including administrative misconduct investigations that have a\nreasonable prospect of identifying criminal wrongdoing.\nWe further believe that OIG officials perform \xe2\x80\x9cofficial duties\xe2\x80\x9d related\nto law enforcement within the meaning of section 2517(1) when they\nconduct investigations and reviews that could help Department leadership\nofficials make supervisory decisions regarding the Department\xe2\x80\x99s law\nenforcement programs, policies, and practices. As we have already noted,\nCongress placed OIG within the Department of Justice, the nation\xe2\x80\x99s\nprincipal law enforcement agency, see 5 U.S.C. app. \xc2\xa7\xc2\xa7 2(A), 12(2); 28\nU.S.C. \xc2\xa7 501 et seq., and assigned it the \xe2\x80\x9cduty and responsibility\xe2\x80\x9d of\nreviewing the Department\xe2\x80\x99s programs and operations, including its programs and operations related to law enforcement, in order to help the\nAttorney General and her assistants better manage those programs and\noperations, 5 U.S.C. app. \xc2\xa7 4(a). OIG agents thus have responsibilities\nthat are closely related to Department leadership\xe2\x80\x99s duty to supervise and\nmanage the Department\xe2\x80\x99s law enforcement functions on a programmatic\nand policy basis, and are therefore sufficiently related to law enforcement\nto constitute \xe2\x80\x9cofficial duties\xe2\x80\x9d under section 2517(1).\n\nal Security and Exigent Letters. All three of these investigations concerned operational\nquestions related to the Department\xe2\x80\x99s prevention, investigation, or prosecution of criminal\nconduct, and all promised to directly inform Department leadership\xe2\x80\x99s supervision of these\nactivities. Department leadership could therefore properly disclose Title III information to\nOIG in connection with all three investigations under section 2517(1).\n\n32\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nWe recognize that, in at least two respects, OIG reviews of Department law enforcement operations have a more attenuated relationship to\nthe actual conduct of those operations than policy and programmatic\nsupervision conducted by Department leadership; but we do not think\nthat either of these distinctions prevents the conduct of such reviews\nfrom constituting an \xe2\x80\x9cofficial dut[y]\xe2\x80\x9d under section 2517(1). First, OIG\nprovides information and recommendations that may inform supervisory\ndecisions made by Department leadership, but it does not\xe2\x80\x94and cannot\xe2\x80\x94\nactually make operational decisions concerning the Department\xe2\x80\x99s law\nenforcement activities. See Authority to Conduct Regulatory Investigations, 13 Op. O.L.C. at 62 (concluding that inspectors general may not\nconduct \xe2\x80\x9cinvestigations constituting an integral part of the programs\ninvolved\xe2\x80\x9d); 5 U.S.C. app. \xc2\xa7 9(a) (prohibiting the Attorney General from\ntransferring to OIG \xe2\x80\x9cprogram operating responsibilities\xe2\x80\x9d). Neither the\nstatutory phrase \xe2\x80\x9cofficial duties,\xe2\x80\x9d however, nor our prior conclusion that\nthis phrase encompasses duties that \xe2\x80\x9crelate to law enforcement,\xe2\x80\x9d Title III\nIntelligence Community, 24 Op. O.L.C. at 271, requires that such duties\ninvolve operational law enforcement responsibilities. Indeed, such a\nrequirement would exclude activities that are essential to the effective\nconduct of core law enforcement functions. It is difficult to imagine how\nmost law enforcement duties, including the duty to set relevant policy\nand conduct programmatic supervision, could be carried out responsibly\nwithout the benefit of the fact-finding and evaluative work necessary to\ninform them. And it would make little sense to conclude that, for example, the Attorney General and her assistants are not engaged in \xe2\x80\x9cofficial\nduties\xe2\x80\x9d related to law enforcement, and thus cannot obtain relevant Title\nIII information, when they conduct a review of a law enforcement program that relies on such information, but that the Attorney General is\nengaged in a law enforcement duty, and thus may obtain such access,\nwhen she ultimately issues direction or guidance about that program. We\ntherefore think that the duty to review and investigate law enforcement\nprograms, like the duty to supervise those programs on a programmatic\nor policy level, qualifies as an \xe2\x80\x9cofficial dut[y]\xe2\x80\x9d related to law enforcement under section 2517(1).\nSecond, in providing its recommendations and analysis to the Attorney\nGeneral, OIG is insulated to some degree from the Attorney General\xe2\x80\x99s\ndirection and supervision. See 5 U.S.C. app. \xc2\xa7 3(a) (providing that the\n33\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nAttorney General may not \xe2\x80\x9cprevent or prohibit the Inspector General from\ninitiating, carrying out, or completing any audit or investigation\xe2\x80\x9d); id.\n\xc2\xa7 8E(a) (qualifying this limitation with respect to \xe2\x80\x9caudits or investigations\n. . . which require access to [certain] sensitive information\xe2\x80\x9d). Moreover,\nunlike other Department components or officials that conduct fact-finding\ninvestigations or make recommendations to Department leadership, OIG\nexercises authority conferred directly by Congress in the IG Act, rather\nthan authority shared with or delegated by the Attorney General. Compare\nid. \xc2\xa7\xc2\xa7 4(a), 6(a) (granting various authorities to inspectors general), with\n28 U.S.C. \xc2\xa7 509 (vesting in the Attorney General, with certain minor\nexceptions, \xe2\x80\x9c[a]ll functions of other officers of the [Department] and all\nfunctions of agencies and employees of the [Department]\xe2\x80\x9d), and id. \xc2\xa7 510\n(authorizing the Attorney General to \xe2\x80\x9cauthoriz[e] the performance by any\nother officer, employee, or agency of the [Department] of any function of\nthe Attorney General\xe2\x80\x9d). OIG thus falls in important respects outside the\nDepartment\xe2\x80\x99s chain of command when it conducts investigations and\ndevelops recommendations.\nBut OIG\xe2\x80\x99s relative independence from the Department\xe2\x80\x99s leadership\ndoes not in our view undermine the value of its reviews or advice, or\nmean that its \xe2\x80\x9cofficial dut[y]\xe2\x80\x9d to undertake such reviews and provide\nsuch advice is unrelated to the ultimate supervisory law enforcement\ndecisions made by Department leadership. To the contrary, Congress\ncreated OIG precisely because it believed that establishing an independent and objective entity to evaluate the Department\xe2\x80\x99s programs and\noperations would enhance the quality of such evaluations. See H.R.\nRep. No. 100-771, at 8\xe2\x80\x939 (1988) (explaining that a lack of independence\nimpaired the effectiveness of the Department\xe2\x80\x99s internal audit and investigation components). We are reluctant to conclude that the relative independence that Congress determined would improve the value of OIG\xe2\x80\x99s\nreviews at the same time renders them insufficiently \xe2\x80\x9crelated to law\nenforcement\xe2\x80\x9d to support disclosure of the Title III information OIG needs\nto perform such reviews effectively.\nConsequently, we believe that OIG investigations and reviews that concern, or are designed to develop recommendations about, the manner in\nwhich the Department prevents, investigates, or prosecutes crimes \xe2\x80\x9cserve\ncriminal law investigation and enforcement objectives\xe2\x80\x9d and \xe2\x80\x9crelate to law\nenforcement,\xe2\x80\x9d as our Title III Intelligence Community opinion requires.\n34\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\n24 Op. O.L.C. at 265, 271 (internal quotation marks omitted). As a result,\nwe think that OIG agents can obtain Title III information directly from\nDepartment investigative and law enforcement officers, for use in such\ninvestigations and reviews, based on the OIG agents\xe2\x80\x99 own \xe2\x80\x9cofficial duties\xe2\x80\x9d to conduct such reviews for the benefit of Department leadership\xe2\x80\x94\nand not simply from Department leadership based on the leadership\nofficials\xe2\x80\x99 duty to supervise Department operations.\nFinally, although we have concluded that the \xe2\x80\x9cofficial duties\xe2\x80\x9d of Department leadership officials and OIG agents for Title III purposes encompass many of their responsibilities, it does not follow that disclosing\nTitle III materials in connection with an OIG audit, investigation, or\nreview is \xe2\x80\x9cappropriate to the proper performance of the official duties\xe2\x80\x9d of\nDepartment leadership or OIG agents in every instance. Cf. OIG 2014\nMemorandum at 11. In particular, reviews that are either unrelated to, or\nhave only an attenuated connection with, the conduct of the Department\xe2\x80\x99s\nlaw enforcement programs and operations do not, in our view, constitute\n(or promise to assist with) \xe2\x80\x9cofficial duties\xe2\x80\x9d related to law enforcement.\nFor example, it is unlikely that an OIG review of one of the Department\xe2\x80\x99s\nnon-law enforcement activities, such as civil litigation, would be sufficiently related to the Department\xe2\x80\x99s law enforcement programs and operations to justify disclosure under section 2517(1), unless that review were\naimed at uncovering criminal misconduct. Similarly, we doubt that a\nroutine financial audit of a Department component, or a review of a component\xe2\x80\x99s record-keeping practices, would justify disclosure of Title III\ninformation under section 2517(1) merely because that component engaged in law enforcement activities. Although sound finances and good\nrecord-keeping may enable a law enforcement component to conduct its\nfunctions more effectively, such an audit or investigation would not be\naimed at evaluating the conduct of law enforcement activities themselves,\nor uncovering criminal conduct by Department employees. Construing\nsection 2517(1) to permit disclosure of Title III information in connection\nwith reviews that are so tangentially related to law enforcement activities\nwould reduce that provision to the kind of \xe2\x80\x9chighly elastic limitation on\ndisclosure\xe2\x80\x9d among law enforcement and investigative officers that Congress did not intend. Title III Intelligence Community, 24 Op. O.L.C. at\n265; cf. Rural Housing Alliance v. U.S. Dep\xe2\x80\x99t of Agric., 498 F.2d 73, 81\n(D.C. Cir. 1974) (rejecting a construction of the exemption for \xe2\x80\x9cinvestiga35\n\n\x0c39 Op. O.L.C. 12 (2015)\n\ntory files compiled for enforcement purposes\xe2\x80\x9d in the Freedom of Information Act under which that exemption would encompass records from a\ncompliance audit that might result in administrative or criminal sanctions,\nbecause that construction would cause the exemption to \xe2\x80\x9cswallow[] up the\nAct\xe2\x80\x9d).\nIn sum, we conclude that section 2517(1) permits Department investigative or law enforcement officers to disclose Title III information to OIG\nagents in connection with many, but not all, OIG investigations and\nreviews. Line-level Department officers may disclose Title III information\nto OIG agents to assist the disclosing officers in preventing, investigating,\nor prosecuting criminal conduct. Any Department officer may disclose\nTitle III information to OIG agents to assist OIG in its investigations of\ncriminal misconduct by Department employees, contractors, or grantees,\nincluding administrative misconduct investigations that have a reasonable\nprospect of uncovering criminal violations. And because Department\nleadership officials have a duty to conduct policy and programmatic\nsupervision of the Department\xe2\x80\x99s law enforcement activities\xe2\x80\x94and because\nOIG has a duty to conduct investigations and reviews that could assist\nDepartment leadership in carrying out that supervision\xe2\x80\x94any Department\nofficer may disclose Title III information to assist OIG in performing such\ninvestigations and reviews where they concern, or are designed to develop\nrecommendations about, the manner in which the Department prevents,\ninvestigates, or prosecutes crimes. Section 2517(1) does not, however,\npermit OIG agents to obtain Title III information in connection with\nreviews that are either unrelated to, or have only an attenuated relationship with, the conduct of the Department\xe2\x80\x99s law enforcement activities.\nB.\nWe now turn to OIG\xe2\x80\x99s eligibility to obtain grand jury materials. Federal Rule of Criminal Procedure 6(e) \xe2\x80\x9ccodifies the traditional rule of grand\njury secrecy,\xe2\x80\x9d which is designed to ensure \xe2\x80\x9cthe proper functioning of our\ngrand jury system\xe2\x80\x9d by encouraging prospective witnesses to \xe2\x80\x9ccome\nforward\xe2\x80\x9d and \xe2\x80\x9ctestify fully and frankly,\xe2\x80\x9d lessening the \xe2\x80\x9crisk that those\nabout to be indicted w[ill] flee, or w[ill] try to influence individual grand\njurors to vote against indictment,\xe2\x80\x9d and protecting the innocent from\n\xe2\x80\x9cbe[ing] held up to public ridicule.\xe2\x80\x9d Sells, 463 U.S. at 424\xe2\x80\x9325 (quoting\nDouglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 218\xe2\x80\x9319 (1979)). In\n36\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\norder to achieve these objectives, Rule 6(e) prohibits several specified\nclasses of individuals, including \xe2\x80\x9cattorney[s] for the government,\xe2\x80\x9d from\ndisclosing \xe2\x80\x9ca matter occurring before the grand jury.\xe2\x80\x9d Fed. R. Crim. P.\n6(e)(2)(B). This rule of secrecy, however, is not absolute: A court may\nauthorize the disclosure of grand jury materials in certain circumstances,\nFed. R. Crim. P. 6(e)(3)(E), and an attorney for the government may\ndisclose information without court authorization pursuant to several\nexceptions enumerated in paragraph (3) of Rule 6(e).\nOIG contends that these exceptions authorize its attorneys to receive\ngrand jury materials that are relevant to OIG investigations. Principally,\nOIG argues that Department attorneys may disclose grand jury information to OIG under the exception set forth in Rule 6(e)(3)(A)(i) (\xe2\x80\x9cexception (A)(i)\xe2\x80\x9d), which permits the disclosure of grand jury information to\n\xe2\x80\x9can attorney for the government for use in performing that attorney\xe2\x80\x99s\nduty.\xe2\x80\x9d See OIG 2015 E-mail; OIG 2014 Memorandum at 9\xe2\x80\x9310; OIG\nSupplemental Memorandum at 19\xe2\x80\x9326. In addition, although OIG does not\nrely on the provision, we have considered whether OIG attorneys may\nobtain grand jury information under the exception set forth in Rule\n6(e)(3)(A)(ii) (\xe2\x80\x9cexception (A)(ii)\xe2\x80\x9d), which authorizes disclosures to \xe2\x80\x9cany\ngovernment personnel . . . that an attorney for the government considers\nnecessary to assist in performing that attorney\xe2\x80\x99s duty to enforce federal\ncriminal law.\xe2\x80\x9d For the reasons set forth below, we conclude that exception\n(A)(i) does not authorize Department attorneys to disclose grand jury\nmaterials to OIG attorneys, but that exception (A)(ii) authorizes disclosures to OIG officials in a wide range of circumstances, including in\nconnection with OIG reviews that a member of Department leadership\nconcludes could assist her in supervising the Department\xe2\x80\x99s criminal law\nenforcement programs and operations. 10\n10 OIG also argues that it is entitled to disclosure of some grand jury materials under subsection 6(e)(3)(D) (\xe2\x80\x9cexception (D)\xe2\x80\x9d), which authorizes an attorney for the\ngovernment to disclose grand jury material \xe2\x80\x9cinvolving foreign intelligence, counterintelligence . . . , or foreign intelligence information\xe2\x80\x9d to a range of officials, including\n\xe2\x80\x9cfederal law enforcement . . . official[s],\xe2\x80\x9d in order to \xe2\x80\x9cassist the official receiving the\ninformation in the performance of that official\xe2\x80\x99s duties.\xe2\x80\x9d See OIG Supplemental\nMemorandum at 26\xe2\x80\x9345. We believe the applicability of exception (D) to OIG presents\na difficult question. In light of our conclusion that exception (A)(ii) permits the\nDepartment leadership to provide OIG with access to grand jury material in a wide\nrange of circumstances, see infra Part II.B.2, we decline to address the scope of ex-\n\n37\n\n\x0c39 Op. O.L.C. 12 (2015)\n\n1.\nWe begin with exception (A)(i). It provides: \xe2\x80\x9cDisclosure of a grandjury matter\xe2\x80\x94other than the grand jury\xe2\x80\x99s deliberations or any grand juror\xe2\x80\x99s\nvote\xe2\x80\x94may be made to . . . an attorney for the government for use in\nperforming that attorney\xe2\x80\x99s duty.\xe2\x80\x9d Fed. R. Crim. P. 6(e)(3)(A). A person\nmay make a disclosure under this provision without obtaining authorization from the court that impaneled the grand jury or notifying the court of\nthe disclosure. Cf. Fed. R. Crim. P. 6(e)(3)(B), (E).\nOIG argues that exception (A)(i) authorizes Department attorneys to\ndisclose grand jury information to OIG attorneys for use in conducting\nany OIG audit, investigation, or review. OIG observes that, in a prior\nmemorandum, this Office concluded that attorneys from the Department\xe2\x80\x99s\nOffice of Professional Responsibility (\xe2\x80\x9cOPR\xe2\x80\x9d) could obtain grand jury\ninformation under exception (A)(i) for use in investigating charges of\nmisconduct by prosecutors or other Department employees who had\nassisted in grand jury investigations. See OIG Supplemental Memorandum at 20\xe2\x80\x9322 (citing Memorandum for Michael Shaheen, Jr., Counsel,\nOPR, from Robert B. Shanks, Deputy Assistant Attorney General, Office\nof Legal Counsel, Re: Disclosure of Grand Jury Material to the Office of\nProfessional Responsibility (Jan. 6, 1984) (\xe2\x80\x9cOPR Memorandum\xe2\x80\x9d)). OIG\ncontends that because its attorneys, like OPR attorneys, are authorized to\nassist the Attorney General in supervising the Department, they qualify as\n\xe2\x80\x9cattorney[s] for the government\xe2\x80\x9d who may receive disclosures under\nexception (A)(i). See OIG 2015 E-mail. OIG further argues that its attorneys perform a \xe2\x80\x9cduty\xe2\x80\x9d closely analogous to OPR\xe2\x80\x99s when they investigate\nallegations of misconduct by the Department\xe2\x80\x99s law enforcement officers.\nOIG claims that as a result, exception (A)(i) likewise permits its attorneys\nto receive grand jury information in connection with its investigations.\nSee OIG Supplemental Memorandum at 22\xe2\x80\x9324.\n\nception (D) here. Rule 6(e)(3) also includes exceptions to Rule 6(e)\xe2\x80\x99s secrecy requirements for (1) certain disclosures relating to banking matters and civil forfeiture authorized by 18 U.S.C. \xc2\xa7 3322, see Fed. R. Crim. P. 6(e)(3)(A)(iii); (2) disclosures to\nanother 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\ndo not address the application of those exceptions in this opinion.\n\n38\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nThe starting point for OIG\xe2\x80\x99s argument is United States v. Sells Engineering. In that case, the Supreme Court considered whether exception\n(A)(i) authorizes the Department\xe2\x80\x99s Civil Division to obtain grand jury\nmaterials for use in preparing and litigating civil lawsuits. See 463 U.S.\nat 420. The Court concluded first that Civil Division attorneys, like \xe2\x80\x9cvirtually every attorney in the Department of Justice,\xe2\x80\x9d were \xe2\x80\x9cwithin the class\nof \xe2\x80\x98attorneys for the government\xe2\x80\x99 to whom (A)(i) allows disclosure without a court order.\xe2\x80\x9d Id. at 426, 427\xe2\x80\x9328. The Federal Rules of Criminal\nProcedure, the Court explained, define \xe2\x80\x9cattorneys for the government\xe2\x80\x9d to\ninclude \xe2\x80\x9c\xe2\x80\x98authorized assistants of the Attorney General\xe2\x80\x99\xe2\x80\x9d; and the Attorney General may direct almost \xe2\x80\x9cany attorney employed by the Department\xe2\x80\x9d\xe2\x80\x94including Civil Division attorneys\xe2\x80\x94\xe2\x80\x9cto conduct \xe2\x80\x98any kind of\nlegal proceeding, civil or criminal, including grand jury proceedings.\xe2\x80\x99\xe2\x80\x9d Id.\nat 428 (quoting Fed. R. Crim. P. 54(c) (1983); 28 U.S.C. \xc2\xa7 515(a)). 11 It\nwas therefore \xe2\x80\x9cimmaterial,\xe2\x80\x9d in the Court\xe2\x80\x99s view, that \xe2\x80\x9ccertain attorneys\nhappen[ed] to be assigned to a unit called the Civil Division, or that their\nusual duties involve[d] only civil cases.\xe2\x80\x9d Id. Because such attorneys,\nnotwithstanding such an assignment, could be detailed or assigned to conduct \xe2\x80\x9ccriminal grand jury investigation[s],\xe2\x80\x9d they counted as \xe2\x80\x9cattorneys for\nthe government\xe2\x80\x9d under the Rules. Id.\nNonetheless, the Court held that the use of grand jury information for\ncivil purposes\xe2\x80\x94even by an \xe2\x80\x9cattorney for the government\xe2\x80\x9d exercising her\nofficial duties\xe2\x80\x94did not constitute \xe2\x80\x9cuse in the performance of such attorney\xe2\x80\x99s duty\xe2\x80\x9d within the meaning of exception (A)(i). 12 In the Court\xe2\x80\x99s view,\nCongress did not intend exception (A)(i) to mean \xe2\x80\x9cthat any Justice Department attorney is free to rummage through the records of any grand\njury in the country, simply by right of office,\xe2\x80\x9d id., or to authorize access\nto grand jury material to serve \xe2\x80\x9cthe general and multifarious purposes of\nthe Department of Justice,\xe2\x80\x9d id. at 429. The Court based its conclusion\nprimarily on the purpose behind exception (A)(i). It explained that Rule\n6(e) permits government attorneys to obtain otherwise secret grand jury\nRule 54(c) was transferred to Rule 1(b)(1) when the Rules were amended in 2002.\nThe language of this provision has been modified slightly since Sells. Compare Fed.\nR. Crim. P. 6(e)(3)(A)(i) (1979) (\xe2\x80\x9can attorney for the government for use in the performance of such attorney\xe2\x80\x99s duty\xe2\x80\x9d), with Fed. R. Crim. P. 6(e)(3)(A)(i) (2015) (\xe2\x80\x9can attorney\nfor the government for use in performing that attorney\xe2\x80\x99s duty\xe2\x80\x9d). We believe this change is\nimmaterial for purposes of this opinion.\n11\n12\n\n39\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nmaterials only \xe2\x80\x9cbecause both the grand jury\xe2\x80\x99s functions and their own\nprosecutorial duties require it.\xe2\x80\x9d Id.; see id. at 428\xe2\x80\x9329 (quoting Fed. R.\nCrim. P. 6(e) advisory committee\xe2\x80\x99s note (1944)). A prosecutor working on\na criminal matter \xe2\x80\x9cneeds to know what transpires before the grand jury,\xe2\x80\x9d\nin order to \xe2\x80\x9cbring[] matters to the attention of the grand jury,\xe2\x80\x9d \xe2\x80\x9cadvise[]\nthe lay jury on the applicable law,\xe2\x80\x9d and \xe2\x80\x9cdetermine whether it is in the\ninterests of justice to proceed with prosecution.\xe2\x80\x9d Id. at 430. A civil attorney\xe2\x80\x99s \xe2\x80\x9cneed for access,\xe2\x80\x9d in contrast, \xe2\x80\x9cis ordinarily nothing more than a\nmatter of saving [the] time and expense\xe2\x80\x9d of civil discovery. Id. at 431. As\na result, \xe2\x80\x9cdisclosure for civil use [is] unjustified by the considerations\nsupporting prosecutorial access.\xe2\x80\x9d Id. Moreover, the Court continued,\ngranting attorneys the right to obtain grand jury materials for use in civil\nlitigation would \xe2\x80\x9cthreaten[] to do affirmative mischief.\xe2\x80\x9d Id. Such a broad\nright of access might discourage witnesses from testifying before the\ngrand jury \xe2\x80\x9cfor fear that [they] will get [themselves] into trouble in some\nother forum,\xe2\x80\x9d \xe2\x80\x9ctempt[]\xe2\x80\x9d prosecutors to \xe2\x80\x9cmanipulate the grand jury\xe2\x80\x99s\npowerful investigative tools . . . to elicit evidence for use in a civil case,\xe2\x80\x9d\nand \xe2\x80\x9csubvert the limitations applied outside the grand jury context on the\nGovernment\xe2\x80\x99s powers of discovery and investigation.\xe2\x80\x9d Id. at 432\xe2\x80\x9333.\nSignificantly, the Court made clear that it did \xe2\x80\x9cnot mean to suggest that\n(A)(i) access to grand jury materials is limited to those prosecutors who\nactually did appear before the grand jury.\xe2\x80\x9d Id. at 429 n.11. Rather, the\nCourt noted that \xe2\x80\x9canyone working on a given prosecution would clearly\nbe eligible under [the Federal Rules] to enter the grand jury room,\xe2\x80\x9d even\nif such a person did not do so. Id. Accordingly, the Court found that the\nintent of the rule was to authorize \xe2\x80\x9cevery attorney (including a supervisor)\nwho is working on a prosecution [to] have access to grand jury materials,\nat least while he is conducting criminal matters,\xe2\x80\x9d in order \xe2\x80\x9cto facilitate\neffective working of the prosecution team.\xe2\x80\x9d Id. (emphasis omitted).\nIn the wake of the Supreme Court\xe2\x80\x99s decision in Sells, OPR asked this\nOffice whether its attorneys could continue to obtain access to grand jury\nmaterials under exception (A)(i) when \xe2\x80\x9cinvestigating charges that prosecutors or Department employees assisting grand jury investigations ha[d]\nengaged in misconduct.\xe2\x80\x9d OPR Memorandum at 1. In an unpublished\nmemorandum that forms the basis for OIG\xe2\x80\x99s argument here, we advised\nthat OPR attorneys could \xe2\x80\x9cprobably\xe2\x80\x9d do so. Id. at 2. We acknowledged\nthat \xe2\x80\x9cthe broad language in Sells, on its face, would appear to prohibit\n40\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nautomatic disclosure\xe2\x80\x9d to OPR attorneys, because they \xe2\x80\x9cwould usually be\nusing the materials for civil, not criminal, purposes\xe2\x80\x9d\xe2\x80\x94i.e., in connection\nwith administrative misconduct proceedings\xe2\x80\x94and because \xe2\x80\x9cthey are not\nthe \xe2\x80\x98attorneys who conduct the criminal matters to which the materials\npertain.\xe2\x80\x99\xe2\x80\x9d Id. at 4 (quoting Sells, 463 U.S. at 427). Nonetheless, we observed that two \xe2\x80\x9cstrong arguments [could] be made\xe2\x80\x9d in support of OPR\xe2\x80\x99s\neligibility for disclosure under exception (A)(i). Id.\nFirst, we noted that permitting the automatic disclosure of grand jury\nmaterials to OPR attorneys would not \xe2\x80\x9craise[] the same type of policy\nconcerns that were relied upon by the Sells Court.\xe2\x80\x9d Id. at 6. The Civil\nDivision attorneys in Sells, we explained, had sought grand jury materials\n\xe2\x80\x9cfor possible use in civil actions against the targets of the grand jury\ninquiry,\xe2\x80\x9d while OPR attorneys sought those materials \xe2\x80\x9cto oversee the\nconduct of the government attorneys and investigators assisting the grand\njury.\xe2\x80\x9d Id. at 4\xe2\x80\x935. Thus, unlike in Sells, \xe2\x80\x9conly the conduct of government\nprosecutors,\xe2\x80\x9d and not the conduct of the targets of the grand jury inquiry,\n\xe2\x80\x9cwould be subject to scrutiny.\xe2\x80\x9d Id. at 5. As a result, disclosing grand jury\nmaterials to OPR attorneys would neither \xe2\x80\x9chinder[]\xe2\x80\x9d the \xe2\x80\x9cwillingness of\nwitnesses to testify\xe2\x80\x9d nor \xe2\x80\x9ccreate an incentive for criminal attorneys to\nabuse the grand jury process in order to pursue civil discovery.\xe2\x80\x9d Id.\nSecond, we believed that disclosures to OPR attorneys would \xe2\x80\x9cfall\ngenerally within the supervisor exception\xe2\x80\x9d articulated in Sells. Id. at 7.\nWe noted that the Sells Court had recognized that grand jury materials\ncould be \xe2\x80\x9cdisclosed to some persons who may not technically be considered \xe2\x80\x98prosecutors,\xe2\x80\x99 such as Department \xe2\x80\x98supervisors\xe2\x80\x99 and members of the\n\xe2\x80\x98prosecution team,\xe2\x80\x99 but who nevertheless are indispensable to an effective criminal law enforcement effort.\xe2\x80\x9d Id. at 6 (citation omitted) (quoting\nSells, 463 U.S. at 429 n.11). We thought this exception \xe2\x80\x9cwould clearly\ncover certain exchanges [of grand jury information]\xe2\x80\x9d that were \xe2\x80\x9canalogous\xe2\x80\x9d to disclosures to OPR. Id. In particular, we thought there was \xe2\x80\x9cno\nquestion\xe2\x80\x9d that prosecutors could \xe2\x80\x9cask ethics counselors to accompany\nthem into the grand jury room to give direct counsel when problems\n[arose],\xe2\x80\x9d or that prosecutors could \xe2\x80\x9cdisclose grand jury materials to their\nsuperiors,\xe2\x80\x9d as well as to \xe2\x80\x9cethics attorneys\xe2\x80\x9d advising those supervisors, in\norder \xe2\x80\x9cto seek their instructions on ethical responsibilities.\xe2\x80\x9d Id. at 7. We\ntherefore thought it probable, although \xe2\x80\x9cnot free from doubt,\xe2\x80\x9d that, by the\nsame logic, Department attorneys could obtain grand jury materials \xe2\x80\x9cto\n41\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nevaluate in the course of a separate administrative investigation the\npropriety of prior conduct.\xe2\x80\x9d Id. We reasoned that, \xe2\x80\x9c[t]o perform properly\ntheir oversight role, supervisors not only must be able to review grand\njury materials for purposes of instructing subordinates on future activities, but also must be able to evaluate that conduct once a course of\naction has been set.\xe2\x80\x9d Id. \xe2\x80\x9cA supervisor\xe2\x80\x99s access to grand jury materials,\xe2\x80\x9d\nwe explained, \xe2\x80\x9cshould not be terminated artificially once his subordinates\nhave acted, but should properly include post mortem review of his staff \xe2\x80\x99s\nactivities.\xe2\x80\x9d Id. at 7\xe2\x80\x938. We further noted that OPR attorneys are, by regulation, \xe2\x80\x9cdelegee[s] of the Attorney General for purposes of overseeing\nand advising with respect to the ethical conduct of department attorneys.\xe2\x80\x9d\nId. at 8 (citing 28 C.F.R. \xc2\xa7 0.39a (1983)). Accordingly, we concluded\nthat it was appropriate for OPR attorneys to review grand jury materials\nin order to \xe2\x80\x9cmake recommendations to the Attorney General or other\nsupervisors regarding conduct in particular cases.\xe2\x80\x9d Id. 13\nOIG argues that it is eligible to receive grand jury materials under exception (A)(i) for much the same reason as OPR attorneys. OIG asserts\nthat its attorneys qualify as \xe2\x80\x9cattorney[s] for the government\xe2\x80\x9d because they\nare charged with \xe2\x80\x9cassisting the [Attorney General] in [her] capacity of\noverseeing the operations of the Department.\xe2\x80\x9d OIG 2015 E-mail. And OIG\nargues that its investigations and reviews are comparable to the work\nperformed by OPR attorneys, and thus qualify as \xe2\x80\x9cdut[ies]\xe2\x80\x9d for which OIG\nmay receive grand jury information, because OIG, like OPR, performs\nthose investigations to \xe2\x80\x9coversee[] and advis[e] with respect to the ethical\nconduct\xe2\x80\x9d of Department personnel, and to assist members of the Department\xe2\x80\x99s leadership in \xe2\x80\x9cevaluat[ing] . . . the propriety of prior conduct\xe2\x80\x9d and\nimproving the Department\xe2\x80\x99s law enforcement policies and programs. OPR\nMemorandum at 7\xe2\x80\x938; see OIG Supplemental Memorandum at 22\xe2\x80\x9324.\nWe think that OIG is correct that its duties are similar to OPR\xe2\x80\x99s in important respects; indeed, for the reasons described in Part II.B.2 below, we\nbelieve that OIG personnel may obtain grand jury information under\n13 Recognizing, however, that the broad language in Sells could be read to prohibit\nautomatic disclosure of grand jury materials to OPR attorneys, we suggested \xe2\x80\x9cas a prudential matter\xe2\x80\x9d that OPR seek a court order sanctioning disclosure under exception (A)(i)\nin the first few cases in which it reviewed grand jury materials so that it might \xe2\x80\x9cobtain\nsome clear guidance from the courts on whether the automatic exemption may be employed.\xe2\x80\x9d OPR Memorandum at 9.\n\n42\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nexception (A)(ii) in part because of their responsibility to assist Department leadership in supervising the Department\xe2\x80\x99s law enforcement functions. See infra p. 54. But we disagree that OIG attorneys qualify as\n\xe2\x80\x9cattorney[s] for the government\xe2\x80\x9d within the meaning of the Federal Rules.\nAs we explain below\xe2\x80\x94and as both Sells and numerous courts of appeals\nhave confirmed\xe2\x80\x94an \xe2\x80\x9cattorney for the government\xe2\x80\x9d under the Rules must\nnot merely assist the Attorney General, but must (at a minimum) be capable of conducting criminal proceedings on behalf of the government.\nBecause the IG Act prohibits OIG personnel from engaging in such activities, OIG attorneys cannot qualify for disclosure under exception (A)(i).\nThe Rules define an \xe2\x80\x9cattorney for the government\xe2\x80\x9d as:\n(A) the Attorney General or an authorized assistant;\n(B) a United States attorney or an authorized assistant;\n(C) when applicable to cases arising under Guam law, the Guam\nAttorney General or other person whom Guam law authorizes to act\nin the matter; and\n(D) any other attorney authorized by law to conduct proceedings\nunder these rules as a prosecutor.\nFed. R. Crim. P. 1(b)(1). Most of the categories listed in this definition\nclearly consist of attorneys who are authorized to conduct criminal proceedings on behalf of the government. The Attorney General is authorized\nto \xe2\x80\x9cconduct any kind of legal proceeding, civil or criminal, including\ngrand jury proceedings,\xe2\x80\x9d 28 U.S.C. \xc2\xa7 515(a); United States Attorneys are\ncharged with \xe2\x80\x9cprosecut[ing] . . . all offenses against the United States,\xe2\x80\x9d id.\n\xc2\xa7 547(1); attorneys for the government acting in Guam criminal cases\nmust be \xe2\x80\x9cauthorize[d] to act in th[os]e matter[s]\xe2\x80\x9d under Guam law; and\n\xe2\x80\x9cother attorney[s]\xe2\x80\x9d must be \xe2\x80\x9cauthorized by law to conduct proceedings\nunder [the Rules] as a prosecutor.\xe2\x80\x9d Only the \xe2\x80\x9cauthorized assistant[s]\xe2\x80\x9d to\nthe Attorney General and United States Attorneys described in subparagraphs (A) and (B) are not in plain terms limited to attorneys who are\nauthorized to represent the government in criminal proceedings. In isolation, the phrase \xe2\x80\x9cauthorized assistant\xe2\x80\x9d might be read to encompass persons who \xe2\x80\x9cassist[]\xe2\x80\x9d the Attorney General or a United States Attorney in\nways other than by conducting prosecutions (such as by conducting the\nkinds of investigations of misconduct or law enforcement programs undertaken by OIG). Read in context, however, we think that the term \xe2\x80\x9cau43\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nthorized assistant\xe2\x80\x9d in subparagraphs (A) and (B) refers, like the other\ncategories in Rule 1(b)(1), to prosecutors or other attorneys with authority\nto conduct criminal proceedings on the government\xe2\x80\x99s behalf. This is so for\nat least three reasons.\nFirst, the text of Rule 1(b)(1) supports this reading. The word \xe2\x80\x9cauthorized\xe2\x80\x9d in \xe2\x80\x9cauthorized assistant\xe2\x80\x9d must be read in light of the meaning it has\nin the other parts of the same provision. As noted, subparagraph (C)\nrefers to persons \xe2\x80\x9cwhom Guam law authorizes to act in [a criminal]\nmatter,\xe2\x80\x9d and subparagraph (D) refers to other attorneys \xe2\x80\x9cauthorized by\nlaw to conduct proceedings under these rules as a prosecutor\xe2\x80\x9d (emphases\nadded). Because \xe2\x80\x9csimilar language contained within the same section of a\nstatute must be accorded a consistent meaning,\xe2\x80\x9d Nat\xe2\x80\x99l Credit Union\nAdmin. v. First Nat\xe2\x80\x99l Bank & Trust Co., 522 U.S. 479, 501 (1998), it is\nreasonable to presume that Congress used the term \xe2\x80\x9cauthorized\xe2\x80\x9d in a\nsimilar sense in subparagraphs (A) and (B), to refer to official authorization to conduct proceedings under the Rules as a prosecutor, or otherwise\nto \xe2\x80\x9cact\xe2\x80\x9d in a criminal proceeding in an official capacity. As noted above,\nmoreover, the other categories of government attorneys listed in Rule\n1(b)(1) are clearly authorized to conduct criminal proceedings. In that\ncontext, the term \xe2\x80\x9cauthorized assistant\xe2\x80\x9d is best read to refer as well to\nattorneys who are authorized to conduct criminal proceedings. See United States v. Williams, 553 U.S. 285, 294 (2008) (noting that \xe2\x80\x9ca word is\ngiven more precise content by the neighboring words with which it is\nassociated\xe2\x80\x9d). Additionally, the catchall category set forth in subparagraph\n(D) refers to \xe2\x80\x9cany other attorney authorized by law to conduct proceedings under these rules as a prosecutor\xe2\x80\x9d (emphasis added). That formulation reinforces our conclusion that the preceding categories in the Rule\nconsist of attorneys authorized by law to conduct proceedings under the\nrules as a prosecutor. See Paroline v. United States, 134 S. Ct. 1710,\n1721 (2014) (\xe2\x80\x9cHere, [18 U.S.C.] \xc2\xa7 2259(b)(3)(F) defines a broad, final\ncategory of \xe2\x80\x98other losses suffered . . . as a proximate result of the offense.\xe2\x80\x99 That category is most naturally understood as a summary of the\ntype of losses covered\xe2\x80\x94i.e., losses suffered as a proximate result of the\noffense.\xe2\x80\x9d (ellipsis in original)).\nSecond, consistent with this reading, Sells and many lower court decisions have held or assumed that an \xe2\x80\x9cauthorized assistant\xe2\x80\x9d to the Attorney\nGeneral must be an attorney who is, or at least may be, authorized to\n44\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nconduct criminal proceedings on the government\xe2\x80\x99s behalf. As noted, Sells\nconcluded that Civil Division attorneys qualify as \xe2\x80\x9cauthorized assistant[s]\nof the Attorney General\xe2\x80\x9d because the Attorney General may assign them\nto \xe2\x80\x9cconduct a criminal grand jury investigation\xe2\x80\x9d or other criminal matters.\nSells, 463 U.S. at 428 (citing 28 U.S.C. \xc2\xa7\xc2\xa7 515(a), 518(b)). The Attorney\nGeneral\xe2\x80\x99s authority to reassign attorneys in this way would be pertinent\nonly if the Court thought that an \xe2\x80\x9cauthorized assistant\xe2\x80\x9d had to be capable\nof conducting criminal matters on the government\xe2\x80\x99s behalf. Courts of\nappeals have interpreted the phrase even more strictly. The Sixth Circuit,\nfor instance, has held that \xe2\x80\x9can \xe2\x80\x98authorized assistant of the Attorney General\xe2\x80\x99 is one whose superiors have assigned him or her to work in some\nofficial capacity on the criminal proceeding.\xe2\x80\x9d United States v. Forman,\n71 F.3d 1214, 1220 (6th Cir. 1995) (emphasis omitted). Other courts of\nappeals have reached similar conclusions. See Sells, 463 U.S. at 429 n.12\n(citing courts of appeals that had \xe2\x80\x9cheld or assumed that\xe2\x80\x9d even a Criminal\nDivision attorney could qualify as an \xe2\x80\x9c\xe2\x80\x98authorized assistant of the Attorney General\xe2\x80\x99\xe2\x80\x9d only if she had actually been \xe2\x80\x9cauthorized to conduct grand\njury proceedings\xe2\x80\x9d); United States v. Fort, 472 F.3d 1106, 1111 (9th Cir.\n2007) (\xe2\x80\x9cRule 1(b)(1) defines restrictively the term \xe2\x80\x98attorney for the government\xe2\x80\x99 to mean (as relevant here) a federal prosecutor.\xe2\x80\x9d); United States\nv. Balistrieri, 779 F.2d 1191, 1207 (7th Cir. 1985) (holding that attorneys\nemployed by the Department\xe2\x80\x99s Criminal Division were \xe2\x80\x9cauthorized assistants of the Attorney General\xe2\x80\x9d and thus \xe2\x80\x9cattorneys for the government\xe2\x80\x9d\nbecause they \xe2\x80\x9cwere assigned to assist the United States Attorney for the\nEastern District of Wisconsin in investigating and prosecuting\xe2\x80\x9d a criminal\ncase). There is some apparent tension between the conclusion in Sells that\nany attorney who could be authorized to conduct criminal proceedings\nqualifies as an \xe2\x80\x9cattorney for the government,\xe2\x80\x9d see 463 U.S. at 428, and the\nconclusions of other courts that an actual authorization is required, see,\ne.g., Forman, 71 F.3d at 1220. But we need not attempt to resolve this\ntension here, because at a minimum, all courts agree that an attorney who\nis incapable of being authorized to conduct criminal proceedings on the\ngovernment\xe2\x80\x99s behalf is not an \xe2\x80\x9cauthorized assistant\xe2\x80\x9d for purposes of the\nFederal Rules.\nThird, numerous provisions of the Federal Rules make clear that an\n\xe2\x80\x9cattorney for the government,\xe2\x80\x9d including an authorized assistant to the\nAttorney General, refers to an attorney capable of representing the gov45\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nernment in criminal proceedings\xe2\x80\x94a meaning that makes sense given the\nRules\xe2\x80\x99 purpose of establishing the \xe2\x80\x9cprocedure\xe2\x80\x9d governing \xe2\x80\x9call criminal\nproceedings in the United States [courts].\xe2\x80\x9d Fed. R. Crim. P. 1(a)(1); see\nRobinson v. Shell Oil Co., 519 U.S. 337, 345 (1997) (resolving the meaning of a statutory term by considering \xe2\x80\x9c[t]he broader context provided by\nother sections of the statute\xe2\x80\x9d). More than 50 provisions of the Rules use\nthe term \xe2\x80\x9cattorney for the government,\xe2\x80\x9d and all are consistent with this\nunderstanding. For example, Rule 11(c) provides that \xe2\x80\x9c[a]n attorney for\nthe government and the defendant\xe2\x80\x99s attorney, or the defendant when\nproceeding pro se, may discuss and reach a plea agreement.\xe2\x80\x9d Fed. R.\nCrim. P. 11(c)(1). Rule 12.1 provides that \xe2\x80\x9c[a]n attorney for the government may request in writing that the defendant notify an attorney for the\ngovernment of any intended alibi defense,\xe2\x80\x9d Fed. R. Crim. P. 12.1(a)(1),\nand that, following such a request, \xe2\x80\x9cthe defendant must serve written\nnotice on an attorney for the government of any intended alibi defense,\xe2\x80\x9d\nFed. R. Crim. P. 12.1(a)(2). Rule 14 provides that \xe2\x80\x9c[b]efore ruling on a\ndefendant\xe2\x80\x99s motion to sever [his trial from a codefendant\xe2\x80\x99s], the court\nmay order an attorney for the government to deliver to the court for in\ncamera inspection any defendant\xe2\x80\x99s statement that the government intends\nto use as evidence.\xe2\x80\x9d Fed. R. Crim. P. 14(b). And Rule 26.2 provides that\n[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\nthe defendant\xe2\x80\x99s attorney to produce . . . any statement of the witness\nthat is in their possession and that relates to the subject matter of the\nwitness\xe2\x80\x99s testimony.\nFed. R. Crim. P. 26.2(a). A person who lacks authority to appear in a\ncriminal matter on behalf of the government could not perform these or\nmany other functions assigned to \xe2\x80\x9cattorney[s] for the government\xe2\x80\x9d by the\nFederal Rules.\nOIG attorneys cannot qualify as \xe2\x80\x9cauthorized assistant[s],\xe2\x80\x9d or any other\ntype of \xe2\x80\x9cattorney for the government,\xe2\x80\x9d under this standard. As an initial\nmatter, nothing in the IG Act authorizes OIG attorneys to conduct criminal proceedings. See 5 U.S.C. app. \xc2\xa7\xc2\xa7 4(a), 6(a), 8E(b) (listing OIG\xe2\x80\x99s\nduties and authorities). Ordinarily, 28 U.S.C. \xc2\xa7 515 and related statutes\npermit the Attorney General to delegate to any \xe2\x80\x9cofficer of the Department\n46\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nof Justice,\xe2\x80\x9d or to any \xe2\x80\x9cattorney specially appointed by the Attorney General,\xe2\x80\x9d the authority to conduct criminal proceedings on the government\xe2\x80\x99s\nbehalf. 28 U.S.C. \xc2\xa7 515(a); see also id. \xc2\xa7\xc2\xa7 518(b), 543(a). But section 9(a)\nof the IG Act provides that the Attorney General may transfer \xe2\x80\x9cfunctions,\npowers, [and] duties\xe2\x80\x9d to OIG only if those functions are \xe2\x80\x9cproperly related\nto the functions of [OIG],\xe2\x80\x9d transferring them would \xe2\x80\x9cfurther the purposes\nof th[e] Act,\xe2\x80\x9d and the functions do not constitute \xe2\x80\x9cprogram operating\nresponsibilities.\xe2\x80\x9d 5 U.S.C. app. \xc2\xa7 9(a), (a)(2); see also Authority to Conduct Regulatory Investigations, 13 Op. O.L.C. at 61 (stating that the IG\nAct prohibits inspectors general from \xe2\x80\x9cconduct[ing] investigations constituting an integral part of the programs involved\xe2\x80\x9d (internal quotation marks\nomitted)). The duty to conduct grand jury or other criminal proceedings\non behalf of the United States is unrelated to OIG\xe2\x80\x99s statutory functions of\ninvestigation, auditing, and oversight. See 5 U.S.C. app. \xc2\xa7 4(a). Transferring criminal litigating responsibilities to OIG would undermine its independence\xe2\x80\x94preservation of which is one of the principal concerns of the\nAct\xe2\x80\x94by making its attorneys \xe2\x80\x9cresponsible official[s]\xe2\x80\x9d who \xe2\x80\x9cset and\nimplement [Department] policy\xe2\x80\x9d at the same time as they oversee and\ncritique it. Authority to Conduct Regulatory Investigations, 13 Op. O.L.C.\nat 61. And the conduct of criminal litigation is one of the Department\xe2\x80\x99s\ncentral program operating responsibilities. See 28 U.S.C. \xc2\xa7\xc2\xa7 515(a), 516,\n519. The plain language of section 9(a) therefore bars the Attorney General from assigning this responsibility to OIG.\nThe IG Act\xe2\x80\x99s legislative history further supports this reading of section\n9(a). When Congress initially enacted the IG Act in 1978, the House\nReport explained that \xe2\x80\x9cInspector[s] General would not conduct prosecutions or decide whether prosecutions should or should not be conducted.\xe2\x80\x9d\nH.R. Rep. No. 95-584, at 13 (1977). And when Congress extended the IG\nAct to the Department in 1988, the House Report responded to concerns\nthat OIG\xe2\x80\x99s creation would interfere with the Department\xe2\x80\x99s law enforcement functions: \xe2\x80\x9c[P]rosecution of suspected violations of Federal law and\nthe conduct of litigation are parts of the basic mission or program functions of the Department of Justice,\xe2\x80\x9d the Report explained, \xe2\x80\x9c[and] the [IG]\n[A]ct does not authorize inspectors general to engage in program functions.\xe2\x80\x9d H.R. Rep. No. 100-771, at 9. \xe2\x80\x9c[I]n fact,\xe2\x80\x9d the Report continued,\n\xe2\x80\x9c[section 9(a)] specifically prohibits the assignment of such responsibilities to an inspector general.\xe2\x80\x9d Id. at 9 & n.48. The Conference Report\n47\n\n\x0c39 Op. O.L.C. 12 (2015)\n\naccompanying the 1988 amendments likewise indicated that OIG personnel would not be permitted to engage in prosecutorial functions, noting\nthat \xe2\x80\x9c[t]he conferees do not intend that the IG should render judgments on\nthe exercise of prosecutorial or other litigative discretion in a particular\ncase or controversy.\xe2\x80\x9d H.R. Rep. No. 100-1020, at 25 (Conf. Rep.).\nBecause section 9(a) prohibits the Attorney General from transferring\nto OIG the authority to conduct criminal proceedings, the Attorney\nGeneral may not assign OIG that authority pursuant to 28 U.S.C. \xc2\xa7 515\nor similar general delegation statutes. As we have noted, different statutes that regulate the same subject matter must be read in pari materia\nand given full effect to the extent possible. See Mancari, 417 U.S. at 551.\nIf a general delegation statute such as 28 U.S.C. \xc2\xa7 515 were construed to\npermit assignments to OIG that section 9(a) prohibits, then section 9(a)\nwould be effectively inapplicable to the Department and many agencies\nsubject to the IG Act, because numerous statutes grant the heads of\nagencies equally broad or broader authority to delegate their statutory\nfunctions to subordinate officers. See, e.g., 28 U.S.C. \xc2\xa7 510 (providing\nthat the Attorney General may authorize \xe2\x80\x9cany other officer\xe2\x80\x9d of the Department to perform \xe2\x80\x9cany function of the Attorney General\xe2\x80\x9d (emphases\nadded)); 6 U.S.C. \xc2\xa7 112(b)(1) (granting similar authority to the Secretary\nof Homeland Security); 20 U.S.C. \xc2\xa7 3472 (Secretary of Education); 31\nU.S.C. \xc2\xa7 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,\nparticularly in light of the legislative history expressing Congress\xe2\x80\x99s belief\nthat 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.\nRep. No. 100-771, at 9; H.R. Rep. No. 95-584, at 13. We therefore think\nthat, given the absence of any indication of congressional intent to the\ncontrary, section 9(a)\xe2\x80\x94a specific provision limiting the transfer of functions to inspectors general\xe2\x80\x94is best construed as an exception to general\ndelegation provisions, like 28 U.S.C. \xc2\xa7 515(a), that broadly authorize the\nassignment of the Department\xe2\x80\x99s functions to any subordinate officer or\nattorney. See infra p. 74 (explaining that if \xe2\x80\x9c\xe2\x80\x98a general permission or\nprohibition is contradicted by a specific prohibition or permission,\xe2\x80\x99\xe2\x80\x9d then\n\xe2\x80\x9c\xe2\x80\x98the specific provision is construed as an exception to the general one,\xe2\x80\x99\xe2\x80\x9d\nabsent strong \xe2\x80\x9c\xe2\x80\x98textual indications that point in the other direction\xe2\x80\x99\xe2\x80\x9d\n\n48\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\n(quoting RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct.\n2065, 2071\xe2\x80\x9372 (2012))).\nAs a result, while the analysis in our OPR memorandum might inform\nthe question whether OIG investigations and reviews qualify as \xe2\x80\x9cdut[ies]\xe2\x80\x9d\njustifying disclosure of grand jury materials under exception (A)(i), OIG\nattorneys are unlike OPR attorneys in at least one critical respect. Like\n\xe2\x80\x9cvirtually every attorney in the Department of Justice,\xe2\x80\x9d OPR attorneys\nmay in principle be delegated the Attorney General\xe2\x80\x99s authority to conduct\ncriminal proceedings for the Department. Sells, 463 U.S. at 426; see id. at\n428; OPR Memorandum at 8 (noting that OPR attorneys are \xe2\x80\x9cdelegee[s]\nof the Attorney General\xe2\x80\x9d). But OIG attorneys, as we have discussed, are\nbarred from being assigned this authority under the IG Act. Consequently,\nalthough OIG personnel may seek to use grand jury materials in a manner\nthat parallels the use discussed in our OPR Memorandum, they do not fall\nwithin the category of persons\xe2\x80\x94attorneys for the government\xe2\x80\x94who may\nobtain disclosure under exception (A)(i). 14\n\nOIG contends that multiple district court decisions have determined that OIG attorneys qualify for disclosure under exception (A)(i), and questions whether this Office may\nrender a legal opinion disagreeing with those decisions. See OIG 2014 Memorandum at\n15 & att. The decisions OIG cites are one-page memorandum orders, issued by a single\ndistrict judge, that authorized disclosure to OIG attorneys under exception (A)(i). The\nrelevant parts of the orders state, in their entirety, that because a particular OIG investigation of \xe2\x80\x9calleged misconduct before the grand jury\xe2\x80\x9d was \xe2\x80\x9csupervisory in nature with\nrespect to ethical conduct of Department employees,\xe2\x80\x9d \xe2\x80\x9cdisclosure of grand jury materials\nto the OIG constitutes disclosure to \xe2\x80\x98an attorney for the government for use in the performance of such attorney\xe2\x80\x99s duty\xe2\x80\x99\xe2\x80\x9d under exception (A)(i). In re Matters Occurring Before\nthe 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\nid. (Nov. 15, 1999) (\xe2\x80\x9cBecause in taking such actions, these Department personnel would\nbe engaged in a supervisory function, disclosure of grand jury materials to them constitutes disclosure to \xe2\x80\x98an attorney for the government for use in the performance of such\nattorney\xe2\x80\x99s duty.\xe2\x80\x99\xe2\x80\x9d). Neither these orders, nor the underlying Department filings that\nsought disclosure, discussed or analyzed the meaning of the terms \xe2\x80\x9cattorney for the\ngovernment\xe2\x80\x9d or \xe2\x80\x9cauthorized assistant.\xe2\x80\x9d As the Supreme Court has explained, a \xe2\x80\x9c\xe2\x80\x98decision\nof a federal district court judge is not binding precedent in either a different judicial\ndistrict, the same judicial district, or even upon the same judge in a different case.\xe2\x80\x99\xe2\x80\x9d\nCamreta v. Greene, 131 S. Ct. 2020, 2033 n.7 (2011) (quoting 18 J. Moore et al., Moore\xe2\x80\x99s\nFederal Practice \xc2\xa7 134.02[1][d] (3d ed. 2011)). Nor is a district court decision binding on\nthe Executive Branch in activities unrelated to the case in which the court\xe2\x80\x99s decision was\nrendered. See In re Exec. Office of the President, 215 F.3d 20, 24\xe2\x80\x9325 (D.C. Cir. 2000)\n14\n\n49\n\n\x0c39 Op. O.L.C. 12 (2015)\n\n2.\nBecause 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:\nDisclosure of a grand-jury matter\xe2\x80\x94other than the grand jury\xe2\x80\x99s deliberations or any grand juror\xe2\x80\x99s vote\xe2\x80\x94may be made to . . . any government personnel\xe2\x80\x94including those of a state, state subdivision, Indian\ntribe, or foreign government\xe2\x80\x94that an attorney for the government\nconsiders necessary to assist in performing that attorney\xe2\x80\x99s duty to\nenforce federal criminal law.\nFed. R. Crim. P. 6(e)(3)(A)(ii). Like disclosure under exception (A)(i),\ndisclosure under this exception may be made without prior judicial approval. However, unlike in the case of disclosures under exception (A)(i),\nthe Rules provide that an attorney for the government must \xe2\x80\x9cpromptly\nprovide the court that impaneled the grand jury with the names of all\npersons to whom a disclosure has been made\xe2\x80\x9d under exception (A)(ii),\nand \xe2\x80\x9ccertify that the attorney has advised those persons of their obligation\nof secrecy under this rule.\xe2\x80\x9d Fed. R. Crim. P. 6(e)(3)(B). And a person to\nwhom information is disclosed under this exception \xe2\x80\x9cmay use that information only to assist an attorney for the government in performing that\nattorney\xe2\x80\x99s duty to enforce federal criminal law.\xe2\x80\x9d Id.\n\n(per curiam). Consistent with this rule, the Office has previously disagreed with district\ncourt decisions after independently analyzing the questions presented and reaching\ncontrary conclusions, including where the court espoused a view previously advanced by\nthe Department. See, e.g., Whether the Wire Act Applies to Non-Sports Gambling, 35 Op.\nO.L.C. 134, 138 (2011) (disagreeing with the decisions of courts that had adopted a\nposition 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.\nO.L.C. 33, 52 (2001) (disagreeing with the \xe2\x80\x9cunexplained decision\xe2\x80\x9d of a district court that\nappeared to interpret the Antideficiency Act in a manner \xe2\x80\x9cinconsistent with the Antideficiency Act\xe2\x80\x99s legislative history and evolution and with the rest of the (limited) caselaw\xe2\x80\x9d);\nAuthority of the President to Remove the Staff Director of the Civil Rights Commission\nand Appoint an Acting Staff Director, 25 Op. O.L.C. 103, 105 (2001) (disagreeing with a\ndistrict court decision subsequently vacated as moot). For the reasons offered above, we\nrespectfully disagree with the district court\xe2\x80\x99s conclusion that OIG attorneys may qualify\nfor disclosure under exception (A)(i) solely because they perform supervisory functions.\n\n50\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nOIG employees clearly qualify as \xe2\x80\x9cgovernment personnel\xe2\x80\x9d who may\nreceive disclosures under this exception. The language of that phrase is\nbroad\xe2\x80\x94particularly when considered in light of the Rule\xe2\x80\x99s explanation\nthat it extends to personnel of a \xe2\x80\x9cstate, state subdivision, Indian tribe, or\nforeign government\xe2\x80\x9d\xe2\x80\x94and comfortably encompasses OIG employees.\nFed. R. Crim. P. 6(e)(3)(A)(ii). In addition, we have previously observed\nthat the use of the permissive phrase \xe2\x80\x9cconsiders necessary\xe2\x80\x9d in exception\n(A)(ii) suggests that \xe2\x80\x9cCongress intended federal prosecutors to have broad\nleeway in deciding what government personnel should have access to\ngrand jury materials for purposes of facilitating enforcement functions.\xe2\x80\x9d\nDisclosure of Grand Jury Matters to the President and Other Officials, 17\nOp. O.L.C. 59, 62 (1993) (\xe2\x80\x9cDisclosure to the President\xe2\x80\x9d). 15 Consistent\nwith this broad understanding of the term, we have advised that exception\n(A)(ii) permits disclosures to law enforcement officers, members of the\nintelligence community, and senior Administration officials, among\nothers. See Rule 6(e) Intelligence Community, 21 Op. O.L.C. at 161;\nDisclosure to the President, 17 Op. O.L.C. at 61. See generally Sells,\n463 U.S. at 436 (explaining that exception (A)(ii) was prompted by the\nneed to make disclosures to individuals such as \xe2\x80\x9caccountants\xe2\x80\x9d and \xe2\x80\x9chandwriting experts\xe2\x80\x9d); Fed R. Crim. P. 6 advisory committee\xe2\x80\x99s note (1977\namendments) (\xe2\x80\x9cThe phrase \xe2\x80\x98other government personnel\xe2\x80\x99 includes, but is\nnot limited to, employees of administrative agencies and government\ndepartments.\xe2\x80\x9d). OIG employees are likewise \xe2\x80\x9cgovernment personnel\xe2\x80\x9d who\nmay receive disclosures under exception (A)(ii).\nIn addition, a wide variety of Department attorneys qualify as \xe2\x80\x9cattorney[s] for the government\xe2\x80\x9d who may authorize disclosures under this\nexception. As we have discussed, that term includes the Attorney General,\nUnited States Attorneys, their \xe2\x80\x9cauthorized assistant[s],\xe2\x80\x9d and \xe2\x80\x9cany other\n15 Consistent with our prior opinions, we presume that Congress intended \xe2\x80\x9cnecessary\xe2\x80\x9d\nin this context to mean useful or conducive, rather than strictly required. See Disclosure\nto the President, 17 Op. O.L.C. at 61 (stating that exception (A)(ii) permits disclosure\n\xe2\x80\x9cfor purposes of obtaining . . . assistance\xe2\x80\x9d); Rule 6(e) Intelligence Community, 21 Op.\nO.L.C. at 161 (similar); cf., e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413,\n415 (1819) (construing the word \xe2\x80\x9cnecessary\xe2\x80\x9d in the Necessary and Proper Clause to mean\n\xe2\x80\x9cconvenient,\xe2\x80\x9d \xe2\x80\x9cuseful,\xe2\x80\x9d or \xe2\x80\x9cconducive\xe2\x80\x9d); Cellular Telecomms. & Internet Ass\xe2\x80\x99n v. FCC,\n330 F.3d 502, 504 (D.C. Cir. 2003) (deferring to agency\xe2\x80\x99s interpretation of \xe2\x80\x9cnecessary\xe2\x80\x9d in\ntelecommunications statute as referring to \xe2\x80\x9ca strong connection\xe2\x80\x9d between means and\nends).\n\n51\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nattorney authorized by law to conduct proceedings under these rules as a\nprosecutor\xe2\x80\x9d\xe2\x80\x94and thus extends to any Department attorney who is (and\nperhaps any Department attorney who may be) authorized to conduct\ncriminal proceedings on behalf of the federal government. Fed. R. Crim.\nP. 1(b)(1); see supra pp. 43\xe2\x80\x9346.\nThe scope of permissible disclosure to OIG officials under exception\n(A)(ii) thus turns on the circumstances in which a Department attorney\xe2\x80\x94\nincluding a member of Department leadership\xe2\x80\x94may reasonably \xe2\x80\x9cconsider[]\xe2\x80\x9d an OIG official \xe2\x80\x9cnecessary to assist in performing that attorney\xe2\x80\x99s\nduty to enforce federal criminal law.\xe2\x80\x9d Fed. R. Crim. P. 6(e)(3)(A)(ii).\nThis Office has previously noted several relatively straightforward ways\nin which this language limits the permissible scope of disclosures. To\nbegin 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 \xe2\x80\x9cfederal criminal law.\xe2\x80\x9d\nId. (emphasis added). Thus, an attorney may not authorize disclosures\nunder exception (A)(ii) to assist in the performance of her civil or administrative duties, or to senior White House policymakers for purposes of\n\xe2\x80\x9cgeneral policymaking.\xe2\x80\x9d Disclosure to the President, 17 Op. O.L.C. at\n61\xe2\x80\x9362, 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\nwhom a Department attorney \xe2\x80\x9cconsiders necessary to assist in performing\nthat attorney\xe2\x80\x99s duty,\xe2\x80\x9d Fed. R. Crim. P. 6(e)(3)(A)(ii) (emphasis added),\nan attorney may not make disclosures to assist in the performance of\nduties she herself does not hold. See Rule 6(e) Intelligence Community,\n21 Op. O.L.C. at 171. In addition, we have advised that the same phrase\nrequires that any disclosure be made \xe2\x80\x9cin accordance with an actual determination made by an attorney.\xe2\x80\x9d Memorandum for Philip B. Heymann,\nAssistant Attorney General, Criminal Division, and William P. Tyson,\nActing Director, Executive Office for United States Attorneys, from John\nM. Harmon, Assistant Attorney General, Office of Legal Counsel, Re:\nComputerized Preservation and Use of Grand Jury Material at 4 (May 2,\n1980). Hence, while an attorney has \xe2\x80\x9cbroad leeway\xe2\x80\x9d in judging what disclosures are proper, Disclosure to the President, 17 Op. O.L.C. at 62\n(citing S. Rep. No. 95-354, at 8 (1977)), she must always exercise her\nindependent judgment before authorizing the disclosure of grand jury\ninformation to a particular recipient. Thus, for example, we concluded\n52\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nthat an attorney could not place grand jury materials on a computerized\ndatabase that law enforcement officers could use for purposes of which\nthe attorney was unaware. See Memorandum for Roger B. Clegg, Acting\nAssistant Attorney General, Office of Legal Policy, and John Mintz,\nAssistant Director and Legal Counsel, FBI, from Robert B. Shanks,\nDeputy Assistant Attorney General, Office of Legal Counsel, Re: Authority of FBI Agents to Exchange Grand Jury Material Pursuant to Rule\n6(e)(3)(A)(ii) of the Federal Rules of Criminal Procedure (Feb. 14, 1984)\n(\xe2\x80\x9cShanks Memorandum\xe2\x80\x9d).\nWithin these limitations, we believe exception (A)(ii) permits Department attorneys to authorize the disclosure of grand jury information to\nOIG both to assist with individual law enforcement actions and, where the\ndisclosures are authorized by members of the Department leadership, to\nassist in the direction and supervision of the Department\xe2\x80\x99s law enforcement programs and operations. First, because an attorney\xe2\x80\x99s \xe2\x80\x9cduty to\nenforce federal criminal law\xe2\x80\x9d plainly includes his duty to prosecute criminal offenses, exception (A)(ii) permits Department attorneys to authorize\ndisclosure 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\norder to enable prosecutors to make disclosures to investigators who could\ndevelop the basis for and aid in prosecutions. See Sells, 463 U.S. at 436\n(stating that exception (A)(ii) was enacted \xe2\x80\x9cbecause Justice Department\nattorneys found that they often need active assistance from . . . investigators from the [FBI], IRS, and other law enforcement agencies\xe2\x80\x9d); Fed. R.\nCrim. P. 6 advisory committee\xe2\x80\x99s note (1977 enactment) (stating that\n\xe2\x80\x9c[o]ften the prosecutors need the assistance of the agents in evaluating\nevidence\xe2\x80\x9d or conducting \xe2\x80\x9cfurther investigation\xe2\x80\x9d). As we have discussed,\nOIG agents have a number of investigative duties, and are required to\n\xe2\x80\x9creport expeditiously to the Attorney General whenever the Inspector\nGeneral has reasonable grounds to believe there has been a violation of\nFederal criminal law.\xe2\x80\x9d 5 U.S.C. app. \xc2\xa7 4(d); see Investigative Officers, 14\nOp. O.L.C. at 109. Hence, a Department attorney may authorize disclosure of information to OIG in connection with an OIG investigation that\nthe attorney concludes will be likely to aid in an ongoing or potential\nprosecution in which the attorney is involved.\n\n53\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nSecond, we think that exception (A)(ii) permits a Department leadership official to authorize disclosure of grand jury information to OIG in\nconnection with OIG investigations or reviews that the official believes\ncould assist her in carrying out her duty to conduct programmatic or\npolicy supervision of the Department\xe2\x80\x99s criminal law enforcement activities. As we discussed in analyzing the scope of permissible disclosure\nunder Title III, programmatic and policy supervision can affect the prevention, investigation, or prosecution of criminal conduct as directly as\nindividual trial decisions, see Van de Kamp, 555 U.S. at 346, and constitute a central means by which the Attorney General and her assistants\ndirect and control the Department\xe2\x80\x99s law enforcement and prosecutorial\nfunctions. See supra pp. 29\xe2\x80\x9330. Such activities are thus part of Department leadership\xe2\x80\x99s \xe2\x80\x9cduty to enforce federal criminal law\xe2\x80\x9d under the plain\nlanguage of that phrase. Further, it would be reasonable for a member of\nDepartment leadership to \xe2\x80\x9cconsider[]\xe2\x80\x9d many OIG reviews \xe2\x80\x9cnecessary to\nassist\xe2\x80\x9d her in performing this duty. Fed. R. Crim. P. 6(e)(3)(A)(ii). As we\nalso noted in the Title III context, Congress established OIG to \xe2\x80\x9ckeep[]\nthe head of the [Department] . . . informed about problems\xe2\x80\x9d in the Department and to recommend \xe2\x80\x9ccorrective action,\xe2\x80\x9d 5 U.S.C. app. \xc2\xa7 2(3), and\nOIG\xe2\x80\x99s reviews have historically provided the Department\xe2\x80\x99s leadership\nwith \xe2\x80\x9ccritical advice, information, and insights in connection with the\nexercise of their supervisory responsibilities over the Department\xe2\x80\x99s criminal law enforcement programs, policies, and practices,\xe2\x80\x9d Yates Letter at 3.\nIt would therefore generally be reasonable for a member of Department\nleadership to conclude that an OIG investigation or review that concerns,\nor is designed to develop recommendations about, the manner in which\nthe Department enforces federal criminal law is \xe2\x80\x9cnecessary to assist\xe2\x80\x9d in\nthe disclosing official\xe2\x80\x99s supervision of that function on a programmatic or\npolicy basis.\nWe acknowledge that certain language in Sells might be read to suggest a narrower scope of appropriate disclosures. In particular, various\nstatements in the opinion could be read to suggest that an attorney\xe2\x80\x99s\n\xe2\x80\x9cduty\xe2\x80\x9d 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\n(\xe2\x80\x9cWe hold that (A)(i) disclosure is limited to use by those attorneys who\nconduct the criminal matters to which the materials pertain.\xe2\x80\x9d (emphasis\nadded)); id. at 429 n.11 (stating that \xe2\x80\x9cevery attorney (including a super54\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nvisor) who is working on a prosecution may have access to grand jury\nmaterials, at least while he is conducting criminal matters\xe2\x80\x9d (emphasis\nadded)); id. at 438 (noting that the \xe2\x80\x9cprimary objection\xe2\x80\x9d to a proposal to\nallow disclosures to other governmental personnel was a concern that\nthey would use grand jury information \xe2\x80\x9cto pursue civil investigations or\nunrelated criminal matters\xe2\x80\x9d (emphasis added)). And although Sells\nconcerned exception (A)(i)\xe2\x80\x94which authorizes disclosures for use in\nperforming an attorney\xe2\x80\x99s \xe2\x80\x9cduty\xe2\x80\x9d\xe2\x80\x94rather than exception (A)(ii)\xe2\x80\x94which\nauthorizes disclosure in connection with an attorney\xe2\x80\x99s \xe2\x80\x9cduty to enforce\nfederal criminal law\xe2\x80\x9d\xe2\x80\x94the Sells Court explained that the \xe2\x80\x9ccriminal-use\nlimitation\xe2\x80\x9d in exception (A)(ii) \xe2\x80\x9cmerely ma[de] explicit what [Congress]\nbelieved to be already implicit in the existing (A)(i) language.\xe2\x80\x9d Id.\nat 436. This suggests that the Court would have viewed its analysis of the\nlimitations on exception (A)(i) as applicable to exception (A)(ii) as well.\nThus, it might be argued that programmatic and policy supervision does\nnot fall within an attorney\xe2\x80\x99s \xe2\x80\x9cduty to enforce federal criminal law\xe2\x80\x9d because it differs from the duties discussed in Sells in two respects: first,\nit involves supervision of law enforcement agents in addition to prosecutors; and second, it concerns criminal matters unrelated to the grand\njury investigation in which the information to be disclosed was developed. It might also be argued that disclosure to OIG is different from the\ndisclosures contemplated in Sells because OIG will frequently use grand\njury information to investigate past conduct in completed law enforcement operations, rather than to assist in ongoing prosecutions.\nIn our view, however, notwithstanding these distinctions, Sells and subsequent opinions support reading exception (A)(ii) to permit disclosures\nto OIG in connection with Department leadership\xe2\x80\x99s duties of programmatic and policy supervision. With respect to the first arguable distinction\xe2\x80\x94\nbetween supervision of law enforcement officers and supervision of\nprosecutors\xe2\x80\x94Sells expressly recognized that a prosecutor\xe2\x80\x99s authority to\n\xe2\x80\x9ccommand[]\xe2\x80\x9d law enforcement officers is a critical means by which she\ncarries out her prosecutorial duties and renders assistance to the grand\njury. Sells, 463 U.S. at 430 (stating that \xe2\x80\x9ca modern grand jury would be\nmuch less effective without the assistance of the prosecutor\xe2\x80\x99s office and\nthe investigative resources it commands\xe2\x80\x9d); id. at 430 n.13 (\xe2\x80\x9cNot only\nwould the prosecutor ordinarily draw up and supervise the execution of\nsubpoenas, but also he commands the investigative forces that might be\n55\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nneeded to find out what the grand jury wants to know.\xe2\x80\x9d). Moreover, as\nSells also recognized (and as we noted above), Congress added exception\n(A)(ii) in part to ensure that prosecutors could obtain the assistance of law\nenforcement officers in developing the basis for and conducting prosecutions. See id. at 436. Sells therefore fully supports the proposition that the\nduty to supervise prosecutions includes a duty to supervise law enforcement officers in conduct that assists with prosecutions.\nWe likewise believe that the second arguably distinctive characteristic\nof programmatic and policy supervision\xe2\x80\x94that it concerns criminal matters unrelated to the grand jury investigation in which the materials being\nsought were originally developed\xe2\x80\x94is consistent with Sells. Lower courts,\ntreatises, and this Office have repeatedly interpreted Sells to permit disclosure in connection with any \xe2\x80\x9ccriminal matters to which [grand jury]\nmaterials pertain,\xe2\x80\x9d id. at 427, and not merely those matters in which the\ninformation was developed. See, e.g., Impounded, 277 F.3d 407, 413 (3d\nCir. 2002) (holding that the disclosure of grand jury materials to a federal\nprosecutor in another district was permissible under exception (A)(i));\n1 Sara Sun Beale et al., Grand Jury Law and Practice \xc2\xa7 5:8, at 5-58 (2d\ned. 2014) (\xe2\x80\x9cBeale\xe2\x80\x9d) (stating that an attorney may make a disclosure under\nexception (A)(i) \xe2\x80\x9cin connection with a separate prosecution\xe2\x80\x9d); Shanks\nMemorandum at 2 (concluding that exception (A)(ii) authorizes disclosure\nto FBI agents assisting in \xe2\x80\x9ca specific criminal investigation\xe2\x80\x9d unrelated to\nthe initial grand jury investigation); cf. Fed. R. Crim. P. 6(e)(3)(C) (permitting the automatic disclosure of grand jury materials to \xe2\x80\x9canother federal grand jury\xe2\x80\x9d). This Office has also previously concluded that the disclosure authorization in exception (A)(ii) extends to general supervision of\nlaw enforcement activities as well as to specific prosecutions: In our Rule\n6(e) Intelligence Community opinion, for example, we advised that the\nAttorney General may make disclosures to assist \xe2\x80\x9ca broad criminal law\nenforcement program for which [she] is responsible,\xe2\x80\x9d 21 Op. O.L.C. at\n171; and in our Disclosure to the President opinion, we cited legislative\nhistory supporting the view that \xe2\x80\x9cCongress intended federal prosecutors to\nhave broad leeway in deciding what government personnel should have\naccess to grand jury materials for purposes of facilitating enforcement\nfunctions,\xe2\x80\x9d 17 Op. O.L.C. at 62. See also 1 Beale \xc2\xa7 5:8, at 5-58 (stating\nthat attorneys may disclose materials \xe2\x80\x9cin connection with the evaluation\nor planning of broad prosecutorial policies\xe2\x80\x9d).\n56\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nConsistent with these authorities, we do not think the language in Sells\nreferring to specific \xe2\x80\x9cprosecutions,\xe2\x80\x9d e.g., 463 U.S. at 429 n.11, should be\nread to preclude disclosures that an attorney believes could aid the general\nsupervision of the Department\xe2\x80\x99s law enforcement programs and activities.\nTo begin with, the Court in Sells addressed the permissibility of disclosure only in connection with civil litigation, see id. at 420; it did not\ndiscuss, 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\npermitting disclosure for broad supervisory purposes. The Court expressly\nnoted that exception (A)(ii) gives prosecutors a \xe2\x80\x9cfree hand concerning use\nof grand jury materials\xe2\x80\x9d in connection with criminal matters. Id. at 441\xe2\x80\x93\n42; see also Disclosure to the President, 17 Op. O.L.C. at 62 (noting the\n\xe2\x80\x9cbroad leeway\xe2\x80\x9d possessed by attorneys under exception (A)(ii)). Further,\npermitting disclosure for broad supervisory purposes would not raise the\npolicy concerns that led the Sells Court to deem disclosure for civil purposes unlawful: because such disclosure would not be used in connection\nwith investigating the subjects of or witnesses in the underlying grand\njury investigations, it would not discourage witnesses from testifying,\ncreate incentives for prosecutors to misuse the grand jury, or subvert\nlimits on civil discovery. See Sells, 463 U.S. at 432\xe2\x80\x9334; OPR Memorandum at 4\xe2\x80\x936 (similarly distinguishing Sells on this basis). In addition,\nprohibiting such disclosure would have the same kinds of disruptive\neffects we identified in connection with Title III, by preventing Department leadership from obtaining (or disclosing) Rule 6(e) information for\nthe purpose of conducting policy or programmatic supervision of grand\njury proceedings or other law enforcement programs that used grand jury\ninformation. For all these reasons, we doubt that if the Supreme Court had\nsquarely addressed the question, it would have concluded that exception\n(A)(ii) does not permit the Attorney General and her assistants to obtain\nor disclose grand jury information in order to set policies and develop\nguidance for law enforcement purposes.\nFinally, while it is true that OIG officials would frequently use grand\njury information to evaluate completed law enforcement operations\nrather than to assist in ongoing operations or prosecutions, \xe2\x80\x9csupervisors\n. . . must be able to evaluate [past] conduct once a course of action has\nbeen set\xe2\x80\x9d to \xe2\x80\x9cperform properly their oversight role.\xe2\x80\x9d OPR Memorandum\n57\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nat 7. As we explained in our OPR Memorandum, \xe2\x80\x9cpost mortem review\xe2\x80\x9d\nof the conduct of a prosecution is necessary to evaluate and, if appropriate, take administrative action with respect to that conduct. Id. at 8. OIG\ninvestigations and reviews of the past conduct of Department criminal\nlaw enforcement programs likewise help Department leadership evaluate\nthat conduct and take appropriate corrective action if necessary. We\ntherefore believe that, notwithstanding the apparently narrow language in\nSells, Department leadership\xe2\x80\x99s \xe2\x80\x9cduty to enforce federal criminal law\xe2\x80\x9d\nincludes its duties to supervise Department law enforcement efforts on a\nprogrammatic and policy basis, and that it would generally be reasonable\nfor Department leadership to \xe2\x80\x9cconsider[]\xe2\x80\x9d it \xe2\x80\x9cnecessary to assist\xe2\x80\x9d it in\nperforming these duties to authorize the disclosure of grand jury information to OIG in connection with investigations or reviews that concern,\nor are designed to develop recommendations about, the manner in which\nthe Department carries out its criminal law enforcement functions. Fed.\nR. Crim. P. 6(e)(3)(A)(ii).\nAs in the Title III context, however, we do not think that exception\n(A)(ii) would permit Department attorneys to disclose grand jury material\nto OIG in relation to all OIG audits, investigations, and reviews. In particular, we doubt that a Department leadership official may authorize\ndisclosures in connection with investigations that are only tangentially\nrelated to programmatic and policy supervision of law enforcement activities, such as routine financial audits of components that happen to engage\nin law enforcement functions. Similarly, especially in light of Sells, we do\nnot believe a Department attorney may authorize disclosure of grand jury\ninformation to OIG in connection with OIG investigations or reviews that\nprimarily relate to civil enforcement or recovery efforts (such as investigations designed to assist the Department in recovering funds through a\nFalse Claims Act suit), rather than criminal prosecutions.\nC.\nThe third and final statutory prohibition on disclosure we consider is\nsection 626 of FCRA. Congress enacted FCRA to ensure \xe2\x80\x9cfair and accurate credit reporting,\xe2\x80\x9d which it deemed \xe2\x80\x9cessential to the continued functioning of the banking system.\xe2\x80\x9d 15 U.S.C. \xc2\xa7 1681(a)(1). FCRA comprehensively regulates the \xe2\x80\x9cconfidentiality, accuracy, relevancy, and proper\nutilization\xe2\x80\x9d of information held by consumer credit reporting agencies. Id.\n58\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\n\xc2\xa7 1681(b). Among other things, it restricts the circumstances in which\nconsumer reporting agencies may disclose consumer credit reports, id.\n\xc2\xa7 1681b; specifies what information may be contained in those reports, id.\n\xc2\xa7 1681c; and imposes civil, administrative, and sometimes criminal liability for failure to comply with its requirements, id. \xc2\xa7\xc2\xa7 1681n\xe2\x80\x931681s.\nIn 1996, Congress amended FCRA to add a new basis for disclosure of\nconsumer credit information. See Intelligence Authorization Act for Fiscal\nYear 1996, Pub. L. No. 104-93, sec. 601(a), \xc2\xa7 624, 109 Stat. 961, 974\n(codified at 15 U.S.C. \xc2\xa7 1681u). The new provision, now FCRA section\n626, authorizes the FBI to present a consumer credit reporting agency\nwith a written request, signed by the Director of the FBI or his designee,\ncertifying that the FBI seeks certain information \xe2\x80\x9cfor the conduct of an\nauthorized investigation to protect against international terrorism or\nclandestine intelligence activities.\xe2\x80\x9d 15 U.S.C. \xc2\xa7 1681u(a). Upon receipt of\nsuch a National Security Letter (\xe2\x80\x9cNSL\xe2\x80\x9d), a credit agency must disclose to\nthe FBI the \xe2\x80\x9cnames and addresses of all financial institutions . . . at which\na consumer maintains or has maintained an account,\xe2\x80\x9d id., and \xe2\x80\x9cidentifying\ninformation respecting a consumer, limited to name, address, former\naddresses, places of employment, or former places of employment,\xe2\x80\x9d id.\n\xc2\xa7 1681u(b). Section 626(f ) bars further dissemination of this information\nexcept in limited circumstances. It provides:\nThe 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\nnecessary for the approval or conduct of a foreign counterintelligence investigation, or, where the information concerns a person\nsubject to the Uniform Code of Military Justice, to appropriate investigative authorities within the military department concerned as\nmay be necessary for the conduct of a joint foreign counterintelligence investigation.\nId. \xc2\xa7 1681u(f ).* FCRA makes any violation of this section by a federal\nagency or officer grounds for civil damages or disciplinary action. Id.\n\xc2\xa7 1681u(i)\xe2\x80\x93( j).\n\n* Editor\xe2\x80\x99s Note: Section 626(f ) was redesignated as section 626(g) in 2015. See USA\nFREEDOM Act of 2015, Pub. L. No. 114-23, \xc2\xa7 503(c)(1), 129 Stat. 268, 290.\n\n59\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nOIG argues that under the terms of section 626(f ), it may obtain unrestricted access to consumer information that the FBI has obtained under\nsection 626. In OIG\xe2\x80\x99s view, it is exempt from the limitations on disclosure contained in section 626(f ) because it is part of the same agency as\nthe FBI. See OIG 2014 Memorandum at 12\xe2\x80\x9313; OIG FCRA Memorandum at 3. We consider this argument below. In addition, although OIG\ndoes not make the argument, we consider whether OIG may obtain section 626 information under the first exception set forth in section 626(f ),\nwhich permits the FBI to make disclosures \xe2\x80\x9cto other Federal agencies as\nmay be necessary for the approval or conduct of a foreign counterintelligence investigation.\xe2\x80\x9d 15 U.S.C. \xc2\xa7 1681u(f ). As we will explain, we\nconclude that although OIG is subject to section 626(f )\xe2\x80\x99s prohibition on\ndisclosure, it may nonetheless obtain covered information under that\nprovision\xe2\x80\x99s first exception in certain circumstances.\n1.\nOIG argues that it is permitted to obtain section 626 information from\nthe FBI in connection with any of its audits, investigations, or reviews. It\ncontends that, while section 626(f ) bars the FBI from disclosing information obtained pursuant to an NSL to \xe2\x80\x9cother Federal agencies,\xe2\x80\x9d except\n\xe2\x80\x9cas may be necessary for the approval or conduct of a foreign counterintelligence investigation,\xe2\x80\x9d this bar does not apply to OIG because both OIG\nand the FBI are components of the Department. See OIG FCRA Memorandum at 3. OIG argues that this reading of section 626(f ) is supported\nby the text of that provision\xe2\x80\x99s first exception, by implication from a statute enacted subsequent to section 626, and by the general purposes of\nOIG reviews. See OIG 2014 Memorandum at 12\xe2\x80\x9314; OIG FCRA Memorandum at 2\xe2\x80\x934.\nOIG\xe2\x80\x99s interpretation is difficult to square with the plain language of the\nstatute. Section 626(f ) states that the FBI \xe2\x80\x9cmay not disseminate information obtained pursuant to this section outside of the Federal Bureau of\nInvestigation\xe2\x80\x9d except in two specific circumstances. On its face, this\nprovision unambiguously bars the FBI from disclosing information outside of the FBI, unless an exception applies. OIG is outside of the FBI,\nand so falls within this prohibition on disclosure. OIG\xe2\x80\x99s argument\xe2\x80\x94that it\nis exempt from the prohibition because it is a Department component\xe2\x80\x94\n60\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nwould require reading \xe2\x80\x9cFederal Bureau of Investigation\xe2\x80\x9d to mean \xe2\x80\x9cDepartment of Justice.\xe2\x80\x9d But these two entities are not equivalent, and Congress chose to refer to the former rather than the latter in section 626(f ).\nOIG disputes this straightforward reading of section 626(f ) by pointing\nto the provision\xe2\x80\x99s first exception, which permits the FBI to disclose section 626 information to \xe2\x80\x9cother Federal agencies.\xe2\x80\x9d OIG reasons that because other components of the Department are part of the same agency as\nthe FBI, and \xe2\x80\x9cnot an \xe2\x80\x98other Federal agency\xe2\x80\x99\xe2\x80\x9d relative to the FBI, they\ncannot qualify for disclosure under this exception. OIG FCRA Memorandum at 2. As a consequence, this argument continues, reading section\n626(f ) as its plain text indicates would lead to the unlikely result that the\nFBI could never disclose section 626 information to Department officials\noutside the FBI\xe2\x80\x94a result that, as OIG explains, would be inconsistent\nwith the Department\xe2\x80\x99s longstanding practice of making section 626 information available to the National Security Division (\xe2\x80\x9cNSD\xe2\x80\x9d) for purposes of overseeing the FBI\xe2\x80\x99s operations. See id.\nWe agree that it is highly unlikely that Congress would have barred the\nFBI from disclosing section 626 information within the Department,\nparticularly while permitting such disclosure to agencies outside the\nDepartment. However, we disagree that the statute\xe2\x80\x99s reference to \xe2\x80\x9cother\nFederal agencies\xe2\x80\x9d compels such a result. Although the term \xe2\x80\x9cagency\xe2\x80\x9d is\nsometimes used to refer to the Department of Justice as a whole, it is also\nused to refer to components within the Department. Compare 28 U.S.C.\n\xc2\xa7 527 (distinguishing between \xe2\x80\x9cthe Department of Justice\xe2\x80\x9d and \xe2\x80\x9cother\nFederal agencies\xe2\x80\x9d), and 5 U.S.C. \xc2\xa7 5721(1)(A) (\xe2\x80\x9c[f ]or the purpose of this\nsubchapter . . . \xe2\x80\x98agency\xe2\x80\x99 means . . . an Executive agency\xe2\x80\x9d), with 28 U.S.C.\n\xc2\xa7 509 (vesting \xe2\x80\x9call functions of agencies and employees of the Department of Justice\xe2\x80\x9d in the Attorney General), and 5 U.S.C. \xc2\xa7 551 (\xe2\x80\x9cFor the\npurpose of this subchapter . . . \xe2\x80\x98agency\xe2\x80\x99 means each authority of the Government of the United States, whether or not it is within or subject to\nreview by another agency.\xe2\x80\x9d). In our view, the term \xe2\x80\x9cagency\xe2\x80\x9d is best read\nin the latter sense in section 626(f ). Notably, the statute does not simply\nstate that the FBI \xe2\x80\x9cmay not disseminate [section 626 information], except\nto other Federal agencies\xe2\x80\x9d for certain purposes; it says the FBI \xe2\x80\x9cmay not\ndisseminate [section 626 information] outside of the Federal Bureau of\nInvestigation, except to other Federal agencies\xe2\x80\x9d for those purposes. 15\nU.S.C. \xc2\xa7 1681u(f ) (emphasis added). The express reference to \xe2\x80\x9coutside of\n61\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nthe [FBI]\xe2\x80\x9d strongly suggests that \xe2\x80\x9cother Federal agencies\xe2\x80\x9d refers to any\nfederal entity other than the Federal Bureau of Investigation, including\nother components of the Department.\nThis conclusion is reinforced by the significant role that other Department components play in \xe2\x80\x9cthe approval or conduct of [the FBI\xe2\x80\x99s]\nforeign counterintelligence investigation[s].\xe2\x80\x9d Id. For decades, the Attorney General has been authorized to \xe2\x80\x9csupervis[e]\xe2\x80\x9d and \xe2\x80\x9cestablish\xe2\x80\x9d \xe2\x80\x9cregulations\xe2\x80\x9d concerning the FBI\xe2\x80\x99s counterintelligence activities. Exec. Order\nNo. 12333, \xc2\xa7 1.14, 46 Fed. Reg. 59,941, 59,949 (Dec. 4, 1981); see The\nAttorney General\xe2\x80\x99s Guidelines for Domestic FBI Operations at 5 (Sept.\n29, 2008) (\xe2\x80\x9cAG Guidelines\xe2\x80\x9d), http://www.justice.gov/sites/default/files/\nag/legacy/2008/10/03/guidelines.pdf (setting guidelines for the conduct\nof domestic FBI operations, including \xe2\x80\x9ccounterintelligence activities\xe2\x80\x9d);\nMemorandum for the Director, FBI, et al., from the Attorney General,\nRe: Intelligence Sharing Procedures for Foreign Intelligence and Foreign Counterintelligence Investigations Conducted by the FBI (Mar. 6,\n2002); 28 C.F.R. \xc2\xa7 0.72 (assigning counterintelligence oversight functions to NSD). By permitting disclosure for the \xe2\x80\x9capproval\xe2\x80\x9d of counterintelligence investigations, Congress presumably intended to permit the\nFBI to make disclosures consistent with this longstanding grant of supervisory authority. Indeed, a prior version of the bill would have made the\nfirst exception applicable exclusively to disclosures within the Department of Justice. See Comprehensive Terrorism Prevention Act of 1995,\nS. 735, 104th Cong. \xc2\xa7 502(a) (1995) (\xe2\x80\x9cThe [FBI] may not disseminate\ninformation obtained pursuant to this section outside of the [FBI], except\n. . . to the Department of Justice, as may be necessary for the approval or\nconduct of a foreign counterintelligence operation.\xe2\x80\x9d). It is unlikely that,\nin later broadening the scope of the exception to allow disclosures to\n\xe2\x80\x9cother Federal agencies,\xe2\x80\x9d Congress intended to exclude disclosures to the\nagency that was previously the exception\xe2\x80\x99s sole beneficiary.\nOIG also argues that its view that section 626(f ) permits disclosure to\nOIG finds support in a statutory provision Congress enacted after section\n626: section 119 of the USA PATRIOT Improvement and Reauthorization\nAct of 2005, Pub. L. No. 109-177, 120 Stat. 192, 219 (\xe2\x80\x9cPatriot Reauthorization Act\xe2\x80\x9d). As OIG points out, section 119 of the Patriot Reauthorization Act directed OIG to \xe2\x80\x9cperform an audit of the effectiveness and use,\nincluding any improper or illegal use, of national security letters issued by\n62\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nthe Department of Justice,\xe2\x80\x9d including NSLs issued pursuant to section\n626. Id. \xc2\xa7 119(a), (g)(4). OIG argues that \xe2\x80\x9c[f ]ulfilling the mandates of the\nPatriot Reauthorization Act . . . clearly required [it] to have access to the\n\xe2\x80\x98raw data\xe2\x80\x99 the Department obtained through [NSLs], including Section\n[626] credit report information.\xe2\x80\x9d OIG 2014 Memorandum at 13. And\nbecause that Act \xe2\x80\x9ccontained no provision granting the OIG access to\nSection [626] information,\xe2\x80\x9d OIG reasons that \xe2\x80\x9cin 2005 Congress believed\nthe OIG already had access to FCRA information in order to audit such\ndissemination.\xe2\x80\x9d Id. (emphasis added). But this provision suggests at most\nthat the Congress that enacted the Patriot Reauthorization Act believed\nOIG would have access to section 626 information as necessary for OIG\nto evaluate the legality and effectiveness of the Department\xe2\x80\x99s use of\nNSLs. And for reasons we explain below, we believe OIG is eligible to\nreceive section 626 information for that purpose under section 626(f )\xe2\x80\x99s\nfirst exception. See infra Part II.C.2. The Patriot Reauthorization Act thus\ndoes not provide a basis for reading section 626(f ), contrary to its plain\ntext, to grant OIG unfettered access to such information.\nFinally, OIG contends that the limits on dissemination contained in\nsection 626 were intended to protect consumer privacy, and that it\nwould undermine rather than further that purpose to prohibit OIG from\nobtaining the information necessary to determine whether the FBI is\nabiding by section 626\xe2\x80\x99s requirements. See OIG 2014 Memorandum at\n12\xe2\x80\x9313; OIG FCRA Memorandum at 3. We agree that, in enacting section 626, Congress sought to build \xe2\x80\x9csafeguards . . . into the legislation\xe2\x80\x9d\nthat would \xe2\x80\x9cminimiz[e]\xe2\x80\x9d the \xe2\x80\x9cthreat to privacy\xe2\x80\x9d posed by the FBI\xe2\x80\x99s\nability to use NSLs. H.R. Rep. No. 104-427, at 36 (1995); see also 15\nU.S.C. \xc2\xa7 1681(a)(4) (finding \xe2\x80\x9ca need to insure that consumer reporting\nagencies exercise their grave responsibilities with . . . a respect for the\nconsumer\xe2\x80\x99s right to privacy\xe2\x80\x9d). But it is entirely consistent with Congress\xe2\x80\x99s purpose of protecting consumer privacy to prevent broad disclosure of consumer information even within the Department of Justice.\nNor would a restriction on disclosure outside the FBI necessarily preclude all oversight of the use of section 626 authority, insofar as the\nFBI\xe2\x80\x99s internal audit department or Office of Professional Responsibility\ncould conduct reviews of the use of that authority. Further, as we explain below, we believe OIG may obtain section 626 information in\norder to monitor the FBI\xe2\x80\x99s compliance with FCRA\xe2\x80\x99s disclosure re63\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nstrictions pursuant to section 626(f )\xe2\x80\x99s first exception. The statute\xe2\x80\x99s purpose thus does not require OIG to have blanket access to section 626\ninformation.\n2.\nWe now consider whether OIG is eligible to receive disclosures under\nsection 626(f )\xe2\x80\x99s first exception, which authorizes the FBI to disclose\ninformation obtained pursuant to an NSL \xe2\x80\x9cto other Federal agencies as\nmay be necessary for the approval or conduct of a foreign counterintelligence investigation.\xe2\x80\x9d 15 U.S.C. \xc2\xa7 1681u(f ). As we have discussed, components of the Department outside the FBI, including OIG, are \xe2\x80\x9cother\nFederal agencies\xe2\x80\x9d within the meaning of this provision. See supra pp. 61\xe2\x80\x93\n62. Consequently, this exception permits OIG to obtain access to section\n626 information \xe2\x80\x9cas may be necessary for the approval or conduct of a\nforeign counterintelligence investigation.\xe2\x80\x9d 15 U.S.C. \xc2\xa7 1681u(f ).\nIn our view, this language authorizes disclosure in two broad circumstances. First, and most straightforwardly, it authorizes disclosures as\nnecessary to facilitate approval of a particular foreign counterintelligence\ninvestigation, or to obtain assistance in conducting such an investigation. 16 For example, the first exception would allow the FBI to disclose\ninformation to Department attorneys in order to enable those attorneys to\nfile an application for electronic surveillance pursuant to Title III or the\nForeign Intelligence Surveillance Act of 1978, 50 U.S.C. \xc2\xa7 1801 et seq.,\nor to advise the FBI on the legality of a method the FBI proposes to use in\nan investigation. In addition, the first exception would allow the FBI to\ndisclose information to Department supervisors to enable them to monitor\na particular foreign counterintelligence operation, to ensure that it was\nbeing conducted lawfully and in conformance with Department guidelines.\nSecond, we believe that section 626(f )\xe2\x80\x99s first exception permits disclosure of information as necessary for the programmatic and policy supervision of foreign counterintelligence investigations generally\xe2\x80\x94that is, to\nensure that investigations are (or were) approved or conducted in accord16 As in the case of Rule 6(e)(3)(A)(ii), we presume that Congress used the word \xe2\x80\x9cnecessary\xe2\x80\x9d to mean useful or conducive rather than required. See supra note 15.\n\n64\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nance with applicable statutes, regulations, and guidelines; to identify\nsystemic problems in the approval or conduct of investigations; and to\nupdate guidelines and procedures in response to identified deficiencies. It\nis true that section 626(f ) authorizes disclosures only as necessary for the\napproval or conduct of \xe2\x80\x9ca foreign counterintelligence investigation.\xe2\x80\x9d\n(Emphases added.) But Congress has instructed that \xe2\x80\x9cunless the context\nindicates otherwise . . . words importing the singular include and apply to\nseveral persons, parties, or things.\xe2\x80\x9d 1 U.S.C. \xc2\xa7 1; see also Caraco Pharm.\nLabs., Ltd. v. Novo Nordisk A/S, 132 S. Ct. 1670, 1681 (2012) (explaining\nthat the meaning of the word \xe2\x80\x9ca\xe2\x80\x9d and its variants \xe2\x80\x9cturns on its context\xe2\x80\x9d).\nIn this case, we have not found any indication in the statute or its legislative history\xe2\x80\x94apart from the use of the phrase \xe2\x80\x9ca[n] . . . investigation\xe2\x80\x9d\nitself\xe2\x80\x94that Congress intended to permit disclosures in connection with\nonly one investigation at a time. Nor, of particular relevance here, can we\nfind any indication that Congress intended to prevent Department leadership officials from obtaining information protected by section 626(f ) for\nuse in supervising the FBI\xe2\x80\x99s conduct of foreign counterintelligence investigations. In a manner similar to that discussed in the Title III and Rule\n6(e) contexts, Department leadership would be severely constrained in its\nability to supervise the FBI\xe2\x80\x99s conduct of such investigations on a programmatic or policy basis, and to supervise the FBI\xe2\x80\x99s use of NSLs issued\npursuant to section 626 on a similar basis, if it could not obtain section\n626 information for that purpose. Indeed, under guidance issued by Department leadership, the FBI routinely provides section 626 information to\nother Department components to assist in such supervision. See, e.g., AG\nGuidelines at 10\xe2\x80\x9311 (authorizing disclosure of section 626 information to\nNSD for supervisory purposes). And, as noted above, Congress likewise\nassumed in the Patriot Reauthorization Act that OIG would be able to\nobtain the \xe2\x80\x9craw data\xe2\x80\x9d needed to conduct a review of the FBI\xe2\x80\x99s use of\nNSLs. See supra p. 63. In light of these considerations, we believe that\nsection 626(f )\xe2\x80\x99s first exception permits the FBI to disclose section 626\ninformation not only to obtain assistance in \xe2\x80\x9cthe approval or conduct\xe2\x80\x9d of a\nparticular foreign counterintelligence investigation, but also to aid in\nsupervision of \xe2\x80\x9cthe approval or conduct\xe2\x80\x9d of foreign counterintelligence\ninvestigations generally.\nOIG may in principle obtain section 626 information under either of\nthese rationales. It appears unlikely that the FBI would need to disclose\n65\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nsection 626 information to OIG to obtain assistance in the approval or\nconduct of a particular foreign counterintelligence investigation, since\nOIG involvement in such investigations would generally entail exercising\n\xe2\x80\x9cprogram operating responsibilities\xe2\x80\x9d that the Attorney General may not\nassign to OIG. 5 U.S.C. app. \xc2\xa7 9(a); see also Authority to Conduct Regulatory Investigations, 13 Op. O.L.C. at 61\xe2\x80\x9362. However, there might be\nrare circumstances in which a foreign counterintelligence investigation\nwas intertwined with an investigation of internal misconduct. In such\ncircumstances, it is conceivable that OIG could obtain section 626 information to facilitate the conduct of that investigation.\nIn other circumstances, OIG could obtain information under the broader\nsupervisory rationale. As we have noted elsewhere, OIG plays a central\nrole in helping Department leadership supervise the Department\xe2\x80\x99s law\nenforcement activities through both reviews of misconduct and programmatic reviews intended to help improve law enforcement operations in the\nfuture. See supra pp. 32\xe2\x80\x9335, 54. In the context of section 626, it is reasonable to conclude that OIG investigations and reviews that could inform\ndecisions by Department leadership concerning supervision of foreign\ncounterintelligence investigations\xe2\x80\x94such as OIG\xe2\x80\x99s congressionally mandated review of the FBI\xe2\x80\x99s use of NSLs\xe2\x80\x94are \xe2\x80\x9cnecessary for the approval\nor conduct of \xe2\x80\x9d those investigations within the meaning of section 626(f ).\nAn OIG review of foreign counterintelligence investigations could, for\nexample, lead to changes in the process for authorizing such investigations, or help leadership officials ensure that investigations are carried out\nlawfully. Indeed, OIG\xe2\x80\x99s review of the FBI\xe2\x80\x99s use of NSLs illustrates how\nsuch a process might work. After that review uncovered serious problems\nwith the FBI\xe2\x80\x99s use of NSLs, the Department implemented a number of\nmeasures aimed at ensuring greater supervision and control of the FBI\xe2\x80\x99s\nactivities. See Fact Sheet: Department of Justice Corrective Actions on\nthe FBI\xe2\x80\x99s Use of National Security Letters (Mar. 20, 2007), http://www.\njustice.gov/archive/opa/pr/2007/March/07_nsd_168.html (\xe2\x80\x9cCorrective Actions on the FBI\xe2\x80\x99s Use of NSLs\xe2\x80\x9d). These measures included retrospective\nand continuing audits of the FBI\xe2\x80\x99s NSL usage designed to identify potential legal violations, as well as measures intended to allow the Attorney\nGeneral to promptly address needed changes in policy, training, and\noversight. Id. Because investigations and reviews of this kind concern, or\nare designed to develop recommendations about, leadership decisions\n66\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nregarding the approval or conduct of foreign counterintelligence investigations, they are in our view \xe2\x80\x9cnecessary to the approval or conduct\xe2\x80\x9d of\nsuch investigations as that phrase is used in section 626(f ).\nThis reading of section 626(f ) is further supported by the FBI\xe2\x80\x99s practice\nof providing information obtained through NSLs to NSD to facilitate\nNSD\xe2\x80\x99s supervision of the FBI\xe2\x80\x99s compliance with applicable laws and\nguidelines in matters relating to national security and foreign intelligence.\nSee AG Guidelines at 10\xe2\x80\x9311. OIG correctly notes that NSD was given\nresponsibility to oversee the FBI\xe2\x80\x99s activities following OIG\xe2\x80\x99s critical\nreview of the FBI\xe2\x80\x99s use of NSLs, and that NSD\xe2\x80\x99s reviews are patterned\nafter OIG reviews. See NSD E-mail; see also OIG FCRA Memorandum;\nCorrective Actions on the FBI\xe2\x80\x99s Use of NSLs. It would be incongruous to\nconclude that the FBI may disseminate section 626 information to NSD\nbecause its reviews are \xe2\x80\x9cnecessary for the approval or conduct of a foreign counterintelligence investigation,\xe2\x80\x9d but that the FBI is barred from\nproviding the same information to OIG in connection with reviews that\nshare a similar purpose and methodology, and likewise assist the Department\xe2\x80\x99s leadership in its supervisory functions. For reasons similar to those\nset forth in our discussion of Title III, see supra p. 34, we do not believe\nthat OIG\xe2\x80\x99s relative independence from the Department\xe2\x80\x99s leadership makes\nits reviews less valuable to leadership, or less \xe2\x80\x9cnecessary for the approval\nor conduct\xe2\x80\x9d of foreign counterintelligence investigations, than the comparable reviews performed by NSD.\nAccordingly, we conclude that the FBI may disseminate section 626\ninformation to OIG in connection with investigations and reviews that\nconcern, or are designed to develop recommendations about, leadership\ndecisions regarding the approval or conduct of foreign counterintelligence\ninvestigations. This conclusion, however, is subject to the same limitation\nwe have explained in other contexts: OIG audits, investigations, and\nreviews that have only an attenuated connection to Department leadership\xe2\x80\x99s supervisory responsibilities relating to foreign counterintelligence\ninvestigations, such as routine financial audits of the FBI entities that\ncarry out such investigations, would likely not qualify for disclosure\nunder section 626. See supra pp. 35\xe2\x80\x9336, 58 (discussing similar limits in\nthe context of Title III and Rule 6(e) disclosures).\n\n67\n\n\x0c39 Op. O.L.C. 12 (2015)\n\n* * * * *\nIn sum, Title III, Rule 6(e), and FCRA permit the disclosure of covered\ninformation in connection with many of OIG\xe2\x80\x99s investigations and reviews.\nTitle III permits a Department investigative or law enforcement officer to\ndisclose to OIG the contents of intercepted communications to the extent\nthat disclosure could aid either the disclosing official or OIG in the performance of their respective duties related to law enforcement\xe2\x80\x94including\nduties related to Department leadership\xe2\x80\x99s programmatic or policy supervision of the Department\xe2\x80\x99s law enforcement activities. Rule 6(e), similarly,\npermits the disclosure of grand jury materials to OIG if an attorney for the\ngovernment 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\nthe FBI to disclose to OIG consumer information it obtained pursuant to\nsection 626, if such a disclosure could assist in the approval or conduct of\nforeign counterintelligence investigations, including in the supervision of\nsuch investigations on a programmatic or policy basis. 17\nThese statutes do not, however, authorize Department officials to disclose protected information to OIG in connection with all of OIG\xe2\x80\x99s activities. As we have noted, Title III and Rule 6(e) do not permit disclosures\nthat have either an attenuated or no connection with the conduct of the\nDepartment\xe2\x80\x99s criminal law enforcement programs and operations, and\nsection 626 of FCRA does not permit disclosures that have either an\nattenuated or no connection with the approval or conduct of foreign\ncounterintelligence investigations. Thus, for example, Title III, Rule 6(e),\nand section 626 do not permit OIG to obtain covered information to assist\nin investigations of the Department\xe2\x80\x99s civil activities that are only tangentially related to criminal law enforcement or foreign counterintelligence\nefforts, or to conduct routine financial audits of Department components.\nEven when these statutes permit disclosures to OIG, moreover, they im-\n\n17 You have not asked, and this opinion does not address, what further disclosures OIG\nmay make of sensitive information it receives under Title III, Rule 6(e), or FCRA. We\nstress, however, that nothing in this opinion is intended to suggest that OIG may disclose\nprotected materials in a public report. Information received by OIG remains subject to the\nstatutory restrictions on disclosure, and OIG may further disclose that information only to\nthe extent permitted by those restrictions and any other applicable laws.\n\n68\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\npose certain procedural preconditions on those disclosures. Disclosures\nunder Title III require an assessment of whether a particular OIG investigation is appropriate to the proper performance of an official duty related\nto law enforcement. Disclosures under Rule 6(e) require an independent\njudgment, made by an attorney for the government, that OIG assistance is\nnecessary to perform that attorney\xe2\x80\x99s duty to enforce criminal law, and\nfurther require compliance with certain additional procedural obligations.\nAnd disclosures under section 626 of FCRA require an assessment of\nwhether an OIG investigation is \xe2\x80\x9cnecessary for the approval or conduct\xe2\x80\x9d\nof foreign counterintelligence investigations.\nIf section 6(a)(1) of the IG Act displaced the limitations on disclosure\nin these statutes, it would\xe2\x80\x94unlike these statutory exceptions\xe2\x80\x94permit\nunconstrained disclosure of all protected information to OIG. Thus, OIG\ncould receive information protected by Title III, Rule 6(e), and section\n626 in connection with its investigations of the Department\xe2\x80\x99s civil activities, its routine financial or administrative audits, and any other of its\nauthorized activities. Moreover, information already available to OIG\nunder the terms of Title III, Rule 6(e), and section 626 would be available\nwithout a prior assessment of whether that information was related to the\nDepartment\xe2\x80\x99s law enforcement functions or the FBI\xe2\x80\x99s conduct of foreign\ncounterintelligence investigations, and, in the case of Rule 6(e) information, without a prior determination by an attorney for the government\nthat OIG assistance was necessary to assist in performing the attorney\xe2\x80\x99s\nduty to enforce federal criminal law. Because section 6(a)(1) would thus\nprovide OIG with access to protected information in more circumstances\nand on broader terms than are provided for in Title III, Rule 6(e), and\nsection 626 themselves, we must consider whether section 6(a)(1) overrides the limits imposed by those statutes.\nIII.\nIn 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\nthe 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\non disclosing sensitive information contained in Title III, Rule 6(e), and\nsection 626. We then analyze the text, structure, and history of the IG\n69\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nAct to determine whether it contains such a clear statement. Finding that\nit does not, we conclude that the Department remains bound by Title III,\nRule 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\nthose statutes outside the circumstances permitted by the statutes themselves.\nA.\nBoth the Supreme Court and this Office have repeatedly confronted\napparent conflicts between statutes that address the same subject matter.\nTwo lines of authority are particularly relevant here. In the first, the Court\nand this Office have considered whether statutory provisions protecting\nhighly sensitive information can be overridden by competing statutory\nrights of access. In the second, which is sometimes intertwined with the\nfirst, the Court and this Office have considered the circumstances in\nwhich a general statute can be construed to override a more specific\nstatutory provision. In addressing these subjects, the Court and this\nOffice have identified two salient interpretive principles that will guide\nour analysis.\nFirst, in a range of contexts\xe2\x80\x94including contexts involving information\nprotected by Rule 6(e) and Title III\xe2\x80\x94the Supreme Court and this Office\nhave declined to infer that Congress intended to override statutory limits\non the disclosure of highly sensitive information about which Congress\nhas expressed a special concern for privacy, absent a clear statement of\ncongressional intent to that effect. In Illinois v. Abbott & Associates, Inc.,\n460 U.S. 557 (1983), for example, the Court held that an antitrust statute\nauthorizing state attorneys general to obtain, \xe2\x80\x9cto the extent permitted by\nlaw, any investigative files or other materials\xe2\x80\x9d relevant to an antitrust suit,\n15 U.S.C. \xc2\xa7 15f(a) (1976), did not supersede the limits of Rule 6(e). 460\nU.S. at 565. The Court relied primarily on the statute\xe2\x80\x99s use of the phrase\n\xe2\x80\x9cto the extent permitted by law,\xe2\x80\x9d which it read to exclude from the statute\xe2\x80\x99s scope any disclosures not authorized by Rule 6(e). Id. at 566\xe2\x80\x9369.\nBut in response to the argument that such a reading would frustrate the\nstatute\xe2\x80\x99s purpose by \xe2\x80\x9cseverely limit[ing] the amount of additional disclosure to state attorneys general\xe2\x80\x9d it made possible, id. at 572, the Court\nfurther explained that because the rule of grand jury secrecy was \xe2\x80\x9cso\nimportant, and so deeply-rooted in our traditions,\xe2\x80\x9d it would \xe2\x80\x9cnot infer that\n70\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nCongress has exercised [the] power [to modify it] without affirmatively\nexpressing its intent to do so,\xe2\x80\x9d id. at 572\xe2\x80\x9373.\nThe Court and this Office have since applied this clear statement rule to\nRule 6(e) information on multiple occasions. In Sells, discussed above,\nthe Court concluded that Department attorneys could not disclose grand\njury information for use in civil cases in part because \xe2\x80\x9cthe long-established policy\xe2\x80\x9d and \xe2\x80\x9cimportan[ce]\xe2\x80\x9d of grand jury secrecy meant that,\n\xe2\x80\x9c[i]n the absence of a clear indication in a statute or Rule,\xe2\x80\x9d the Court\n\xe2\x80\x9cmust always be reluctant to conclude that a breach of [grand jury] secrecy has been authorized.\xe2\x80\x9d 463 U.S. at 424\xe2\x80\x9325 (internal quotation marks\nomitted); see id. at 435 (refusing to adopt a \xe2\x80\x9cplausible\xe2\x80\x9d but broad construction of exception (A)(i) in light of the policy of grand jury secrecy\nand the Rule\xe2\x80\x99s legislative history). And in our Rule 6(e) Intelligence\nCommunity opinion, this Office concluded that section 104(a) of the\nNational Security Act, which granted the Director of Central Intelligence\naccess to \xe2\x80\x9call intelligence related to the national security,\xe2\x80\x9d did not \xe2\x80\x9coverride grand jury secrecy restrictions\xe2\x80\x9d because it did not \xe2\x80\x9cclearly manifest\nan intent to reach grand jury information.\xe2\x80\x9d 21 Op. O.L.C. at 165 (emphasis added); see also Memorandum for Richard K. Willard, Assistant\nAttorney General, Civil Division, from Samuel A. Alito, Jr., Deputy\nAssistant Attorney General, Office of Legal Counsel, Re: Authority of the\nFBI to Transfer Restricted Records to the National Archives and Records\nAdministration at 2 (Feb. 27, 1986) (\xe2\x80\x9cFBI NARA Memorandum\xe2\x80\x9d).\nThis Office has concluded that \xe2\x80\x9ca similar approach is appropriate\xe2\x80\x9d to\nthe protection of Title III information. Title III Intelligence Community,\n24 Op. O.L.C. at 273. In our Title III Intelligence Community opinion, we\nconsidered whether the same provision of the National Security Act addressed in our Rule 6(e) Intelligence Community opinion, section 104(a),\nsuperseded Title III\xe2\x80\x99s limits on the disclosure of the contents of electronic\ncommunications. We reasoned that even though \xe2\x80\x9cTitle III does not have\nthe historical roots of the grand jury secrecy rule,\xe2\x80\x9d we should be similarly\nreluctant to conclude that Congress had abrogated Title III\xe2\x80\x99s limits. Id.\nThis was so, we explained, because of the strong \xe2\x80\x9cprivacy interests underlying\xe2\x80\x9d and reflected in Title III, and the \xe2\x80\x9cconstitutional concerns\xe2\x80\x9d that\nmight be raised by permitting government entities to broadly disclose the\ncontents of intercepted communications between private parties. Id. at\n272\xe2\x80\x9373 (citing In re Application of Nat\xe2\x80\x99l Broad. Co., 735 F.2d 51 (2d Cir.\n71\n\n\x0c39 Op. O.L.C. 12 (2015)\n\n1984)); see also Scott, 436 U.S. at 132 (noting that Berger and Katz \xe2\x80\x9cproscribed\xe2\x80\x9d the \xe2\x80\x9cindiscriminate use of wire surveillance\xe2\x80\x9d (internal quotation\nmarks omitted)). We also observed that \xe2\x80\x9c[n]othing in the language of\nsection 104(a) . . . refers to Title III information,\xe2\x80\x9d and that \xe2\x80\x9cthere is nothing in the legislative history of that section that suggests that Congress\nconsidered Title III information\xe2\x80\x9d in enacting that statute. Title III Intelligence Community, 24 Op. O.L.C. at 272. We therefore advised that \xe2\x80\x9cin\nthe absence of at least some evidence that Congress intended to create a\nnew exception to Title III\xe2\x80\x99s limits on disclosure,\xe2\x80\x9d section 104(a) of the\nNational Security Act should not be read to \xe2\x80\x9cpermit otherwise prohibited\ndisclosure of Title III information to members of the intelligence community.\xe2\x80\x9d Id. at 273. Likewise, facing an apparent conflict between Title III\nand a statute authorizing the FBI to transfer records to the National Archives and Records Administration, we explained that because Title III,\nlike Rule 6(e), \xe2\x80\x9cenact[s] [a] strict rule[] of secrecy,\xe2\x80\x9d makes violations of\nthe rule a felony, and \xe2\x80\x9cprotect[s] highly important privacy rights,\xe2\x80\x9d its\nprovisions had to \xe2\x80\x9ctake precedence\xe2\x80\x9d over the statute governing transfers\nto the National Archives, absent \xe2\x80\x9cevidence that Congress contemplated\xe2\x80\x9d\nthe transfer of Title III information to the Archives. FBI NARA Memorandum at 2.\nWe have not previously considered whether a similar clear statement\nrule should apply to information protected by section 626 of FCRA. But\nwe have applied much the same clear statement rule to other highly sensitive information, in addition to Title III and Rule 6(e) information, that\nCongress has protected from disclosure through statutes that suggest a\nspecial concern for privacy. For instance, we concluded in 1977 that \xe2\x80\x9cany\ndoubts\xe2\x80\x9d about Congress\xe2\x80\x99s intent to permit disclosure of tax return information \xe2\x80\x9cshould be resolved in favor\xe2\x80\x9d of confidentiality, in light of the\n\xe2\x80\x9crigid safeguards\xe2\x80\x9d Congress set up in the statute and the strict penalties\nthat Congress imposed for unauthorized disclosure. Transfer of Watergate\nSpecial Prosecution Task Force Records to the National Archives, 1 Op.\nO.L.C. 216, 218\xe2\x80\x9319 (1977) (\xe2\x80\x9cTransfer of Watergate Records\xe2\x80\x9d); see id. at\n219 (advising that disclosure of such records would be lawful only if there\nwere \xe2\x80\x9cexplicit legislative authorization\xe2\x80\x9d). Reaffirming this conclusion\nin 1986, we explained that the reasons for applying a clear statement rule\nto tax return information were \xe2\x80\x9csimilar\xe2\x80\x9d to those underlying the rule for\nTitle III and Rule 6(e) information: the language of all three statutory\n72\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nregimes, together with their legislative history, \xe2\x80\x9cexpress[ed] a strong\ncongressional intent to maintain very strict privacy for such information.\xe2\x80\x9d\nFBI NARA Memorandum at 1\xe2\x80\x932. Similarly, we have long concluded that\nin light of \xe2\x80\x9cthe federal government\xe2\x80\x99s longstanding commitment to confidentiality\xe2\x80\x9d of census information, and the \xe2\x80\x9cbroad confidentiality protection[s]\xe2\x80\x9d that Congress enacted for such information, we must not infer\nthat a statute authorizes its disclosure unless \xe2\x80\x9cthe evidence of congressional intention compel[s] such a conclusion.\xe2\x80\x9d Census Confidentiality and\nthe PATRIOT Act, 34 Op. O.L.C. 1, 7, 12 (2010) (\xe2\x80\x9cCensus Confidentiality\xe2\x80\x9d) (internal quotation marks omitted); see also Confidential Treatment\nof Census Records, 40 Op. Att\xe2\x80\x99y Gen. 326, 328 (1944); United States v.\nBethlehem Steel Corp., 21 F.R.D. 568, 572 (S.D.N.Y. 1958) (stating that\n\xe2\x80\x9cthe purpose to protect the privacy of [census] information . . . is so clear\nand the public policy underlying the purpose so compelling\xe2\x80\x9d that authority\nto abrogate that privacy should not be inferred \xe2\x80\x9cabsent a clear Congressional grant\xe2\x80\x9d).\nIn 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\nFCRA. All of these opinions involved highly sensitive information with\nrespect to which Congress has \xe2\x80\x9cexpressed a strong congressional intent to\nmaintain very strict privacy\xe2\x80\x9d in various ways, including through \xe2\x80\x9cstrict\xe2\x80\x9d\nor \xe2\x80\x9crigid\xe2\x80\x9d rules of secrecy applicable to government officials, FBI NARA\nMemorandum at 1\xe2\x80\x932; Transfer of Watergate Records, 1 Op. O.L.C. at\n219; penalties for unauthorized disclosure, FBI NARA Memorandum at\n2\xe2\x80\x933; Transfer of Watergate Records, 1 Op. O.L.C. at 218; and, in some\nbut not all circumstances, a \xe2\x80\x9clong-established policy\xe2\x80\x9d of confidentiality,\nSells, 463 U.S. at 424; see also Census Confidentiality, 34 Op. O.L.C. at\n12; cf. Title III Intelligence Community, 24 Op. O.L.C. at 273 (noting that\n\xe2\x80\x9cTitle III does not have the historical roots of the grand jury secrecy\nrule\xe2\x80\x9d). Further, \xe2\x80\x9cthe privacy interests at stake\xe2\x80\x9d in these opinions were \xe2\x80\x9cnot\nprimarily those of the government but of third parties, such as taxpayers\nand grand jury witnesses,\xe2\x80\x9d whose rights the federal government has \xe2\x80\x9ca\nduty to protect.\xe2\x80\x9d FBI NARA Memorandum at 3; accord Title III Intelligence Community, 24 Op. O.L.C. at 273. As discussed above, section 626,\nlike 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\n73\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nII.C; 15 U.S.C. \xc2\xa7 1681u(f ), (i)\xe2\x80\x93( j). Further, section 626 information, like\ngrand jury, Title III, tax return, and census information, is highly sensitive\ninformation about private individuals rather than the government\xe2\x80\x94\nindeed, it is information that the government may have obtained without\nthe subject\xe2\x80\x99s knowledge. See 15 U.S.C. \xc2\xa7 1681u(d) (authorizing the FBI\nto bar the provider of section 626 information, in certain circumstances,\nfrom informing others about the disclosure). We thus think there is a\nstrong argument that the federal government has a similar \xe2\x80\x9cduty to protect\n[the statutory privacy] rights\xe2\x80\x9d in section 626 unless \xe2\x80\x9cCongress\xe2\x80\x99s command\nis clear.\xe2\x80\x9d FBI NARA Memorandum at 3. See generally Sossamon v.\nTexas, 131 S. Ct. 1651, 1661 (2011) (\xe2\x80\x9c\xe2\x80\x98[C]lear statement rules ensure\nCongress does not, by broad or general language, legislate on a sensitive\ntopic inadvertently or without due deliberation.\xe2\x80\x99\xe2\x80\x9d (alteration in original)\n(quoting Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 139 (2005)\n(plurality opinion))).\nA second general principle, complementary to and often applied in conjunction with the first, also informs our analysis. Where the Court and this\nOffice have faced apparent conflicts between two competing statutes, they\nhave frequently resolved the question by applying the \xe2\x80\x9crule of relative\nspecificity.\xe2\x80\x9d This \xe2\x80\x9ccardinal axiom of statutory construction,\xe2\x80\x9d GAO Access\nto Trade Secret Information, 12 Op. O.L.C. 181, 182 (1988) (\xe2\x80\x9cGAO\nAccess\xe2\x80\x9d), holds that \xe2\x80\x9c[w]here there is no clear [congressional] intention\notherwise, a specific statute will not be controlled or nullified by a general\none, regardless of the priority of enactment,\xe2\x80\x9d Mancari, 417 U.S. at 550\xe2\x80\x93\n51. Under this rule, if \xe2\x80\x9ca general permission or prohibition is contradicted\nby a specific prohibition or permission,\xe2\x80\x9d then \xe2\x80\x9cthe specific provision is\nconstrued as an exception to the general one,\xe2\x80\x9d absent strong \xe2\x80\x9ctextual\nindications that point in the other direction.\xe2\x80\x9d RadLAX Gateway Hotel, 132\nS. Ct. at 2071\xe2\x80\x9372; see, e.g., Mancari, 417 U.S. at 535 (construing section\n12 of the Indian Reorganization Act of 1934 as an exception to the Equal\nEmployment Opportunity Act of 1972). This rule ensures that congressional commands are followed to the fullest extent possible, by giving\neffect to the more focused or particularized expression of Congress\xe2\x80\x99s will\non the particular question at hand.\nApplying the rule of relative specificity, we have often concluded that\nstatutes barring the disclosure of particular types of information by particular entities, subject to particular exceptions, take precedence over stat74\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nutes broadly entitling an entity to examine federal records. In our GAO\nAccess opinion, for instance, we determined that a statute prohibiting the\nFood and Drug Administration from disclosing trade secrets except to\ncertain specified individuals and entities took precedence over 31 U.S.C.\n\xc2\xa7 716(a), a statute providing that \xe2\x80\x9c[e]ach agency shall give the Comptroller General information [he] requires about the duties, powers, activities,\norganization, and financial transactions of the agency.\xe2\x80\x9d See 12 Op. O.L.C.\nat 182. \xe2\x80\x9cSince [the trade secrets statute] is a specific statute directly\naddressing one executive branch agency\xe2\x80\x99s 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,\xe2\x80\x9d\nwe reasoned, \xe2\x80\x9c[the trade secrets statute] controls in the absence of congressional intent to the contrary.\xe2\x80\x9d Id. at 182\xe2\x80\x9383. Applying the same reasoning, we later concluded that section 716(a) also had to give way to a\n\xe2\x80\x9cspecific provision\xe2\x80\x9d that restricted \xe2\x80\x9cwhich recipients\xe2\x80\x9d could obtain certain\nemployment information from the Department of Health and Human Services \xe2\x80\x9cand under what circumstances.\xe2\x80\x9d GAO Access to National Directory\nof New Hires, 35 Op. O.L.C. 106, 113 (2011). In yet another opinion, we\nconcluded that this principle required that a statute specifically regulating\n\xe2\x80\x9cthe disclosure of information received pursuant to\xe2\x80\x9d the National Traffic\nand Motor Vehicle Safety Act \xe2\x80\x9cprevails over\xe2\x80\x9d the Federal Reports Act,\nwhich \xe2\x80\x9cdeals with . . . the general matter of the intragovernmental exchange of information.\xe2\x80\x9d Disclosure of Confidential Business Records\nObtained Under the National Traffic and Motor Vehicle Safety Act,\n4B Op. O.L.C. 735, 736 (1980).\nIn other instances, we have concluded that the rule of relative specificity operates in tandem with the clear statement rule protecting highly\nsensitive information about which Congress has expressed a special\nconcern for privacy. For instance, we have repeatedly stated that the rule\nof relative specificity, in conjunction with the other clear statement rule\ndiscussed above, favors the \xe2\x80\x9csubsequently enacted, more specific prohibition\xe2\x80\x9d on the disclosure of tax returns contained in 26 U.S.C. \xc2\xa7 6103 over\nthe \xe2\x80\x9cgeneral access provisions\xe2\x80\x9d permitting the Archivist of the United\nStates to obtain the records, including the confidential records, of any\nfederal agency. National Archives Access to Taxpayer Information, 21\nOp. O.L.C. 92, 94\xe2\x80\x9395 (1997). We reasoned that Congress had provided\nthat \xe2\x80\x9ctax returns and tax return information would be disclosed only under\n75\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nthe carefully prescribed conditions set out in\xe2\x80\x9d section 6103, and thus that\nit would be \xe2\x80\x9cunrealistic to assume that Congress intended (but neglected\nto mention) that such materials would also be subject to disclosure under\nthe Archives provisions.\xe2\x80\x9d FBI NARA Memorandum at 2; see also Memorandum for Alice Daniel, Assistant Attorney General, Civil Division, from\nLeon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Applicability of the Non-Disclosure Provisions of the Tax Reform\nAct (Nov. 7, 1980); Transfer of Watergate Records, 1 Op. O.L.C. at 218\xe2\x80\x93\n19. We have similarly relied on the rule of relative specificity to bolster\nour conclusions that Congress would not, absent a clear statement, have\noverridden the \xe2\x80\x9cspecific\xe2\x80\x9d and \xe2\x80\x9ccarefully delineated\xe2\x80\x9d schemes protecting\nRule 6(e), Title III, and census information through general statutes\nproviding broad access to large categories of information held by multiple\ngovernment agencies. FBI NARA Memorandum at 2; see Census Confidentiality, 34 Op. O.L.C. at 15.\nThe rule of relative specificity, of course, does not always favor a withholding statute over an access statute. Sometimes we have deemed the\nrule inapplicable because two competing statutes were comparably specific. In resolving a conflict between Rule 6(e)\xe2\x80\x99s secrecy requirement and\nthe right of access under section 104(a) of the National Security Act, for\nexample, we found the rule inconclusive because both statutes dealt with\n\xe2\x80\x9cnarrow and specialized categories of information\xe2\x80\x9d\xe2\x80\x94although we nonetheless found that Rule 6(e) prevailed over section 104(a) because of the\nclear statement rule protecting highly sensitive information. Rule 6(e)\nIntelligence Community, 21 Op. O.L.C. at 165 n.9; see also Gulf War\nVeterans Health Statutes, 23 Op. O.L.C. 49, 52 (1999) (deeming the\ncanon inconclusive where \xe2\x80\x9cthe two provisions are at the same order of\nspecificity\xe2\x80\x9d). In another circumstance, we concluded that the rule of\nrelative specificity was inconclusive in resolving a conflict between two\nstatutes because each was \xe2\x80\x9cmore specific\xe2\x80\x9d in one respect but \xe2\x80\x9cless specific\xe2\x80\x9d in another. Restrictions on Travel by Voice of America Correspondents, 23 Op. O.L.C. 192, 195 n.2 (1999).\nHere, we believe the rule of relative specificity applies, and suggests\nthat the nondisclosure provisions in Title III, Rule 6(e), and section 626\nshould prevail over the general right of access contained in section 6(a)(1)\nabsent a clear indication of congressional intent to the contrary. Most\nobviously, the withholding statutes address with greater specificity the\n76\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\ntype of information they regulate: where section 6(a)(1) directs agencies\nto disclose \xe2\x80\x9call records\xe2\x80\x9d and other materials within an inspector general\xe2\x80\x99s\ninvestigative jurisdiction, Title III, Rule 6(e), and section 626 address the\ntreatment of narrow and well-defined classes of information. See 18\nU.S.C. \xc2\xa7 2517 (\xe2\x80\x9cthe contents of any [intercepted] wire, oral, or electronic\ncommunication\xe2\x80\x9d); Fed. R. Crim. P. 6(e)(2)(B) (\xe2\x80\x9ca matter occurring before\nthe grand jury\xe2\x80\x9d); 15 U.S.C. \xc2\xa7 1681u(a)\xe2\x80\x93(c) (\xe2\x80\x9cthe names and addresses of\nall financial institutions . . . at which a consumer maintains or has maintained an account,\xe2\x80\x9d the consumer\xe2\x80\x99s \xe2\x80\x9cname, address, former addresses,\nplaces of employment, or former places of employment,\xe2\x80\x9d and \xe2\x80\x9cconsumer\nreport[s]\xe2\x80\x9d). And, as we have explained above, see supra Part II, Congress\n\xe2\x80\x9ccarefully prescribed\xe2\x80\x9d the precise conditions under which disclosure of\nTitle III, Rule 6(e), and section 626 information would be lawful, FBI\nNARA Memorandum at 2. This precise specification makes it \xe2\x80\x9cunrealistic\xe2\x80\x9d to think that Congress would have intended to permit disclosure\noutside of the conditions it prescribed, absent a clear indication of an\nintent to do so. Id.; see Transfer of Watergate Records, 1 Op. O.L.C. at\n218 (\xe2\x80\x9cThe amount of attention that was paid to the formulation of the\nexceptions would allow for an inference that no exception was intended as\nto the Archives.\xe2\x80\x9d); see also Hinck v. United States, 550 U.S. 501, 506\n(2007) (\xe2\x80\x9c[I]n most contexts, a precisely drawn, detailed statute pre-empts\nmore general remedies.\xe2\x80\x9d (internal quotation marks omitted)).\nSection 6(a)(1) is arguably as specific as the withholding statutes with\nrespect to the lawful recipients of information: section 6(a)(1) grants\naccess only to particular identified individuals. However, the careful\nprescriptions of the conditions for disclosure contained in the withholding statutes demonstrates that even in this respect, they are more specific\nthan section 6(a)(1). The withholding statutes specify not only the lawful recipients of Title III, Rule 6(e), and section 626 information, but\nalso the circumstances in which those recipients may obtain information.\nTitle III, for example, authorizes disclosure to investigative or law\nenforcement officers only \xe2\x80\x9cto the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making\nor receiving the disclosure,\xe2\x80\x9d 18 U.S.C. \xc2\xa7 2517(1); Rule 6(e) authorizes\ndisclosure to an attorney for the government only \xe2\x80\x9cfor use in performing\nthat attorney\xe2\x80\x99s duty\xe2\x80\x9d to enforce federal criminal law, Fed. R. Crim. P.\n6(e)(3)(A)(i); and section 626 authorizes the FBI to disclose covered\n77\n\n\x0c39 Op. O.L.C. 12 (2015)\n\ninformation to other federal agencies only \xe2\x80\x9cas may be necessary for the\napproval or conduct of a foreign counterintelligence investigation,\xe2\x80\x9d\n15 U.S.C. \xc2\xa7 1681u(f ). By contrast, section 6(a)(1) authorizes disclosure\nto \xe2\x80\x9cthe Inspector General,\xe2\x80\x9d but the IG Act is silent as to how an inspector general may use information he has obtained pursuant to section\n6(a)(1), other than to set forth the general duties and responsibilities of\nthe office that implicitly constrain the use of such information. See, e.g.,\n5 U.S.C. app. \xc2\xa7 4; Burlington N. R.R. Co. v. Office of Inspector Gen.,\nR.R. Retirement Bd., 983 F.2d 631, 641 (5th Cir. 1993) (\xe2\x80\x9c[A]n Inspector\nGeneral\xe2\x80\x99s investigatory powers generally [do not] extend to matters that\ndo not concern fraud, inefficiency, or waste within a federal agency.\xe2\x80\x9d). 18\nAccordingly, the rule of relative specificity applies here, and reinforces\nthe other clear statement principle discussed above. Just as that principle\nrequires a clear statement before we may conclude that Congress abrogated the confidentiality of Rule 6(e), Title III, or section 626 information, so\nthe rule of relative specificity requires a clear statement before we may\nconclude that the general right of access granted by section 6(a)(1) takes\nprecedence over the specific, carefully delineated limits on disclosure\nCongress set forth in those statutes. 19 It is not surprising that these rules\n18 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\nthe rule of relative specificity inapplicable. We have often applied the rule in comparable\ncircumstances. See, e.g., National Archives Access to Taxpayer Information, 21 Op.\nO.L.C. at 94\xe2\x80\x9395 (concluding that a specific statute regulating the disclosure of tax returns\ntakes precedence over a general statute granting the Archivist of the United States access\nto the records of any federal agency); GAO Access, 12 Op. O.L.C. at 182\xe2\x80\x9383 (concluding\nthat a \xe2\x80\x9cspecific statute directly addressing one executive branch agency\xe2\x80\x99s handling of\ntrade secret information\xe2\x80\x9d takes precedence over a \xe2\x80\x9cgeneral statute addressed to [the\nComptroller General\xe2\x80\x99s access to] all kinds of information in possession of the executive\nbranch\xe2\x80\x9d).\n19 Although the timing of the enactment of conflicting statutes can sometimes be\nrelevant 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\nthought a clear statement was necessary to permit access both to information protected\nby \xe2\x80\x9clong-established polic[ies]\xe2\x80\x9d of confidentiality, Sells, 463 U.S. at 424; see also\nCensus Confidentiality, 34 Op. O.L.C. at 12, and to information protected by statutes\nenacted \xe2\x80\x9csubsequent\xe2\x80\x9d to the competing access provision, FBI NARA Memorandum\nat 2. Likewise, the Supreme Court has held that \xe2\x80\x9ca more specific statute will be given\nprecedence over a more general one, regardless of their temporal sequence.\xe2\x80\x9d Busic v.\nUnited States, 446 U.S. 398, 406 (1980). The clear statement rules we have discussed\n\n78\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nare mutually reinforcing. Ultimately, both stem from the commonsense\nnotion that where Congress has legislated with great care on a particular\nsubject\xe2\x80\x94whether by establishing strict limits on the disclosure of information it considers highly sensitive, or by creating a specific and detailed\nstatutory scheme\xe2\x80\x94it is unlikely to have displaced the limits it imposed\nthrough unclear or general language. As a result, the dispositive question\nin resolving the conflict between section 6(a)(1) and these three withholding statutes is whether Congress clearly expressed an intention in the IG\nAct to grant inspectors general access to information protected by Rule\n6(e), Title III, or section 626 notwithstanding the limits those statutes\nplace on disclosure.\nB.\nWith these principles in mind, we now consider whether section\n6(a)(1) contains the kind of clear statement necessary to override the\nwithholding statutes\xe2\x80\x99 limitations on disclosure. OIG contends that Congress intended the IG Act to grant it \xe2\x80\x9cfull and prompt access to information obtained by [the Department] through the use of \xe2\x80\x9d Title III, Rule\n6, and section 626. OIG 2014 Memorandum at 9. In particular, OIG\nargues that section 6(a)(1) grants it \xe2\x80\x9caffirmative and explicit authority\xe2\x80\x9d to\nobtain those materials, and that the IG Act\xe2\x80\x99s other provisions, structure,\nand purpose indicate that that right of access is not subject to the limits\nimposed by those withholding statutes. Id.; see OIG Supplemental Memorandum at 11\xe2\x80\x9315. OIG\xe2\x80\x99s arguments are substantial. We conclude, however, that the IG Act does not provide the kind of clear indication of\ncongressional intent necessary to override the specific, carefully drawn\nlimitations in Title III, Rule 6(e), and section 626.\nTo begin, the text of the IG Act does not contain the sort of language\nwe have previously found sufficient to constitute a clear statement that\nCongress intends to override more specific statutory provisions that protect sensitive information. The IG Act does not mention Title III or Rule\n6(e), despite having been enacted after these statutes. Cf. Title III Intelligence Community, 24 Op. O.L.C. at 272 (noting that \xe2\x80\x9c[n]othing in the\nlanguage of \xe2\x80\x9d the general disclosure provision of the National Security Act\nabove thus apply equally to Rule 6(e) and Title III, which preceded section 6(a)(1), and\nto section 626, which postdated it.\n\n79\n\n\x0c39 Op. O.L.C. 12 (2015)\n\n\xe2\x80\x9crefers to Title III information,\xe2\x80\x9d despite having been added after Title III);\nCensus Confidentiality, 34 Op. O.L.C. at 9, 12 (noting that section 215\nof the PATRIOT Act \xe2\x80\x9ccontains no express and specific statement indicating an intention\xe2\x80\x9d to override the \xe2\x80\x9cwell-established confidentiality protections set forth in the Census Act,\xe2\x80\x9d and \xe2\x80\x9cmakes no reference to the census\nor the Census Act\xe2\x80\x9d); Rule 6(e) Intelligence Community, 21 Op. O.L.C. at\n165 (\xe2\x80\x9cNeither the text of section 104(a) [of the National Security Act] nor\nits pertinent legislative history contains . . . an affirmative expression of\nintent to override grand jury secrecy restrictions.\xe2\x80\x9d). Nor does the IG Act\ncontain general language addressing potential conflicts with other statutory confidentiality provisions, such as a statement that the inspector general\xe2\x80\x99s right of access shall apply \xe2\x80\x9cnotwithstanding any other law\xe2\x80\x9d or\n\xe2\x80\x9cnotwithstanding any statutory prohibition on disclosure\xe2\x80\x9d\xe2\x80\x94language that\nmight, at least in some circumstances, provide a clearer indication that the\ngeneral access language was supposed to override more specific statutory\nprotections of confidential information. 20 See, e.g., Brady Act Implementation Issues, 20 Op. O.L.C. 57, 62 (1996) (concluding that a Brady Act\nprovision permitting the Attorney General to obtain relevant information\nfrom any department or agency \xe2\x80\x9c[n]otwithstanding any other law\xe2\x80\x9d permitted access to information otherwise subject to restrictions in the Privacy\nAct); Census Confidentiality, 34 Op. O.L.C. at 13 (noting that section 215\nof the PATRIOT Act \xe2\x80\x9ccontains no language\xe2\x80\x9d like \xe2\x80\x9cnotwithstanding any\nprovision of law\xe2\x80\x9d (internal quotation marks omitted)). 21 Thus, while\n20 Even a grant of access that includes a \xe2\x80\x9cnotwithstanding any other provision of law\xe2\x80\x9d\nclause might not, in all circumstances, overcome a conflicting, detailed statutory scheme\nrestricting the disclosure of information. Cf. United States v. Novak, 476 F.3d 1041, 1046\n(9th Cir. 2007) (en banc) (\xe2\x80\x9cIn examining specific statutes, we have not . . . always accorded universal effect to the \xe2\x80\x98notwithstanding\xe2\x80\x99 language, standing alone. Instead, we have\ndetermined the reach of each such \xe2\x80\x98notwithstanding\xe2\x80\x99 clause by taking into account the\nwhole of the statutory context in which it appears.\xe2\x80\x9d (citations omitted)).\n21 Statutes containing such language are not unusual. See, e.g., Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, \xc2\xa7 103(e)(1), 107 Stat. 1536, 1542 (1993)\n(\xe2\x80\x9cNotwithstanding any other law, the Attorney General may secure directly from any\ndepartment or agency of the United States such information . . . as is necessary to enable\nthe [National Instant Criminal Background Check System] to operate in accordance with\nthis section.\xe2\x80\x9d); 12 U.S.C. \xc2\xa7 5226(a)(2)(C)(i) (\xe2\x80\x9cNotwithstanding any other provision of law\n. . . the Comptroller General shall have access, upon request, to any information, data,\nschedules, books, accounts, financial records, reports, files, electronic communications, or\nother papers.\xe2\x80\x9d); 15 U.S.C. \xc2\xa7 78g(f )(2) (\xe2\x80\x9cNotwithstanding any other provision of law . . .\n\n80\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nsection 6(a) establishes a general right of access by inspectors general, it\ndoes not expressly address the relative strength of that right compared to\nother statutory restrictions on disclosure that would by their terms exclude\naccess by inspectors general\xe2\x80\x94let alone clearly resolve that the general\nright of access overrides the conflicting statutory provisions.\nAccording to OIG, the IG Act\xe2\x80\x99s command that agencies provide inspectors general with unfettered access to information is nonetheless clear.\nSection 6(a)(1), OIG observes, authorizes each inspector general \xe2\x80\x9cto have\naccess to all records\xe2\x80\x9d available to his agency and within his investigative\njurisdiction. OIG 2014 Memorandum at 8 (emphasis added). We recognize that the word \xe2\x80\x9call,\xe2\x80\x9d read literally, extends to every record available to\nan agency, whether protected by a withholding statute or not. But the\nSupreme Court has noted that \xe2\x80\x9ccircumstances may counteract the effect of\nexpansive modifiers\xe2\x80\x9d like \xe2\x80\x9call\xe2\x80\x9d or \xe2\x80\x9cany,\xe2\x80\x9d Ali v. Fed. Bureau of Prisons,\n552 U.S. 214, 220 n.4 (2008), particularly in circumstances where a clear\nstatement rule applies. In Raygor v. Regents of University of Minnesota,\n534 U.S. 533 (2002), for example, the Court considered whether a statute\ngranting federal district courts jurisdiction to hear \xe2\x80\x9call other claims\xe2\x80\x9d that\nare part of a case or controversy over which a district court has original\njurisdiction, 28 U.S.C. \xc2\xa7 1367(a) (emphasis added), was sufficiently clear\nto evince congressional intent to abrogate state sovereign immunity. The\nCourt concluded that, despite the facial breadth of the statute, it did not\nconfer jurisdiction on district courts to hear claims against states that did\nnot consent to be sued. \xe2\x80\x9c[E]ven though nothing in the statute expressly\nexclude[d] such claims,\xe2\x80\x9d and the grant of jurisdiction was \xe2\x80\x9cfacially broad\xe2\x80\x9d\nenough to cover them, the Court found the statutory language \xe2\x80\x9cinsufficient to constitute a clear statement of an intent to abrogate state sovereign immunity.\xe2\x80\x9d Raygor, 534 U.S. at 541\xe2\x80\x9342; see also Blatchford v.\nNative Vill. of Noatak & Circle Vill., 501 U.S. 775, 786 (1991) (concluding that 28 U.S.C. \xc2\xa7 1362, which establishes federal jurisdiction over \xe2\x80\x9call\ncivil actions\xe2\x80\x9d that satisfy the amount in controversy requirement (emphasis added), lacks the \xe2\x80\x9cclear legislative statement\xe2\x80\x9d necessary to override\nstate sovereign immunity).\n\nthe Attorney General shall provide the Commission and self-regulatory organizations\ndesignated by the Commission with access to all criminal history record information.\xe2\x80\x9d).\n\n81\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nEven more directly relevant, this Office has concluded that broad, general terms like \xe2\x80\x9call\xe2\x80\x9d and \xe2\x80\x9cany\xe2\x80\x9d do not provide the clear statement of\ncongressional intent needed to override specific, detailed statutory limitations or prohibitions on the disclosure of sensitive information about\nwhich Congress has expressed a special concern for privacy. In our Rule\n6(e) Intelligence Community opinion, for example, we determined that a\nstatute much like the IG Act, which granted the Director of Central Intelligence \xe2\x80\x9caccess to all intelligence related to national security,\xe2\x80\x9d did not\n\xe2\x80\x9cclearly manifest an intent to reach grand jury information.\xe2\x80\x9d 21 Op.\nO.L.C. at 165 (emphasis added). Although we acknowledged that \xe2\x80\x9cthe\n\xe2\x80\x98intelligence\xe2\x80\x99 covered by the statute could reasonably be interpreted to\nencompass certain kinds of grand jury information,\xe2\x80\x9d we thought that\n\xe2\x80\x9c[t]he most that may be said about [the statute\xe2\x80\x99s] text in this regard is that\nit is unclear on the point.\xe2\x80\x9d Id. at 165\xe2\x80\x9366. We later concluded that the same\nstatute\xe2\x80\x94despite the word \xe2\x80\x9call\xe2\x80\x9d\xe2\x80\x94did not authorize unrestricted disclosure\nof Title III information to the Director of Central Intelligence. See Title III\nIntelligence Community, 24 Op. O.L.C. at 272\xe2\x80\x9373. And in our Census\nConfidentiality opinion, we concluded that a section of the Patriot Act authorizing the FBI to obtain \xe2\x80\x9c\xe2\x80\x98any tangible things . . . for an investigation\nto obtain foreign intelligence information\xe2\x80\x99\xe2\x80\x9d was not sufficiently clear to\novercome the presumption of confidentiality for census information.\nCensus Confidentiality, 34 Op. O.L.C. at 6, 9 (emphasis added); see also\nConfidential Treatment of Census Records, 40 Op. Att\xe2\x80\x99y Gen. at 327\xe2\x80\x9328\n(concluding that a statute granting the Archivist of the United States the\n\xe2\x80\x9cauthority to make regulations for the arrangement, custody, use, and\nwithdrawal of material\xe2\x80\x9d requisitioned for deposit in the National Archives\nbuilding, and repealing \xe2\x80\x9c[a]ll Acts or parts\xe2\x80\x9d inconsistent with this authority, did not contain the \xe2\x80\x9cvery clear language\xe2\x80\x9d necessary to abrogate the\nstatutory provisions governing confidential treatment of census records\n(emphasis added)). Thus, the word \xe2\x80\x9call,\xe2\x80\x9d on its own, does not provide the\nclear statement necessary to reach Title III, Rule 6(e), and section 626\ninformation.\nOIG further argues that Congress\xe2\x80\x99s 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\nsection 6(a)(1) grants inspectors general access to materials within the\nagencies they help oversee, section 6(a)(3) of the Act authorizes them to\n82\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\n\xe2\x80\x9crequest . . . information or assistance . . . from any Federal, State, or\nlocal governmental agency or unit thereof.\xe2\x80\x9d 5 U.S.C. app. \xc2\xa7 6(a)(3) (emphasis added). Section 6(b)(1) qualifies this latter authorization by providing:\nUpon request of an Inspector General for information or assistance\nunder subsection (a)(3), the head of any Federal agency involved\nshall, insofar as is practicable and not in contravention of any existing statutory restriction or regulation of the Federal agency from\nwhich the information is requested, furnish to such Inspector General, or to an authorized designee, such information or assistance.\nId. \xc2\xa7 6(b)(1) (emphasis added). Section 6(b)(1) thus makes explicit that\nthe obligation of another agency to respond to an inspector general\xe2\x80\x99s\nrequest for information under section 6(a)(3) is subject to, among other\nthings, \xe2\x80\x9cexisting statutory restriction[s].\xe2\x80\x9d But neither section 6(b)(1) nor\nany other provision in section 6 imposes a similarly express limitation\non the right of access under section 6(a)(1). OIG argues that this omission was intentional, and coupled with the inclusion of the express\nlimitation in section 6(b)(1), implies that Congress intended access\nunder section 6(a)(1) to be \xe2\x80\x9cautomatic\xe2\x80\x9d and free of any \xe2\x80\x9cexisting statutory restriction[s].\xe2\x80\x9d OIG Supplemental Memorandum at 12\xe2\x80\x9313.\nOIG\xe2\x80\x99s argument is \xe2\x80\x9cadmittedly a plausible one,\xe2\x80\x9d Sells, 463 U.S. at 435,\nand in a different interpretive context, it might prevail. But as we have\ndiscussed, before concluding that a general access provision abrogates\ndetailed, specific statutory provisions that restrict disclosure of sensitive\ninformation, both this Office and the courts have required a clear and\nexpress statement to that effect. And despite its plausibility, the inference\nOIG would draw from section 6(b)(1) is simply that: an inference. It is not\na clear statement that plainly and unambiguously indicates that Congress\nintended the general access provision in section 6(a)(1) to trump more\nspecific provisions that protect highly sensitive information. See, e.g.,\nFernandez-Vargas v. Gonzalez, 548 U.S. 30, 41 (2006) (stating that a\n\xe2\x80\x9cnegative inference\xe2\x80\x9d from the absence of express language, found elsewhere in the same statute, that a particular provision was intended to\napply only prospectively would not constitute a \xe2\x80\x9cclear statement\xe2\x80\x9d of intent\nto apply the provision retroactively).\n83\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nMoreover, even if a negative inference could, in some circumstances,\nbe unequivocal enough to establish a clear manifestation of congressional\nintent, the inference OIG invokes would not in our view satisfy that high\nstandard. For one thing, the inference \xe2\x80\x9c\xe2\x80\x98that the presence of a phrase in\none provision and its absence in another reveals Congress\xe2\x80\x99s design . . .\ngrows weaker with each difference in the formulation of the provisions\nunder inspection.\xe2\x80\x99\xe2\x80\x9d Clay v. United States, 537 U.S. 522, 532 (2003)\n(quoting City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536\nU.S. 424, 435\xe2\x80\x9336 (2002)). And here, section 6(b)(1) differs from section\n6(a)(1) in at least two significant ways. First, section 6(b)(1) is structured\nas an adjunct to a separate provision, section 6(a)(3), that allows an inspector general to \xe2\x80\x9crequest\xe2\x80\x9d particular items from an agency other than his\nown. Because section 6(a)(3) establishes only an inspector general\xe2\x80\x99s right\nto request materials from outside his agency, Congress required an additional provision, section 6(b)(1), to specify the scope of other agencies\xe2\x80\x99\nobligations to \xe2\x80\x9cfurnish\xe2\x80\x9d the requested material to an inspector general.\nSection 6(a)(1), in contrast, is not part of a similar bifurcated structure,\nbut rather\xe2\x80\x94by giving an inspector general a right of \xe2\x80\x9caccess\xe2\x80\x9d to certain\nmaterials\xe2\x80\x94establishes both an inspector general\xe2\x80\x99s right to receive and, by\nimplication, the agency\xe2\x80\x99s obligation to provide relevant material. Thus,\nunlike 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\xe2\x80\x99s obligation to\ncomply with an inspector general\xe2\x80\x99s attempt to obtain materials under\nsection 6(a)(1). See Ours Garage, 536 U.S. at 434 (concluding that,\nbecause of significant differences in the formulation of certain related\nstatutory provisions, any negative inference arising from the inclusion in\none provision of a phrase omitted from the other was insufficient to constitute a \xe2\x80\x9cclear and manifest indication\xe2\x80\x9d of congressional intent).\nSecond, as the text of section 6(b)(1) makes clear, Congress chose to\nimpose several limitations on an inspector general\xe2\x80\x99s right to obtain information from outside his agency, including that outside agencies need only\nprovide the requested information \xe2\x80\x9cinsofar as is practicable\xe2\x80\x9d and to the\nextent permitted by \xe2\x80\x9cexisting . . . regulation[s].\xe2\x80\x9d 5 U.S.C. app. \xc2\xa7 6(b)(1).\nThose limitations, because they do not themselves have a statutory basis,\nwould not obviously have applied unless Congress imposed them expressly. But having done so, Congress may have felt compelled to add \xe2\x80\x9cexisting statutory restriction[s]\xe2\x80\x9d to the list of limitations in order to dispel any\n84\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\ninference that it did not intend those restrictions to apply as well. In\ncontrast, Congress chose not to make an inspector general\xe2\x80\x99s right of\naccess under section 6(a)(1) subject to any similar restrictions with a\nnon-statutory source. It therefore had no similar need to expressly refer\nto \xe2\x80\x9cexisting statutory restriction[s]\xe2\x80\x9d when drafting that provision. See\nGomez-Perez v. Potter, 553 U.S. 474, 486\xe2\x80\x9388 (2008) (declining to draw a\nnegative inference from the omission of an express prohibition on retaliation in one section of the Age Discrimination in Employment Act and its\ninclusion in another, where the second section set out \xe2\x80\x9ca specific list of\nforbidden employer practices,\xe2\x80\x9d and the inclusion of retaliation among\nthem may have been necessary to \xe2\x80\x9cdispel any . . . inference\xe2\x80\x9d that \xe2\x80\x9cCongress did not want to reach retaliation\xe2\x80\x9d).\nOIG\xe2\x80\x99s inference is further clouded by the text of section 6(b)(2) of the\nIG Act, which provides that an inspector general shall report to Congress\nif \xe2\x80\x9cinformation or assistance requested under subsection (a)(1) or (a)(3) is,\nin the judgment of [the] Inspector General, unreasonably refused or not\nprovided.\xe2\x80\x9d 5 U.S.C. app. \xc2\xa7 6(b)(2) (emphasis added). This subsection\nsuggests that it is possible to \xe2\x80\x9creasonably\xe2\x80\x9d refuse to grant an inspector\ngeneral access to materials under subsection (a)(1). And if access can\n\xe2\x80\x9creasonably\xe2\x80\x9d be refused under subsection (a)(1), then that provision\ncannot provide the unfettered and absolute right to information asserted\nby OIG. To be sure, it is also possible to read subsection (b)(2) to mean\nthat any information refused under subsection (a)(1) is necessarily refused\n\xe2\x80\x9cunreasonably,\xe2\x80\x9d 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\nsuggest that subsection (a)(1) has an implicit exception, consistent with\nthe principles of statutory interpretation discussed above, for specific\nstatutory schemes protecting highly sensitive information.\nRead together, then, we do not believe the various provisions of section 6 contain the kind of clear statement necessary to overcome the\ncarefully drawn limitations on disclosure of highly sensitive information\nfound in Title III, Rule 6(e), and section 626. And to the extent that those\nprovisions create any ambiguity, the IG Act\xe2\x80\x99s legislative history affirmatively suggests that Congress intended to subject inspector general access\nunder section 6(a)(1) to applicable statutory restrictions. In particular, the\nSenate Report accompanying the IG Act flatly states that section 6(a) is \xe2\x80\x9ca\nbroad mandate permitting the Inspector . . . General the access he needs to\n85\n\n\x0c39 Op. O.L.C. 12 (2015)\n\ndo an effective job subject, of course, to the provisions of other statutes,\nsuch as the Privacy Act.\xe2\x80\x9d S. Rep. No. 95-1071, at 33\xe2\x80\x9334 (1978) (emphasis\nadded). In addition, a version of the bill initially passed by the House of\nRepresentatives would have expressly granted inspectors general access to\nrecords 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\nstatutory limits on disclosure). See H.R. 8588, 95th Cong. \xc2\xa7 5(b)(3) (as\npassed by the House of Representatives, Apr. 18, 1978). 22 The Senate\nremoved that provision from the final version of the bill because, the\nSenate Committee Report explained, the House\xe2\x80\x99s language would have\ngranted inspectors general \xe2\x80\x9ca power that no other official of the executive\nbranch has\xe2\x80\x94the authority to require the transfer of personal information\nfrom any agency . . . without regard for the protections of the Privacy\nAct.\xe2\x80\x9d S. Rep. No. 95-1071, at 13. Removing the provision, the Report\nstated, \xe2\x80\x9cdoes not mean that an Inspector . . . General will be unable to\nobtain needed information to perform his responsibilities. It simply means\nthat the information must be obtained in conformity with the exemptions\nand procedures of the [Privacy Act].\xe2\x80\x9d Id. (emphasis added). The Report\nexplained that this would not be difficult, because \xe2\x80\x9call information within\nthe agency would be available to the Inspector . . . General, based on the\n\xe2\x80\x98intra-agency\xe2\x80\x99 exemption\xe2\x80\x9d included in the Privacy Act itself. Id. (emphasis added). This language strongly suggests that, at least in the Committee\xe2\x80\x99s view, inspectors general would remain subject to other statutory\nrequirements, including statutory restrictions on use and disclosure, when\nseeking access under section 6(a)(1), and further undermines the notion\n22\n\nThis draft provided:\nIn the event any record or other information requested by the Inspector General\nunder 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\nor information shall be available to the Inspector General in the same manner and\nto the same extent it would be available to the Comptroller General.\n\nH.R. 8588, \xc2\xa7 5(b)(3). The \xe2\x80\x9csubsection[s] (a)(1) [and] (a)(3)\xe2\x80\x9d referred to in this provision\nof the House bill are identical to those currently found at sections 6(a)(1) and 6(a)(3) of\nthe IG Act as enacted. Compare id. \xc2\xa7 5(a)(1), (3), with 5 U.S.C. app. \xc2\xa7 6(a)(1), (3). Title\n5, section 552a is the Privacy Act, which (then as now) expressly exempted the Comptroller General from the Privacy Act\xe2\x80\x99s general prohibition on the disclosure of covered\ninformation. See 5 U.S.C. \xc2\xa7 552a(b)(10).\n\n86\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nthat Congress intended to grant access to Rule 6(e), Title III, and section\n626 information without regard to the limitations set forth in those statutes. 23\nOIG also invokes a later-enacted IG Act provision specific to the Department\xe2\x80\x94current section 8E\xe2\x80\x94to support its reading of section 6(a)(1).\nAs 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 \xe2\x80\x9cnecessary to prevent the disclosure of \xe2\x80\x9d certain sensitive information\xe2\x80\x94such as\n\xe2\x80\x9csensitive information concerning . . . ongoing civil or criminal investigations\xe2\x80\x9d or \xe2\x80\x9cthe identity of confidential sources\xe2\x80\x9d\xe2\x80\x94\xe2\x80\x9cor to prevent the significant impairment to the national interests of the United States.\xe2\x80\x9d 5 U.S.C.\napp. \xc2\xa7 8E(a)(1), (2). It further provides that if the Attorney General exercises such authority, she must \xe2\x80\x9cnotify the Inspector General in writing\nstating the reasons for such exercise,\xe2\x80\x9d and that OIG must transmit a copy\nof that notice to appropriate committees in Congress. Id. \xc2\xa7 8E(a)(3). OIG\nargues that the \xe2\x80\x9cexacting procedures\xe2\x80\x9d imposed by this provision, as well\nas its historically \xe2\x80\x9cinfrequent use,\xe2\x80\x9d confirm that section 8E represents an\n\xe2\x80\x9cextraordinary departure from the baseline rule, established by section 6,\nthat the Inspectors General enjoy access to documents and materials,\xe2\x80\x9d and\ndemonstrates that only in the specific circumstances set out in section 8E\nmay the Attorney General withhold requested records. OIG Supplemental\nMemorandum at 18; see OIG 2014 Memorandum at 8\xe2\x80\x939.\nOIG responds to this argument by contending that \xe2\x80\x9cthe phrase \xe2\x80\x98subject . . . to\xe2\x80\x99\xe2\x80\x9d in the\nSenate Report \xe2\x80\x9cdoes not necessarily mean that [an inspector general\xe2\x80\x99s] right of access to\ndocuments and materials is restricted by general statutory or regulatory limitations on the\ndisclosure of those materials; it is just as plausible to read \xe2\x80\x98subject . . . to\xe2\x80\x99 to mean that,\nwhen using the materials they access, the IGs are not exempt from any statutory and\nregulatory limitations on disclosure.\xe2\x80\x9d OIG Supplemental Memorandum at 15. But the\nquoted passage from the Senate Report is not addressed to an inspector general\xe2\x80\x99s use of\ninformation; rather, it specifically addresses access to information, and is contained in a\nsection of the Senate Report discussing the right of access provided by section 6(a). See\nS. Rep. No. 95-1071, at 33\xe2\x80\x9334. Moreover, the Report separately makes the same point\nwhen discussing limitations on disclosure. See id. at 32 (\xe2\x80\x9c[T]he Inspector . . . General\nmust adhere to statutes such as 26 U.S.C. \xc2\xa7 6013 [sic], dealing with tax returns, or Federal\nRule of Criminal Procedure 6(e), dealing with grand jury information, which prohibit\ndisclosure even to Congress.\xe2\x80\x9d). In addition, OIG\xe2\x80\x99s argument does not address the Report\xe2\x80\x99s\nmulti-page discussion of the Privacy Act exception and the effect of its omission from the\nbill that ultimately became the IG Act.\n23\n\n87\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nWe disagree. For one thing, section 6(a)(1) was enacted in 1978 as part\nof the original IG Act, while section 8E, like the special provisions applicable to other departments and agencies, was added to the statute years\nlater. 24 The negative inference that OIG seeks to draw from the inclusion\nof certain heightened procedures in section 8E is therefore attenuated. See\nGomez-Perez, 553 U.S. at 486 (\xe2\x80\x9c\xe2\x80\x98[N]egative implications raised by disparate provisions are strongest\xe2\x80\x99 in those instances in which the relevant\nstatutory provisions were \xe2\x80\x98considered simultaneously when the language\nraising the implication was inserted.\xe2\x80\x99\xe2\x80\x9d (alteration in original) (quoting\nLindh v. Murphy, 521 U.S. 320, 330 (1997))). In any event, that inference\nis unconvincing on its own terms. Section 8E does not authorize the\nAttorney General to withhold only those records protected from disclosure by statute. Indeed, many of the records that the Attorney General\nmay withhold under that section are not entitled to protection under any\nstatute. For example, \xe2\x80\x9cinformation concerning . . . ongoing civil or criminal investigations\xe2\x80\x9d or \xe2\x80\x9cthe identity of confidential sources,\xe2\x80\x9d 5 U.S.C. app.\n\xc2\xa7 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,\nmuch 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\nmatter described in that section. Section 8E thus does not merely duplicate the protections afforded by Title III, Rule 6(e), or section 626; it\ngrants the Attorney General authority over disclosures that is in some\nrespects broader, and in some respects narrower, than the requirements of\nthose provisions, and thus serves a distinct purpose.\nFinally, in addition to these arguments based on the Act\xe2\x80\x99s text and\nstructure, OIG appeals to the general purposes of the IG Act. This statute\nwas intended, OIG explains, to grant inspectors general a broad right of\n\nIn addition to section 8E, which applies to the Department, sections 8 through 8I of\nthe IG Act contain special provisions relating to the Department of Defense (section 8),\nthe Agency for International Development (section 8A), the Nuclear Regulatory Commission (section 8B), the Federal Deposit Insurance Corporation (section 8C), the\nDepartment of the Treasury (section 8D), the Corporation for National and Community\nService (section 8F), certain federal entities (section 8G), Inspectors General of the\nIntelligence Community (section 8H), and the Department of Homeland Security (section 8I). See 5 U.S.C. app. \xc2\xa7\xc2\xa7 8\xe2\x80\x938I.\n24\n\n88\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\naccess to agency materials, including records containing sensitive information, so that they could conduct meaningful reviews of programs\nwithin their jurisdiction. See OIG Supplemental Memorandum at 12, 14\xe2\x80\x93\n15. OIG points out, for instance, that the Act\xe2\x80\x99s Senate Report characterizes section 6(a) as a \xe2\x80\x9c\xe2\x80\x98broad mandate\xe2\x80\x99\xe2\x80\x9d and describes such access as\n\xe2\x80\x9c\xe2\x80\x98obviously crucial.\xe2\x80\x99\xe2\x80\x9d Id. at 16 (quoting S. Rep. No. 95-1071, at 33\xe2\x80\x9334);\nsee also, e.g., H.R. Rep. No. 95-584, at 14 (stating that the access provision \xe2\x80\x9cmakes clear that each Inspector General is to have access to all\nrecords, documents, et cetera, available to his or her agency which relate\nto programs and operations with respect to which the office has responsibilities\xe2\x80\x9d). OIG argues that this goal would be undermined by a construction of the statute that prohibited it from obtaining materials protected by\nTitle III, Rule 6(e), and section 626.\nWe agree that Congress intended to grant each inspector general a\nbroad right of access, and we do not doubt that such a right of access is\ncrucial to enabling OIG to fulfill its statutory mission. But this kind of\ngeneral congressional intent does not resolve the specific question at issue\nhere: whether Congress clearly expressed an intention that the inspector\ngeneral\xe2\x80\x99s \xe2\x80\x9cbroad mandate\xe2\x80\x9d in section 6(a)(1) supersede the limits on\ndisclosure contained in Title III, Rule 6(e), and section 626. As we have\nnoted, the IG Act\xe2\x80\x99s text contains no such expression of intent, and the\nAct\xe2\x80\x99s legislative history affirmatively indicates that Congress did not\nintend to grant that kind of unlimited access to inspectors general. Moreover, in the same Report in which the Senate Committee described the\n\xe2\x80\x9cbroad mandate\xe2\x80\x9d found in section 6(a)(1)\xe2\x80\x94indeed, in the same sentence\xe2\x80\x94it also stated that an inspector general\xe2\x80\x99s access would be \xe2\x80\x9csubject,\nof course, to the provisions of other statutes, such as the Privacy Act.\xe2\x80\x9d\nS. Rep. No. 95-1071, at 33\xe2\x80\x9334; see also id. at 13\xe2\x80\x9314. 25 It thus appears\nCongress did not believe (let alone clearly indicate) that the broad right of\n25\n\nThe full passage reads:\nAccess to all relevant documents available to the applicable [agency] relating to\nprograms and operations for which the Inspector and Auditor General has responsibilities is obviously crucial. The committee intends this subsection to be a broad\nmandate permitting the Inspector and Auditor General the access he needs to do an\neffective job, subject, of course, to the provisions of other statutes, such as the\nPrivacy Act.\n\nS. Rep. No. 95-1071, at 33\xe2\x80\x9334.\n\n89\n\n\x0c39 Op. O.L.C. 12 (2015)\n\naccess it was giving each inspector general was inconsistent with requiring compliance with specific statutory regimes that protect highly sensitive information.\nIn sum, neither the text of the IG Act, nor its legislative history, nor its\ngeneral purpose offers a clear indication that Congress intended to override the separate statutory confidentiality requirements applicable to Title\nIII, Rule 6(e), and section 626 information. As a result, under both the\nprinciple requiring that a statute contain a clear statement in order to\nabrogate protections of highly sensitive information, and the rule of\nrelative specificity, OIG remains subject to the limitations imposed by\nTitle III, Rule 6(e), and section 626. The Department therefore may not\ndisclose information covered by those statutes except in accordance with\ntheir provisions. 26\nIV.\nWe have also considered whether a recent appropriations rider grants\nOIG access to information it could otherwise not obtain under Title III,\nRule 6(e), or section 626. Section 218 of the Consolidated and Further\nContinuing Appropriations Act, 2015, Pub. L. No. 113-235, 128 Stat.\n2130, 2200 (2014), provides:\nNo funds provided in this Act shall be used to deny the Inspector\nGeneral of the Department of Justice timely access to all records,\ndocuments, and other materials in the custody or possession of the\nDepartment or to prevent or impede the Inspector General\xe2\x80\x99s access\nto such records, documents and other materials, unless in accordance\nwith an express limitation of section 6(a) of the Inspector General\nAct, as amended, consistent with the plain language of the Inspector\nGeneral Act, as amended. The Inspector General of the Department\n\nWe 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\n626. Resolution of that issue would depend on whether those other statutes protected\nhighly sensitive information about which Congress has \xe2\x80\x9cexpressed a strong congressional\nintent to maintain very strict privacy,\xe2\x80\x9d FBI NARA Memorandum at 1\xe2\x80\x932, whether those\nstatutes regulated the treatment of covered information with greater specificity than the IG\nAct, and whether the IG Act or some other relevant statute contained a clear statement\nauthorizing disclosure of the information to inspectors general.\n26\n\n90\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nof Justice shall report to the Committees on Appropriations within\nfive calendar days any failures to comply with this requirement.\nThis rider permits the Department to expend Fiscal Year 2015 funds to\nwithhold records from OIG only where doing so would be \xe2\x80\x9cin accordance\nwith an express limitation of section 6(a) of \xe2\x80\x9d the IG Act, \xe2\x80\x9cconsistent with\nthe plain language of \xe2\x80\x9d 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\xe2\x80\x94and so effectively obligates the Department to\ngrant\xe2\x80\x94OIG access to records in a \xe2\x80\x9ctimely\xe2\x80\x9d manner, a matter on which\nthe 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\nviolate the Anti-Deficiency Act, 31 U.S.C. \xc2\xa7 1341 et seq., a statute that\nsubjects federal officials obligating or expending funds in advance or in\nexcess of appropriations to administrative penalties, and to criminal\npenalties in the case of knowing and willful violations, id. \xc2\xa7\xc2\xa7 1341(a),\n1349(a), 1350.\nOIG contends that, for two independent reasons, section 218 affirms its\nright to obtain Title III, Rule 6(e), and section 626 information notwithstanding the disclosure limitations in those statutes. First, according to\nOIG, section 218 reflects a congressional understanding that section\n6(a)(1) of the IG Act requires the Department to disclose all relevant\nmaterials to OIG. \xe2\x80\x9cThe passage of [section 218],\xe2\x80\x9d OIG argues, \xe2\x80\x9cserves as\na reaffirmation of clear congressional intent, originally manifested in\nsection 6(a) . . . that the OIG is entitled to access to \xe2\x80\x98all records, reports,\naudits, reviews, documents, papers, recommendations, or other material\navailable to\xe2\x80\x99 the Department.\xe2\x80\x9d OIG 2015 E-mail; see OIG 2014 Memorandum at 4. Second, regardless of the correct interpretation of section\n6(a)(1), OIG argues that section 218 independently and \xe2\x80\x9cunequivocal[ly]\xe2\x80\x9d\nrequires the Department to disclose to OIG all information it requests,\nunless the Department withholds that information pursuant to a provision,\nsuch as section 8E, that expressly limits the right of access granted by the\nIG Act. OIG 2015 E-mail; see The Department of Justice Office of the\nInspector General\xe2\x80\x99s Fiscal Year 2016 Budget Request: Hearing Before\n91\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nthe Subcomm. on Commerce, Justice, Sci. & Related Agencies of the H.\nComm. on Appropriations, 114th Cong. 9\xe2\x80\x9310 (2015) (statement of Michael E. Horowitz, Inspector Gen., Dep\xe2\x80\x99t of Justice). Because neither Title\nIII nor Rule 6(e) nor section 626 expressly addresses disclosures under the\nIG Act, the rider (in OIG\xe2\x80\x99s view) prohibits the Department from expending Fiscal Year 2015 appropriated funds to withhold Title III, Rule 6(e),\nor section 626 materials from OIG. See OIG 2015 E-mail.\nAlthough OIG\xe2\x80\x99s 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\xe2\x80\x99s first\nargument, we have already concluded, for the reasons set forth in Part III\nabove, that the IG Act lacks the clear statement of congressional intent\nnecessary to override the detailed and specific statutory disclosure prohibitions set forth in Title III, Rule 6(e), and section 626. In order to alter\nthis conclusion about the IG Act\xe2\x80\x99s meaning, section 218 would need to\ncontain a clear statement indicating that section 6(a)(1) should be interpreted to override those statutory limitations on disclosure. But it is not\nclear that section 218 contains any instruction about how the IG Act\nshould be interpreted: it does not expressly declare the Act\xe2\x80\x99s meaning,\namend the Act to clarify its terms, or depend for its effectiveness on a\nparticular interpretation of the IG Act. See Almendarez-Torres v. United\nStates, 523 U.S. 224, 237 (1998) (concluding that a later-enacted law that\nlacks these features, or any other \xe2\x80\x9cforward looking legislative mandate,\nguidance, or direct suggestion about how [to] interpret [an] earlier provision[],\xe2\x80\x9d is \xe2\x80\x9cbeside the point\xe2\x80\x9d in interpreting that provision). It is possible\nthat Congress intended\xe2\x80\x94by providing that the Department may not expend Fiscal Year 2015 funds to withhold information from OIG \xe2\x80\x9cunless in\naccordance with an express limitation of section 6(a) of the [IG Act],\nconsistent with the plain language of the [Act]\xe2\x80\x9d\xe2\x80\x94to convey its understanding of what the \xe2\x80\x9cplain language\xe2\x80\x9d of the IG Act means. But this\ninference, itself far from clear, would merely raise the question of what\nqualifies as \xe2\x80\x9can express limitation of section 6(a),\xe2\x80\x9d a phrase that is in turn\nsubject to various interpretations. Given these multiple layers of uncertainty, section 218 does not provide a clear statement that the IG Act\nshould be interpreted to override the limitations on disclosure contained in\nTitle III, Rule 6(e), and section 626.\n92\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nWe also disagree that, considered on its own, the rider contains a clear\nstatement of Congress\xe2\x80\x99s intent to override those limitations on disclosure.\nAs noted above, section 218 permits Department officials to deny materials to OIG \xe2\x80\x9cin accordance with an express limitation of section 6(a) of the\nInspector General Act, as amended, consistent with the plain language of\nthe [Act], as amended.\xe2\x80\x9d In our view, there are at least three conceivable\nconstructions of the phrase \xe2\x80\x9cexpress limitation of section 6(a) of the\nInspector General Act.\xe2\x80\x9d First, it could be interpreted to encompass only\nthose limitations on disclosure that either appear in section 6(a) itself or\nexpressly refer to that section. Second, it could be interpreted to encompass only those limitations on disclosure that are specifically directed at\ndisclosures to OIG under the IG Act, whether or not they explicitly refer\nto section 6(a). Third, it could be interpreted to encompass all \xe2\x80\x9cexpress\xe2\x80\x9d\nlimitations on disclosure that, when considered in conjunction with section 6(a), are properly deemed to function as \xe2\x80\x9climitation[s] of section\n6(a).\xe2\x80\x9d For the reasons discussed below, we believe that the first interpretation is not plausible, but that the second and third interpretations are. And\nbecause the third interpretation would allow the Department to continue to\nwithhold materials from OIG to the extent required under the terms of\nTitle III, Rule 6(e), and section 626, section 218 does not in our view\nconstitute the sort of clear statement of congressional intent necessary to\noverride those nondisclosure provisions.\nUnder the first potential interpretation of the rider, Department officials would be prohibited from denying OIG access to documents and\nother materials except pursuant to a \xe2\x80\x9climitation of section 6(a)\xe2\x80\x9d that\n\xe2\x80\x9cexpress[ly]\xe2\x80\x9d referred to (or was contained in) section 6(a) itself. This is\na natural reading of section 218\xe2\x80\x99s text. However, if this reading were\ncorrect, section 218 would prohibit Department officials from withholding records from OIG not only under Title III, Rule 6(e), and section 626,\nbut also under section 8E of the IG Act: while section 8E plainly authorizes the withholding of certain records otherwise accessible under section\n6(a), it does not refer explicitly to section 6(a). Section 218 does not\nexpressly state that it was intended to partially repeal section 8E of the\nIG Act, and in our view, it is implausible to construe it as having done so\nimplicitly. See infra p. 96 (discussing strong presumption against implied\nrepeals in appropriations acts). Moreover, such a reading would be inconsistent, rather than \xe2\x80\x9cconsistent,\xe2\x80\x9d with the \xe2\x80\x9cplain language of \xe2\x80\x9d other\n93\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nparts of the IG Act, and thus would fail to make sense of section 218 as a\nwhole. See, e.g., Food & Drug Admin. v. Brown & Williamson Tobacco\nCorp., 529 U.S. 120, 133 (2000) (\xe2\x80\x9cA court must . . . interpret the statute\nas a symmetrical and coherent regulatory scheme and fit, if possible, all\nparts into an harmonious whole.\xe2\x80\x9d (citations and internal quotation marks\nomitted)). It is thus unsurprising that OIG does not advance this reading.\nSee OIG 2015 E-mail (stating that section 8E is an \xe2\x80\x9cexpress limitation\xe2\x80\x9d\nwithin the meaning of section 218).\nUnder the second potential interpretation, an \xe2\x80\x9cexpress limitation of section 6(a)\xe2\x80\x9d would be one that expressly referred to disclosures to OIG,\nalthough not specifically to section 6(a). On this reading, Department\nofficials could withhold information under section 8E, which expressly\naddresses disclosures to OIG. See 5 U.S.C. app. \xc2\xa7 8E. But they would be\nforeclosed from withholding information from OIG pursuant to Title III,\nRule 6(e), and section 626, because these provisions contain no express\nreference to OIG. This is not the most natural reading of section 218\xe2\x80\x99s\ntext: the phrase \xe2\x80\x9cin accordance with an express limitation of section 6(a)\nof the [IG Act]\xe2\x80\x9d is not easily read to mean \xe2\x80\x9cin accordance with a limitation that expressly addresses disclosures to OIG under the IG Act.\xe2\x80\x9d\nNonetheless, given that section 6(a) is the principal provision in the IG\nAct 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\narguably gains plausibility from the fact that, as OIG observes, the Department\xe2\x80\x99s Inspector General testified before the relevant Senate appropriations subcommittee several months before the rider was enacted,\nobjecting to the Department\xe2\x80\x99s failure to grant OIG direct access to materials protected by Title III, Rule 6(e), and section 626. See The Department\nof Justice\xe2\x80\x99s Fiscal Year 2015 Budget Request: Hearing Before the Subcomm. on Commerce, Justice, Sci. & Related Agencies of the S. Comm. on\nAppropriations, 113th Cong. 7\xe2\x80\x938 (2014) (statement of Michael E. Horowitz, Inspector Gen., Dep\xe2\x80\x99t of Justice). But see Regan v. Wald, 468 U.S.\n222, 237 (1984) (expressing \xe2\x80\x9cgrave doubts\xe2\x80\x9d about the interpretive value\nof \xe2\x80\x9c[o]ral testimony of witnesses and individual Congressmen, unless very\nprecisely directed to the intended meaning of particular words in a statute\xe2\x80\x9d).\n94\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\nUnder the third potential interpretation of the rider, an \xe2\x80\x9cexpress limitation of section 6(a)\xe2\x80\x9d would include any explicit statutory nondisclosure\nprovision that, properly construed, operated to prevent disclosure of\nmaterial that OIG could otherwise obtain under section 6(a). This reading of section 218 would permit withholding not only pursuant to section\n8E, but also pursuant to Title III, Rule 6(e), and section 626. The reading\nis reasonably grounded in statutory text. Statutes like Title III, Rule 6(e),\nand section 626 can be considered \xe2\x80\x9climitations of section 6(a)\xe2\x80\x9d in that\nthey supersede section 6(a) in situations where both section 6(a) and one\nof those statutes would apply. See supra Part III.B. They can be considered \xe2\x80\x9cexpress\xe2\x80\x9d limitations, in that they explicitly contemplate, in statutory\ntext, nondisclosure in the circumstances they address. And for the reasons\nwe have explained above, reading these statutory provisions to limit\ndisclosures under section 6(a)(1) is \xe2\x80\x9cconsistent with the plain language\nof \xe2\x80\x9d the IG Act, as construed using standard tools of statutory interpretation. See supra Part III.B.\nIn our view, although both the second and third interpretations of section 218 are plausible, the third is more appropriate in light of the relevant\nprinciples of statutory interpretation. As discussed in Part III above, in\norder to override the specific withholding provisions in Title III, Rule\n6(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\ncontend that the phrase \xe2\x80\x9cunless in accordance with an express limitation\nof section 6(a) of the [IG Act], consistent with the plain language of the\n[Act],\xe2\x80\x9d clearly means that all materials must be disclosed to OIG absent\nexpress language establishing that the materials need not be turned over.\nBut as we have discussed, this interpretation requires reading unstated\nlimitations into the rider\xe2\x80\x99s text, since (as OIG concedes) section 218\xe2\x80\x99s\nreference to an \xe2\x80\x9cexpress limitation of section 6(a)\xe2\x80\x9d encompasses section\n8E, a limitation that does not expressly refer to section 6(a). Moreover, as\nwas 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\xe2\x80\x99\nexemptions. Because the phrase is susceptible to alternative interpretations, one of which would permit withholding under Title III, Rule 6(e),\nand section 626, it does not constitute a sufficiently clear statement to\n95\n\n\x0c39 Op. O.L.C. 12 (2015)\n\noverride the limitations on disclosure imposed by those statutes. See supra\nPart III.\nFurthermore, it is significant that section 218 appears in an appropriations act that post-dates the provisions in Title III, Rule 6(e), and section\n626 of FCRA. The Supreme Court has long held that a later statute will\nnot be read to repeal an earlier one, even in part, unless Congress\xe2\x80\x99s\nintent to repeal the earlier statute with the later one is \xe2\x80\x9cclear and manifest.\xe2\x80\x9d Nat\xe2\x80\x99l Ass\xe2\x80\x99n of Home Builders v. Defenders of Wildlife, 551 U.S.\n644, 662\xe2\x80\x9363 (2007) (internal quotation marks omitted); see Tenn. Valley\nAuth. v. Hill, 437 U.S. 153, 189 (1978) (refusing to read an appropriations act as overriding the Endangered Species Act \xe2\x80\x9cinsofar as it applies\nto the Tellico Project\xe2\x80\x9d absent \xe2\x80\x9c\xe2\x80\x98clear and manifest\xe2\x80\x99\xe2\x80\x9d evidence); Posadas\nv. Nat\xe2\x80\x99l City Bank of N.Y., 296 U.S. 497, 501, 504 (1936) (declining to\nread a statute as overriding the Federal Reserve Act of 1913 \xe2\x80\x9cin so far as\nthe Philippine Islands are concerned\xe2\x80\x9d unless such a reading was a \xe2\x80\x9cnecessary\xe2\x80\x9d implication). This principle applies \xe2\x80\x9cwith even greater force\nwhen the claimed repeal rests solely on an Appropriations Act,\xe2\x80\x9d because\n\xe2\x80\x9clegislators are entitled to operate under the assumption that the funds\nwill be devoted to purposes which are lawful and not for any purpose\nforbidden,\xe2\x80\x9d and because Congress\xe2\x80\x99s own rules \xe2\x80\x9cexpressly prohibit[]\xe2\x80\x9d\nsubstantive changes to existing law in appropriations bills. Hill, 437\nU.S. at 190\xe2\x80\x9391; see Rules of the House of Representatives, 114th Cong.,\nR. XXI(2)(b) (2011) (\xe2\x80\x9cA provision changing existing law may not be\nreported in a general appropriation bill[.]\xe2\x80\x9d). Accordingly, there is a\n\xe2\x80\x9cvery strong presumption\xe2\x80\x9d that appropriations measures do not \xe2\x80\x9camend\nsubstantive law,\xe2\x80\x9d a presumption that may be overcome only by \xe2\x80\x9cunambiguous[]\xe2\x80\x9d evidence to the contrary. Calloway v. Dist. of Columbia, 216\nF.3d 1, 9 (D.C. Cir. 2000).\nWe do not believe this presumption is overcome with respect to section\n218. The rider\xe2\x80\x99s text does not mention Title III, Rule 6(e), or section 626,\nnor does it state that the provision is intended to amend existing statutes\nin any way. Cf. Am. Fed\xe2\x80\x99n of Gov\xe2\x80\x99t Emps., AFL-CIO v. Campbell, 659\nF.2d 157, 161 (D.C. Cir. 1980) (finding implied repeal where an appropriations act made an \xe2\x80\x9cexpress reference to the earlier statute\xe2\x80\x9d). As far as we\nare aware, the only statements in the legislative history concerning the\nrider explain that it \xe2\x80\x9cis designed to improve OIG access to Department\ndocuments and information,\xe2\x80\x9d 160 Cong. Rec. H9345 (daily ed. Dec. 11,\n96\n\n\x0cAccess of DOJ IG to Certain Information Protected from Disclosure by Statute\n\n2014) (explanatory statement submitted by Rep. Rogers), and that it\n\xe2\x80\x9crequires the Department to provide documents to the Inspector General\nthat are necessary as part of audits and investigations,\xe2\x80\x9d S. Rep. No. 113181, at 103 (2014). But both these goals would be advanced by all the\nreadings we have discussed, including the reading under which section\n218 does not implicitly repeal Title III, Rule 6(e), and section 626. Cf.\nNat\xe2\x80\x99l Treasury Emps. Union v. Devine, 733 F.2d 114, 120 (D.C. Cir.\n1984) (finding implied repeal of personnel regulations where \xe2\x80\x9cCongress\nexpressly stated [in the legislative history] that it wished to prevent the\neffectuation\xe2\x80\x9d of the policies set forth in those regulations). Although\ninterpreting section 218 to permit the Department to withhold materials\nunder the provisions of Title III, Rule 6(e), and section 626 would not\nexpand the scope of records available to OIG, it would help ensure that\nthe Department complied with the terms of the IG Act by requiring it to\ngrant OIG access in a \xe2\x80\x9ctimely\xe2\x80\x9d manner; by obligating OIG to promptly\nreport incidents of noncompliance to the appropriations committees; and\nby adding the possibility of Anti-Deficiency Act consequences for failure\nto comply. On this interpretation, the purpose of section 218 would be to\nreaffirm and reinforce the existing disclosure requirements in the IG Act.\nWe acknowledge that OIG\xe2\x80\x99s 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\ncomments in the legislative record, but that it be \xe2\x80\x9cunambiguous[],\xe2\x80\x9d Calloway, 216 F.3d at 9; \xe2\x80\x9cclear and manifest,\xe2\x80\x9d Nat\xe2\x80\x99l Ass\xe2\x80\x99n of Home Builders,\n551 U.S. at 662 (internal quotation marks omitted); or \xe2\x80\x9cnecessary,\xe2\x80\x9d Posadas, 296 U.S. at 504. As we have explained, because section 218 can also\nreasonably be read to permit the Department to continue to abide by the\n\xe2\x80\x9cexpress limitations\xe2\x80\x9d on disclosure in Title III, Rule 6(e), and section 626,\nOIG\xe2\x80\x99s interpretation is not compelled by the text; hence, the rider does not\noffer \xe2\x80\x9cunambiguous\xe2\x80\x9d evidence that Congress intended to partially repeal\nexisting statutory prohibitions on disclosure. Calloway, 216 F.3d at 9. In\nlight of the \xe2\x80\x9cvery strong\xe2\x80\x9d presumption against implied repeals in appropriations acts, id., and the other interpretive principles we have identified,\nwe believe section 218 is best read to permit adherence to the disclosure\nrestrictions in Title III, Rule 6(e), and section 626.\n97\n\n\x0c39 Op. O.L.C. 12 (2015)\n\nV.\nFor the foregoing reasons, we conclude that Title III, Rule 6(e), and\nsection 626 permit the Department to disclose certain statutorily protected\ninformation to OIG in certain circumstances. We further conclude that to\nthe extent those statutes prohibit disclosure of such information, neither\nthe IG Act nor section 218 permits the Department to disclose it.\nKARL R. THOMPSON\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n98\n\n\x0c'