b'Census Confidentiality and the PATRIOT Act\nThe Uniting and Strengthening America by Providing Appropriate Tools Required to\nIntercept and Obstruct Terrorism Act of 2001 does not require the Secretary of Commerce to disclose census information to federal law enforcement or national security\nofficers where such disclosure would otherwise be prohibited by the Census Act.\nJanuary 4, 2010\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nDEPARTMENT OF COMMERCE\nYou have asked whether the Uniting and Strengthening America by\nProviding Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (\xe2\x80\x9cPATRIOT Act\xe2\x80\x9d), as\namended, may require the Secretary of Commerce to disclose census\ninformation to federal law enforcement or national security officers\nwhere such disclosure would otherwise be prohibited by the Census Act,\n13 U.S.C. \xc2\xa7\xc2\xa7 8, 9, 214 (2006). We have identified no provisions of the\nPATRIOT Act that would compel the Secretary to disclose such protected\ninformation. 1\nI.\nTo help promote the public cooperation on which an accurate census\nlargely depends, federal census statutes have long provided assurances\nof confidentiality to respondents. See generally Baldrige v. Shapiro, 455\nU.S. 345, 354, 356\xe2\x80\x9359 (1982). This Office has described the current\nCensus Act confidentiality provisions as \xe2\x80\x9cthe most recent codification of\na statutory confidentiality requirement that dates back more than a century\nand that bars the disclosure of covered census information by census\nWe solicited views from the Federal Bureau of Investigation (\xe2\x80\x9cFBI\xe2\x80\x9d) and the Criminal, National Security, and Civil Rights Divisions of the Department of Justice. The\nCriminal Division, upon review, offered no views. The FBI and the Civil Rights Division\nconcurred with the Department of Commerce in the view that no provisions of the\nPATRIOT Act override the Census Act\xe2\x80\x99s protections for covered census information\npossessed by the Commerce Department. The National Security Division disagreed,\ncontending that section 215 of the PATRIOT Act, as amended, may allow for a court\norder to compel the Secretary to disclose furnished census information. We address this\nprovision and the National Security Division\xe2\x80\x99s views in greater detail below.\n1\n\n1\n\n\x0c34 Op. O.L.C. 1 (2010)\n\nofficials.\xe2\x80\x9d Relationship Between Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and Statutory Requirement for Confidentiality of Census Information, __ Op. O.L.C. Supp. __, at *1 (May 18,\n1999) (\xe2\x80\x9cIIRIRA Opinion\xe2\x80\x9d). The Census Act provides:\nNeither the Secretary [of Commerce], nor any other officer or employee of the Department of Commerce or bureau or agency thereof,\nor local government census liaison, may, except as provided in section 8 or 16 or chapter 10 of this title or section 210 of the Departments of Commerce, Justice, and State, the Judiciary, and Related\nAgencies Appropriations Act, 1998 or section 2(f ) of the Census of\nAgriculture Act of 1997\xe2\x80\x94\n(1) use the information furnished under the provisions of this title [the Census Act] for any purpose other than the statistical purposes for which it is supplied; or\n(2) make any publication whereby the data furnished by any\nparticular establishment or individual under this title can be identified; or\n(3) permit anyone other than the sworn officers and employees\nof the Department or bureau or agency thereof to examine the individual reports.\n13 U.S.C. \xc2\xa7 9(a).\nThe cross-referenced statutes in section 9(a) presently provide exceptions only for disclosure of transcripts or reports containing information\nfurnished by a respondent when requested by that respondent (or his or\nher heir, successor, or authorized agent), see 13 U.S.C. \xc2\xa7 8(a); certain\n\xe2\x80\x9ctabulations and other statistical materials\xe2\x80\x9d that the Secretary may produce for private parties or government agencies, provided that the disclosed materials do not reveal \xe2\x80\x9cthe information reported by, or on behalf\nof, any particular respondent,\xe2\x80\x9d id. \xc2\xa7 8(b); certain address information that\nmay be disclosed to local government census liaisons under section 16 of\nthe Census Act, id. \xc2\xa7 16; certain business data and information on business enterprises that may be shared with the Bureau of Economic Analysis\nand the Bureau of Labor Statistics under sections 401 and 402 of the\nCensus Act, id. \xc2\xa7\xc2\xa7 401, 402; certain disclosures to the Census Monitoring\nBoard permitted by section 210 of the Departments of Commerce, Justice,\nand State, the Judiciary, and Related Agencies Appropriations Act, 1998,\n2\n\n\x0cCensus Confidentiality and the PATRIOT Act\n\nPub. L. No. 105-119, 111 Stat. 2471, 2487 (1997); and certain disclosures\nto the Department of Agriculture permitted by the Census of Agriculture\nAct of 1997, Pub. L. No. 105-113, \xc2\xa7\xc2\xa7 2(f), 4(a)(1), 111 Stat. 2274\xe2\x80\x9376,\nfor the purpose of facilitating the agriculture census. In addition, section\n9(b) of the Census Act exempts certain information relating to the census\nof governments from section 9(a)\xe2\x80\x99s confidentiality protections, see 13\nU.S.C. \xc2\xa7 9(b), and certain other provisions outside the Census Act expressly address the confidentiality of covered census information under\nsection 9. See, e.g., 42 U.S.C. \xc2\xa7 11608 (2006) (establishing procedures\nwith respect to information protected by section 9 for purposes of implementing an international convention); 42 U.S.C. \xc2\xa7 6274 (2006) (specifically permitting disclosure of certain information \xe2\x80\x9cwithout regard to\xe2\x80\x9d\nsection 9); 44 U.S.C. \xc2\xa7 2108(b) (2006) (regulating release of certain\nhistoric census records in the custody of the Archivist of the United\nStates).\nReinforcing the confidentiality protections of section 9, section 8(c) of\nthe Census Act provides that \xe2\x80\x9c[i]n no case shall information furnished\nunder this section\xe2\x80\x9d\xe2\x80\x94which, as noted, authorizes the Secretary to furnish\nstatistical tabulations of census data that \xe2\x80\x9cdo not disclose the information\nreported by, or on behalf of, any particular respondent,\xe2\x80\x9d as well as census\ntranscripts and reports when requested by the respondent (or the respondent\xe2\x80\x99s heir, successor, or authorized agent) \xe2\x80\x94\xe2\x80\x9cbe used to the detriment of\nany respondent or other person to whom such information relates, except\nin the prosecution of alleged violations of this title.\xe2\x80\x9d 13 U.S.C. \xc2\xa7 8(c); see\nalso 15 C.F.R. \xc2\xa7 80.5 (2009) (noting this statutory prohibition). Under\nsection 214 of the Census Act, violations of section 9 by any census\nemployee, staff member, or local liaison are subject to criminal punishment. See 13 U.S.C. \xc2\xa7 214.\nEnacted into law after the September 11, 2001 attacks, the PATRIOT\nAct made extensive changes to existing statutes governing investigations\nrelated to terrorism, intelligence, and national security. Although some\nPATRIOT Act provisions were subject to a statutory sunset, Congress\nreauthorized provisions of the original PATRIOT Act, with amendments, in the USA PATRIOT Improvement and Reauthorization Act of\n2005, Pub. L. No. 109-177, 120 Stat. 192 (\xe2\x80\x9cReauthorization Act\xe2\x80\x9d). The\nPATRIOT Act, as amended, authorized a number of new or modified\n3\n\n\x0c34 Op. O.L.C. 1 (2010)\n\nforms of surveillance, information-gathering, and information-sharing for\nfederal law enforcement and national security officers. 2\nYou identified for our review PATRIOT Act provisions establishing the following\nsurveillance and information-gathering powers for certain federal officers: authority to\nobtain so-called \xe2\x80\x9croving\xe2\x80\x9d wiretaps under foreign intelligence surveillance provisions, 50\nU.S.C. \xc2\xa7 1805(c)(2)(B) (2006) (containing language originating in PATRIOT Act \xc2\xa7 206);\nauthority to conduct surveillance of certain agents of foreign powers for longer periods\nthan previously authorized, 50 U.S.C.A. \xc2\xa7 1805(d) (West Supp. 2009) (containing language originating in PATRIOT Act \xc2\xa7 207); authority for certain warrant-based seizures of\nvoicemail messages, 18 U.S.C. \xc2\xa7\xc2\xa7 2510(14), 2703(a)\xe2\x80\x93(b) (including provisions originating in PATRIOT Act \xc2\xa7 209); authority to seek court orders for production of \xe2\x80\x9ctangible\nthings\xe2\x80\x9d relevant to certain terrorism and intelligence investigations, 50 U.S.C.A. \xc2\xa7 1861\n(West 2003 & Supp. 2009) (including provisions originating in PATRIOT Act \xc2\xa7 215);\nrevised standards for obtaining certain electronic surveillance warrants, 50 U.S.C.A.\n\xc2\xa7\xc2\xa7 1804(a)(6)(B), 1823(a)(6)(B) (West 2003 & Supp. 2009) (containing language originating in PATRIOT Act \xc2\xa7 218); and authority to seek court orders compelling production\nof certain educational records possessed by educational agencies and institutions for use\nin certain terrorism-related investigations and prosecutions, 20 U.S.C. \xc2\xa7 1232g(j) (2006)\n(originating in PATRIOT Act \xc2\xa7 507). You also identified one provision regarding information-sharing within the federal government, section 508, which authorized the Attorney\nGeneral or a designee above a specified rank to apply for an ex parte court order to obtain\ncertain confidential educational reports, records, and information possessed by the\nDepartment of Education for use in certain terrorism-related investigations and prosecutions. 20 U.S.C. \xc2\xa7 9573(e) (2006) (containing language originating in PATRIOT Act\n\xc2\xa7 508).\nWe have independently identified and reviewed several other information-sharing provisions of the PATRIOT Act (as amended), including provisions permitting disclosure\nwithin the federal government of certain intelligence-related grand jury matters, Fed. R.\nCrim. P. 6(e)(3)(D) (containing language originating in PATRIOT Act \xc2\xa7 203(a)); provisions permitting sharing within the federal government of certain intelligence-related\ninformation contained in certain electronic intercepts, 18 U.S.C. \xc2\xa7 2517(6) (2006) (originating in PATRIOT Act \xc2\xa7 203(b)); provisions permitting sharing within the federal\ngovernment of certain intelligence-related information \xe2\x80\x9cobtained as part of a criminal\ninvestigation,\xe2\x80\x9d 50 U.S.C.A. \xc2\xa7 403-5d (West 2003 & Supp. 2009) (containing language\noriginating in PATRIOT Act \xc2\xa7 203(d)); provisions authorizing the Secretary of the\nTreasury to share certain financial records and reports with other agencies, 12 U.S.C.\n\xc2\xa7\xc2\xa7 3412(a), 3420(a)(2) (2006), 31 U.S.C. \xc2\xa7 5319 (2006) (containing provisions originating in PATRIOT Act \xc2\xa7 358); provisions requiring an entity in the Treasury Department to\nanalyze, disseminate, and provide access to certain information relating to financial\ncrimes, 31 U.S.C. \xc2\xa7 310 (2006) (containing provisions originating in PATRIOT Act\n\xc2\xa7 361); provisions requiring the Attorney General and FBI Director to provide the State\nDepartment and Immigration and Naturalization Service with access, for visa-related\npurposes, to criminal history record information in certain files, 8 U.S.C. \xc2\xa7 1105(b)\n(2006) (originating in PATRIOT Act \xc2\xa7 403(a)); provisions encouraging dissemination of\n2\n\n4\n\n\x0cCensus Confidentiality and the PATRIOT Act\n\nThe PATRIOT Act includes certain express exceptions to otherwise\napplicable confidentiality provisions. Section 508 of the PATRIOT Act\nprovided for authorized applications by certain high-ranking Justice\nDepartment officials for an ex parte court order requiring production of\ncertain educational records\xe2\x80\x94possessed by the Department of Education\nand otherwise subject to statutory confidentiality requirements \xe2\x80\x94for use\nin certain terrorism-related investigations and prosecutions. PATRIOT\nAct \xc2\xa7 508 (repealed by Pub. L. No. 107-279, \xc2\xa7\xc2\xa7 401(a)(6), 403(1), 116\nStat. 1940, 1983, 1985 (2002)); 20 U.S.C. \xc2\xa7 9573(e) (2006) (recodifying similar authorization). This provision authorized court orders \xe2\x80\x9crequiring\xe2\x80\x9d the Secretary of Education to permit the Attorney General or his\ndesignee to \xe2\x80\x9ccollect\xe2\x80\x9d and \xe2\x80\x9cretain, disseminate, and use\xe2\x80\x9d these records for\nofficial purposes related to covered investigations and prosecutions,\n\xe2\x80\x9c[n]otwithstanding\xe2\x80\x9d statutory disclosure prohibitions that would otherwise apply to those specific records. PATRIOT Act \xc2\xa7 508; 20 U.S.C.\n\xc2\xa7 9573(e). In addition, among numerous other changes, the PATRIOT Act\namended applicable laws to permit wider sharing of certain evidence\ncollected by grand juries, see Fed. R. Crim. P. 6(e)(3)(D), and broader\ndisclosure within the government, \xe2\x80\x9c[n]otwithstanding any other provision\nof law,\xe2\x80\x9d of certain intelligence-related information obtained as part of a\ncriminal investigation. 50 U.S.C.A. \xc2\xa7 403-5d (West 2003 & Supp. 2009);\nsee also supra note 2. None of the PATRIOT Act\xe2\x80\x99s provisions expressly\nreferences the Census Act or its confidentiality protections.\nYou have asked whether any of the information-gathering or information-sharing provisions of the PATRIOT Act, as amended, may override the confidentiality requirements of the Census Act so as to require the\nCommerce Secretary to disclose otherwise covered census information\nto federal law enforcement or national security officials. Our understanding from you is that you are not asking us to address what effect, if any,\nthe Census Act confidentiality provisions have on census-related inforinformation collected under certain statutory provisions \xe2\x80\x9cso it may be used efficiently and\neffectively for national intelligence purposes,\xe2\x80\x9d 50 U.S.C. \xc2\xa7 403-1(f)(6) (2006) (containing\nlanguage originating in PATRIOT Act \xc2\xa7 901); and provisions generally requiring \xe2\x80\x9cexpeditious[]\xe2\x80\x9d disclosure to intelligence officials, pursuant to established guidelines, of foreign\nintelligence acquired by federal law enforcement officers \xe2\x80\x9cin the course of a criminal\ninvestigation,\xe2\x80\x9d 50 U.S.C. \xc2\xa7 403-5b (2006) (containing language originating in PATRIOT\nAct \xc2\xa7 905).\n\n5\n\n\x0c34 Op. O.L.C. 1 (2010)\n\nmation or communications that could possibly be obtained through surveillance, interception, or other means apart from a direct request to the\nCommerce Department. Nor are you asking us to address the effect, if\nany, of PATRIOT Act provisions on the confidentiality under the Census\nAct of census information possessed not by the Commerce Department,\nbut by third parties, such as those furnishing census information. We have\nreviewed the PATRIOT Act provisions that you have identified, and we\nhave also conducted an independent review of the statute. With one exception, we conclude that none of the provisions appears on its face to\nrequire the Secretary of Commerce to disclose census information otherwise subject to the confidentiality protection mandated by the Census Act.\nWe therefore do not discuss the entirety of the PATRIOT Act in detail\nand instead turn to the one provision that, in our judgment, warrants\nfurther analysis.\nIn section 215 of the PATRIOT Act, Congress amended provisions\nof the Foreign Intelligence Surveillance Act (\xe2\x80\x9cFISA\xe2\x80\x9d), 50 U.S.C.A.\n\xc2\xa7\xc2\xa7 1801\xe2\x80\x931885c (West 2003 & Supp. 2009), that previously authorized\ncourt orders to obtain records from specified types of businesses, see 50\nU.S.C. \xc2\xa7 1862 (2000), to permit orders for production of \xe2\x80\x9cany tangible\nthings\xe2\x80\x9d for use in certain terrorism and intelligence investigations, see\n50 U.S.C.A. \xc2\xa7 1861(a)(1) (West 2003 & Supp. 2009). As amended by the\nReauthorization Act and two other statutes, see Reauthorization Act\n\xc2\xa7 106; USA PATRIOT Act Additional Reauthorizing Amendments Act of\n2006, Pub. L. No. 109-178, \xc2\xa7\xc2\xa7 3\xe2\x80\x934, 120 Stat. 278, 278\xe2\x80\x9381; Intelligence\nAuthorization Act for Fiscal Year 2002, Pub. L. No. 107-108, \xc2\xa7 314(a)(6),\n115 Stat. 1394, 1402, section 215 now provides:\nSubject to paragraph (3) [which requires especially high-level approval within the FBI for certain categories of records], the Director\nof the Federal Bureau of Investigation or a designee of the Director\n(whose rank shall be no lower than Assistant Special Agent in\nCharge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to\nprotect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is\n6\n\n\x0cCensus Confidentiality and the PATRIOT Act\n\nnot conducted solely upon the basis of activities protected by the\nfirst amendment to the Constitution.\n50 U.S.C.A. \xc2\xa7 1861(a)(1). 3\nII.\nSection 215, by its plain terms, provides the FBI with broad authority\nto obtain \xe2\x80\x9ctangible things (including books, records, papers, documents,\nand other items)\xe2\x80\x9d for use in certain terrorism and intelligence investigations. 4 And, as a general matter, the PATRIOT Act and its legislative\nhistory suggest an intention on the part of Congress to provide the federal\ngovernment with substantial new powers to combat terrorism and protect\nnational security. See, e.g., H.R. Rep. No. 109-174, at 7 (2005) (conference report on Reauthorization Act describing PATRIOT Act as intended\n\xe2\x80\x9c[t]o better equip Federal law enforcement and the intelligence community with the resources necessary to confront . . . modern threats\xe2\x80\x9d); H.R.\nRep. No. 107-236, pt. 1, at 41 (2001) (committee report on predecessor\nbill to the PATRIOT Act describing legislation as \xe2\x80\x9cprovid[ing] enhanced\ninvestigative tools and improv[ing] information sharing for the law enforcement and intelligence communities to combat terrorism and terroristrelated crimes\xe2\x80\x9d).\nThere is, however, a long history of congressional enactments providing broad confidentiality protection to census information. The Supreme\n\nThe Reauthorization Act provided that the FISA provisions amended by section 215\nwould revert to their pre-PATRIOT Act form on December 31, 2009, but would remain\nin effect \xe2\x80\x9c[w]ith respect to any particular foreign intelligence investigation that began\nbefore the date on which [these] provisions . . . cease to have effect, or with respect to any\nparticular offense or potential offense that began or occurred before the date on which\nsuch provisions cease to have effect.\xe2\x80\x9d See Reauthorization Act \xc2\xa7 102(b). Congress\nrecently postponed the December 31, 2009 sunset in the Reauthorization Act until February 28, 2010. See Department of Defense Appropriations Act, 2010, Pub. L. No. 111118, \xc2\xa7 1004(a), 123 Stat. 3409, 3470. Legislation pending in Congress would further\nreauthorize section 215 with certain amendments. See, e.g., S. 1692, 111th Cong. (as\nreported by the S. Comm. on the Judiciary, Oct. 13, 2009).\n4 For purposes of this opinion, we assume without deciding that, even though section\n215 is not expressly cast as an intragovernmental information-sharing provision, section\n215 orders may require \xe2\x80\x9cproduction\xe2\x80\x9d of \xe2\x80\x9ctangible things\xe2\x80\x9d not only from parties outside the\nfederal government, but also from agencies within it.\n3\n\n7\n\n\x0c34 Op. O.L.C. 1 (2010)\n\nCourt has construed sections 8 and 9 of the Census Act to \xe2\x80\x9cembody explicit congressional intent to preclude all disclosure of raw census data\nreported by or on behalf of individuals,\xe2\x80\x9d Baldrige, 455 U.S. at 361, and\nlower courts have likewise deemed it \xe2\x80\x9c\xe2\x80\x98abundantly clear that Congress\nintended both a rigid immunity from publication or discovery and a liberal\nconstruction of that immunity that would assure confidentiality,\xe2\x80\x99\xe2\x80\x9d Carey\nv. Klutznick, 653 F.2d 732, 739 (2d Cir. 1981) (quoting McNichols v.\nKlutznick, 644 F.2d 844, 845 (10th Cir. 1981)); see also United States v.\nBethlehem Steel Corp., 21 F.R.D. 568, 569\xe2\x80\x9370, 572 (S.D.N.Y. 1958)\n(holding that \xe2\x80\x9cthe purpose to protect the privacy of the information furnished to the Government is so clear and the public policy underlying\nthe purpose so compelling that absent a clear Congressional grant, there\nis no basis upon which to direct the Department of Commerce to make\navailable to the Department of Justice or to any person the reports here\nsought\xe2\x80\x9d). Moreover, Congress, far from disavowing this judicial construction, has amended the Census Act several times\xe2\x80\x94including through\nthe addition of further express exceptions to section 9\xe2\x80\x94without limiting\nor repealing the courts\xe2\x80\x99 expansive interpretation of the Act\xe2\x80\x99s prohibition\n(absent a clear exception) on disclosure of covered census information\npossessed by the Commerce Department. 5\nSee, e.g., Departments of Commerce, Justice, and State, the Judiciary, and Related\nAgencies Appropriations Act, 1998, Pub. L. No. 105-119, 111 Stat. 2471, 2487 (1997);\nCensus of Agriculture Act of 1997, Pub. L. No. 105-113, \xc2\xa7\xc2\xa7 2(f), 4(a)(1), 111 Stat. 2274\xe2\x80\x93\n76; Census Address List Improvement Act of 1994, Pub. L. No. 103-430, \xc2\xa7 2(b), 108 Stat.\n4393, 4394; Foreign Direct Investment and International Financial Data Improvements\nAct of 1990, Pub. L. No. 101-533, \xc2\xa7 5(b)(2), 104 Stat. 2344, 2348; Pub. L. No. 87-813, 76\nStat. 922 (1962). Indeed, the legislative history of census-related enactments includes\nrepeated acknowledgments of a strong statutory policy of census confidentiality. See, e.g.,\nS. Rep. No. 105-141, at 4 (1997) (describing express exception added to section 9 as\n\xe2\x80\x9cgrant[ing] the Secretary of Commerce the authority to provide information [covered by\nthat section] to the Secretary of Agriculture\xe2\x80\x9d); H.R. Rep. No. 105-296, at 4 (1997) (same);\nS. Rep. No. 93-1183, at 70 (1974) (committee report on federal privacy legislation\ndescribing census statutes as \xe2\x80\x9cprohibit[ing] publication of data gathered by the [Census]\nBureau in identifiable form and strictly govern[ing] confidentiality\xe2\x80\x9d); H.R. Rep. No. 931416, at 12 (1974) (committee report on federal privacy legislation describing the \xe2\x80\x9c[l]aws\nrelating to the Bureau of the Census\xe2\x80\x9d as \xe2\x80\x9cvery strict, limiting access to such records only\nto Census employees\xe2\x80\x9d); S. Rep. No. 87-2218, at 1 (1962) (noting that \xe2\x80\x9c[o]riginal reports\nfiled with the Bureau of the Census are confidential\xe2\x80\x9d under census statutes); H.R. Rep.\nNo. 60-960, at 23 (1908) (describing predecessor to section 9 as intended to provide \xe2\x80\x9ca\nmore effective guaranty than heretofore of the confidential character of the returns as\n5\n\n8\n\n\x0cCensus Confidentiality and the PATRIOT Act\n\nThe question, therefore, is whether the broad but general language in\nsection 215 should be construed to override the well-established confidentiality protections set forth in the Census Act, even though section 215\ncontains no express and specific statement indicating an intention to do\nso. Of course, strictly speaking, the plain text of section 215 could be read\nto conflict with the confidentiality provision of the Census Act, as the\nphrase \xe2\x80\x9cany tangible things\xe2\x80\x9d could be construed to encompass census\nrecords. Nonetheless, we think section 215 is better read not to have this\nsignificant consequence, and prior executive branch precedent addressing\nwhen and whether a subsequent statute should be construed to cut back on\nthe confidentiality of census records supports that conclusion.\nIndeed, for more than sixty years, the Executive Branch has consistently employed a strong presumption that statutes affecting access to information in general should not be construed to overcome the specific protections afforded to covered census information by the Census Act. In a\n1944 Attorney General opinion, for example, we concluded that a statute\ngenerally requiring transfer of records to the National Archives did not\nremove statutory confidentiality protections applicable to census records.\nConfidential Treatment of Census Records, 40 Op. Att\xe2\x80\x99y Gen. 326, 328.\nThe statute at issue there provided that \xe2\x80\x9c\xe2\x80\x98[a]ll archives or records belonging to the Government of the United States (legislative, executive, judicial, and other) shall be under the charge and superintendence of the\nArchivist to th[e] extent\xe2\x80\x9d of, among other things, permitting the Archivist\n\xe2\x80\x9cto make regulations for the arrangement, custody, use, and withdrawal of\nmaterial deposited in the National Archives Building.\xe2\x80\x99\xe2\x80\x9d Id. at 327 (quoting Act of June 19, 1934, ch. 668, \xc2\xa7 3, 48 Stat. 1122, 1122). The statute\nfurther provided that \xe2\x80\x9c\xe2\x80\x98[a]ll Acts or parts of Acts relating to the charge\nand superintendency, custody, preservation, and disposition of official\npapers and documents of executive departments and other governmental\nneeded in many cases and desirable in all to enlist that public confidence without which\ncensus inquiries must fail\xe2\x80\x9d); see also Proclamation No. 1898 (Nov. 22, 1929) (Pres.\nHoover) (\xe2\x80\x9cNo person can be harmed in any way by furnishing the information required\n[by the census]. The Census has nothing to do . . . with the enforcement of any national,\nstate, or local law or ordinance.\xe2\x80\x9d); see generally Baldrige, 455 U.S. at 356\xe2\x80\x9358 (reviewing\nhistory of census statutes and concluding that the history \xe2\x80\x9creveals a congressional intent\nto protect the confidentiality of census information by prohibiting disclosure of raw\ncensus data reported by or on behalf of individuals\xe2\x80\x9d).\n\n9\n\n\x0c34 Op. O.L.C. 1 (2010)\n\nagencies inconsistent with the provisions of this Act are hereby repealed.\xe2\x80\x99\xe2\x80\x9d Id. (quoting Act of June 19, 1934, ch. 668, \xc2\xa7 11, 48 Stat. 1122,\n1124). The Acting Attorney General concluded that census records could\nbe transferred to the custody of the Archivist under these provisions.\nHowever, even in the face of language expressly repealing \xe2\x80\x9c[a]ll\xe2\x80\x9d inconsistent federal statutes, the Acting Attorney General determined that the\nArchivist lacked the discretion\xe2\x80\x94otherwise provided as part of the authorizing statute creating the Office of the Archivist\xe2\x80\x94to allow for the dissemination and use of the transferred census records. Census records transferred to the custody of the Archivist remained subject to confidentiality\nstatutes specific to census information, as \xe2\x80\x9c[i]t would require very clear\nlanguage in a general statute relating to the custody of records to justify\nattributing to the Congress an intention to depart from\xe2\x80\x9d the policy of\ncensus confidentiality. Id. at 328. 6\n6 In 1950, Congress amended the statutes governing the National Archives of the United States to provide, among other things, that\n\n[w]henever any records the use of which is subject to statutory limitations and restrictions are . . . transferred [to the National Archives], permissive and restrictive\nstatutory provisions with respect to the examination and use of such records applicable to the head of the agency from which the records were transferred or to employees\nof that agency shall thereafter likewise be applicable to the Adminstrator [of General\nServices, who oversaw the National Archives under the statute], the Archivist, and to\nthe employees of the General Services Administration.\nFederal Records Act of 1950, Pub. L. No. 81-754, sec. 6(d), \xc2\xa7 507(b), 64 Stat. 578, 583,\n587; see also Pub. L. No. 90-620, 82 Stat. 1238, 1288 (1968) (codifying similar provision\nat 44 U.S.C. \xc2\xa7 2104). The amended statute provided, however, that such statutory restrictions would remain in effect for fifty years unless the Administrator extended the\nrestrictions for a further period. See Federal Records Act \xc2\xa7 507(b); see also Pub. L. No.\n90-620, 82 Stat. at 1288 (codifying similar provision at 44 U.S.C. \xc2\xa7 2104). In 1973, this\nOffice advised that the \xe2\x80\x9cplain language\xe2\x80\x9d and \xe2\x80\x9chistory\xe2\x80\x9d of these provisions expressly\ngoverning agency records \xe2\x80\x9cconstitute[d]\xe2\x80\x9d the \xe2\x80\x9cvery clear language\xe2\x80\x9d required to supersede\ncensus confidentiality under the 1944 Attorney General opinion, and thus that the Archivist had authority under the statute to disclose census records after fifty years notwithstanding a 1952 agreement between the Census Bureau and the Archivist that barred\ndisclosure of census records for seventy-two years. See Memorandum for William G.\nCasselman II, General Counsel, General Services Administration, from Robert G. Dixon,\nJr., Assistant Attorney General, Office of Legal Counsel, at 7, 8 (June 14, 1973).\nIn further amendments to these statutes in 1978, Congress generally shortened to thirty\nyears the period during which statutorily protected documents must remain confidential,\nbut also provided specifically that \xe2\x80\x9cany release\xe2\x80\x9d of \xe2\x80\x9ccensus and survey records of the\n\n10\n\n\x0cCensus Confidentiality and the PATRIOT Act\n\nThe expectation that Congress would not cut back on the confidentiality\nof census records without doing so in a very clear manner has governed\nexecutive branch interpretation in subsequent decades. For example, the\nActing Attorney General concluded in 1962 that section 9\xe2\x80\x99s confidentiality protections applied to certain surveys then authorized by the Census\nAct but exempt from Census Act provisions penalizing false responses\nand failures to respond (and thus considered \xe2\x80\x9cvoluntary\xe2\x80\x9d). Confidentiality\nof \xe2\x80\x9cVoluntary\xe2\x80\x9d Reports Under the Census Laws, 42 Op. Att\xe2\x80\x99y Gen. 151,\n151\xe2\x80\x9352. Although pre-1954 census statutes had expressly provided that\nsuch surveys were subject to statutory confidentiality provisions and the\n1954 census statute (which included section 9(a) in substantially similar\nform to the Census Act today) included no such express cross-reference,\nthe Acting Attorney General observed that \xe2\x80\x9ca change in the law so farreaching as to deprive voluntary reports of their confidential nature certainly would have been pointed out and explained in\xe2\x80\x9d the legislative\nhistory. Id. at 155. Indeed, the Acting Attorney General found \xe2\x80\x9cno\nuncertainty\xe2\x80\x9d in the language of section 9. Id. Noting that section 9 included other express exceptions but otherwise applied to all information\nfurnished \xe2\x80\x9cunder this title,\xe2\x80\x9d the Acting Attorney General concluded that\n\xe2\x80\x9c[i]f Congress had sought to exempt the replies to voluntary surveys from\nthe operation of 13 U.S.C. 9(a), it certainly would have done so expressly.\xe2\x80\x9d Id.\nFinally, in a more recent opinion, this Office determined that a statute\nplainly intended to enhance the ability of government officials to share\nimmigration status information with immigration authorities did not\nBureau of the Census containing data identifying individuals enumerated in population\ncensuses\xe2\x80\x9d would be governed by the 1952 agreement and any amendments to that agreement \xe2\x80\x9cnow or hereafter entered into between the Director of the Bureau of the Census and\nthe Archivist of the United States.\xe2\x80\x9d Pub. L. No. 95-416, 92 Stat. 915 (1978) (amending 44\nU.S.C. \xc2\xa7 2104); see also 44 U.S.C. \xc2\xa7 2108 (2006) (codifying similar provisions). Consistent with Congress\xe2\x80\x99s longstanding policy of census confidentiality, the House Committee on Government Operations explained the need for a specific protection for census\nrecords by noting that \xe2\x80\x9c[t]he committee believes that the right of American citizens to\nassert a right of privacy over information provided in census questionnaires far outweighs\nthe general public\xe2\x80\x99s right to have access to that information during the lifetime of the\nindividual citizen.\xe2\x80\x9d H.R. Rep. No. 95-1522, at 3 (1978); see also S. Rep. No. 95-710, at 2\n(1978) (explaining that this provision \xe2\x80\x9caddresses the issue of premature release of census\nrecords information\xe2\x80\x9d).\n\n11\n\n\x0c34 Op. O.L.C. 1 (2010)\n\noverride the Census Act\xe2\x80\x99s protections for covered census information\npossessed by the Commerce Department. IIRIRA Opinion. The statute at\nissue prohibited any federal, state, or local government entity or official\nfrom restricting any government entity or official from \xe2\x80\x9csending to, or\nreceiving from, the Immigration and Naturalization Service information\nregarding the citizenship or immigration status, lawful or unlawful, of any\nindividual.\xe2\x80\x9d Id. at *4 (quoting 8 U.S.C.A. \xc2\xa7 1373(a) (West 1999)). Although the opinion rested primarily on a reading of the statute that construed the restrictions on \xe2\x80\x9cgovernment entities\xe2\x80\x9d as not encompassing\nCongress\xe2\x80\x99s enactment of census confidentiality provisions, see id. at *6,\nthis Office, in support of this conclusion, reiterated that \xe2\x80\x9c[i]n light of the\nfederal government\xe2\x80\x99s longstanding commitment to confidentiality in this\narea, there is every reason to expect that Congress would have spoken\nwith particular clarity if it had intended to cut back on the scope of 13\nU.S.C. \xc2\xa7 9(a) in enacting\xe2\x80\x9d a new statute. Id. at *11. We thus concluded\nthat \xe2\x80\x9cthe absence of a reference in either statute to the other suggests that\nthe text of 13 U.S.C. \xc2\xa7 9(a) should be construed to mean just what it says,\nand that [the immigration statute] should be understood to have left in\nplace the confidentiality requirement that 13 U.S.C. \xc2\xa7 9(a) establishes.\xe2\x80\x9d\nId. at 8\xe2\x80\x939 (footnote omitted).\nIn light of this consistent precedent, we would construe section 215 to\noverride the preexisting Census Act protections for covered census information possessed by the Commerce Department only if the evidence of\ncongressional intention compelled such a conclusion. Here, however, the\nevidence does not compel such a conclusion.\nSection 215 makes no reference to the census or the Census Act. And\nalthough Congress has amended section 9 of the Census Act on several\noccasions to establish exceptions, it has not added an express exception\nfor section 215 orders in the wake of that provision\xe2\x80\x99s enactment. Nor is\nthere language in section 215 like that contained in the statute addressed\nin the 1944 Attorney General opinion concerning the Archivist\xe2\x80\x99s role as\ncustodian of governmental records. There, the statute expressly stated that\nthe authority of the Archivist to take custody of records extended to all\nrecords \xe2\x80\x9cbelonging to the Government of the United States (legislative,\nexecutive, judicial, and other)\xe2\x80\x9d and for purposes of carrying out that\nauthority, \xe2\x80\x9call\xe2\x80\x9d inconsistent federal statutes were repealed. Confidential\nTreatment of Census Records, 40 Op. Att\xe2\x80\x99y Gen. at 327. By contrast,\n12\n\n\x0cCensus Confidentiality and the PATRIOT Act\n\nsection 215 not only does not expressly encompass \xe2\x80\x9call\xe2\x80\x9d governmental\nrecords (it simply permits orders requiring production of \xe2\x80\x9ctangible things\xe2\x80\x9d\nin general), it also includes no express repeal of any federal statute prohibiting disclosure of such information. Similarly, section 215 contains no\nlanguage like that identified in this Office\xe2\x80\x99s 1999 opinion on the relationship between the immigration disclosure provision and the Census Act\xe2\x80\x99s\nconfidentiality provisions, in which we noted the absence of express\nlanguage such as \xe2\x80\x9cnotwithstanding any provision of law . . . [this provision provides for the disclosure of information] without restriction\xe2\x80\x9d that\ncould indicate an intention to override the longstanding statutory protections for census information possessed by the Department of Commerce.\nIIRIRA Opinion at *5.\nThe PATRIOT Act does include a severability clause requiring that\nPATRIOT Act provisions be given \xe2\x80\x9cmaximum effect\xe2\x80\x9d if deemed invalid\nor unenforceable in part or as applied, but this provision does not indicate\ncongressional \xe2\x80\x9cintent that [section 215] be construed broadly to give it\nmaximum effect,\xe2\x80\x9d as the National Security Division has suggested to us in\nits views. The full text of this provision states:\nAny provision of this Act held to be invalid or unenforceable by its\nterms, or as applied to any person or circumstance, shall be construed so as to give it the maximum effect permitted by law, unless\nsuch holding shall be one of utter invalidity or unenforceability, in\nwhich event such provision shall be deemed severable from this Act\nand shall not affect the remainder thereof or the application of such\nprovision to other persons not similarly situated or to other, dissimilar circumstances.\nPATRIOT Act \xc2\xa7 2 (reprinted at 18 U.S.C. \xc2\xa7 1 note (2006)). By its plain\nterms, this provision applies only when PATRIOT Act provisions are\n\xe2\x80\x9cheld to be invalid or unenforceable\xe2\x80\x9d in whole or in part (emphasis added); it does not otherwise establish any special rule of construction for the\nPATRIOT Act or manifest an intention to repeal, absent judicial invalidation, any provision of prior law. See also, e.g., 147 Cong. Rec. 20,685\n(2001) (section-by-section analysis of PATRIOT Act conference report\nincluded in the record by Sen. Leahy describing this provision as\n\xe2\x80\x9cprovid[ing] that any portion of this Act found to be invalid or unenforceable by its terms, or as applied to any person or circumstance, shall be\n13\n\n\x0c34 Op. O.L.C. 1 (2010)\n\nconstrued to give it the maximum effect permitted by law and that any\nportion found invalid or unenforceable in its entirety shall be severable\nfrom the rest of the Act\xe2\x80\x9d).\nGiven the established interpretive approach to repeal of the Census\nAct\xe2\x80\x99s confidentiality provisions, the absence of any express repeal language in section 215 is significant, especially because other sections of\nthe PATRIOT Act expressly revise statutory restrictions on certain other\ncategories of confidential information.\nSection 508 provides a striking comparison. Much like section 215,\nthis provision authorized applications by certain high-ranking Justice\nDepartment officials for an ex parte court order requiring production of\ncertain information (specifically, certain educational records possessed\nby the Department of Education) for use in certain terrorism-related\ninvestigations. PATRIOT Act \xc2\xa7 508 (repealed by Pub. L. No. 107-279,\n\xc2\xa7\xc2\xa7 401(a)(6), 403(1), 116 Stat. 1940, 1983, 1985 (2002)); 20 U.S.C.\n\xc2\xa7 9573(e) (recodifying similar authorization). But in contrast to section\n215, which simply authorizes orders for \xe2\x80\x9cproduction\xe2\x80\x9d of tangible things\nin general, section 508 expressly established a mechanism for information-sharing between federal agencies, and expressly repealed applicable confidentiality statutes, using precisely the sort of language\xe2\x80\x94\n\xe2\x80\x9cnotwithstanding [other specified provisions],\xe2\x80\x9d PATRIOT Act \xc2\xa7 508;\n20 U.S.C. \xc2\xa7 9573(e)\xe2\x80\x94that we suggested in our IIRIRA opinion would\nindicate congressional intent to repeal confidentiality protections of the\nCensus Act, IIRIRA Opinion at *5; see PATRIOT Act \xc2\xa7 508; 20 U.S.C.\n\xc2\xa7 9573(e). Moreover, at least one other PATRIOT Act provision likewise applies \xe2\x80\x9c[n]otwithstanding\xe2\x80\x9d other specified provisions of law. See\nPATRIOT Act \xc2\xa7 507 (codified at 20 U.S.C. \xc2\xa7 1232g(j) (2006)) (authorizing court orders to obtain certain records from educational institutions\nor agencies \xe2\x80\x9c[n]otwithstanding subsections (a) through (i) of this section\nor any provision of State law\xe2\x80\x9d). And, as noted, the PATRIOT Act explicitly modified certain other confidentiality protections, such as grand\njury secrecy, to permit wider sharing of certain categories of sensitive\ninformation within the federal government. See, e.g., PATRIOT Act\n\xc2\xa7 203(a)(1) (similar provision now codified at Fed. R. Crim. P. 6(e))\n(permitting disclosure of certain intelligence-related grand jury matters);\nid. \xc2\xa7 203(d) (including language codified at 50 U.S.C.A. \xc2\xa7 403-5d (West\n2003 & Supp. 2009)) (permitting sharing of certain information obtained\n14\n\n\x0cCensus Confidentiality and the PATRIOT Act\n\nas part of a criminal investigation). Section 508 and such other provisions explicitly modifying restrictions on information-sharing or disclosure show at the very least that Congress was aware of specific federal\nconfidentiality provisions and could have drafted explicit authority to\novercome Census Act prohibitions on information-sharing had it wished\nto do so. 7\nOur conclusion is further reinforced by prior Office precedent construing generally applicable information-sharing statutes. In these instances,\nwe applied a similarly strong presumption of confidentiality in concluding\nthat such measures did not override more specific confidentiality protections, even though as a matter of plain text the terms of the purportedly\noverriding statute could have been construed to be inconsistent with the\nconfidentiality provisions at issue, just as is arguably the case here.\nIn GAO Access to Trade Secret Information, 12 Op. O.L.C. 181, 182\n(1988) (\xe2\x80\x9cGAO Access\xe2\x80\x9d), for example, we considered whether the Food\nand Drug Administration (\xe2\x80\x9cFDA\xe2\x80\x9d) could provide trade secret information\nto the Comptroller General. The potentially overriding statute required\n\xe2\x80\x9c[e]ach agency\xe2\x80\x9d to \xe2\x80\x9cgive the Comptroller General information the Comptroller requires about the duties, powers, activities, organization, and\nfinancial transactions of the agency,\xe2\x80\x9d id. (quoting 31 U.S.C. \xc2\xa7 716(a)\n(1982)). A separate statute, however, barred the FDA from \xe2\x80\x9crevealing,\nother than to the Secretary [of Health and Human Services] or officers or\nemployees of [the Department of Health and Human Services], or to the\ncourts when relevant in any judicial proceeding under [other provisions of\nthe same statute], any information acquired under [specified sections of\nthat statute] concerning any method or process which as a trade secret is\nentitled to protection.\xe2\x80\x9d Id. at 181 (quoting 21 U.S.C. \xc2\xa7 331(j) (1982)). At\nthe outset, we observed that the FDA trade secrets statute was \xe2\x80\x9cclear on\nits face\xe2\x80\x9d and \xe2\x80\x9cexpressly provides that trade secret information may not\nbe disclosed outside [the Department of Health and Human Services] with\none exception: such information may be disclosed to a court in a judicial\nproceeding under the [statute].\xe2\x80\x9d Id. We then observed that a prior Attorney General opinion concluded, based in part on longstanding Executive\n7 We do not consider here whether and to what extent section 215 orders may also\nreach educational records (whether or not subject to production under section 508) or any\nother confidential information not protected by the Census Act.\n\n15\n\n\x0c34 Op. O.L.C. 1 (2010)\n\nBranch interpretation, that the FDA trade secrets statute did not allow\nfor an implied exception for disclosure of covered information to Congress. Id. at 181\xe2\x80\x9382 (discussing Federal Food, Drug & Cosmetic Act \xe2\x80\x94\nProhibition on Disclosure of Trade Secret Information to a Congressional Committee, 43 Op. Att\xe2\x80\x99y Gen. 116 (1978)). Accordingly, we concluded that the statute generally requiring disclosure of information to the\nComptroller General did not supersede the statute specifically protecting\nthe confidentiality of trade secrets. Id. at 182. \xe2\x80\x9cSince [the trade secrets\nstatute] is a specific statute directly addressing one executive branch\nagency\xe2\x80\x99s handling of trade secret information, while [the Comptroller\nGeneral statute] is a general statute addressed to all kinds of information\nin possession of the executive branch, [the trade secrets statute] controls\nin the absence of congressional intent to the contrary.\xe2\x80\x9d Id. at 182\xe2\x80\x9383.\nSimilarly, in Disclosure of Confidential Business Records Obtained\nUnder the National Traffic and Motor Vehicle Safety Act, 4B Op. O.L.C.\n735 (1980) (\xe2\x80\x9cBusiness Records\xe2\x80\x9d), we considered whether provisions in\nthe Federal Reports Act, 44 U.S.C. \xc2\xa7 3508 (1976), dealing with \xe2\x80\x9cthe\ngeneral matter of the intragovernmental exchange of information,\xe2\x80\x9d 4B\nOp. O.L.C. at 736, were applicable to confidential information and trade\nsecrets protected by the National Traffic and Motor Vehicle Safety Act\n(\xe2\x80\x9cSafety Act\xe2\x80\x9d), 15 U.S.C. 1401 (1976). The Safety Act subjected the\nmandatory reporting of certain safety-related information to confidentiality guarantees by providing that officers and employees of the safety\nagency could not \xe2\x80\x9cpublish[], divulge[], disclose[], or make[] known\xe2\x80\x9d such\ninformation \xe2\x80\x9cin any manner or to any extent not authorized by law.\xe2\x80\x9d 4B\nOp. O.L.C. at 735\xe2\x80\x9336 & nn.1\xe2\x80\x932. In concluding that the general provisions of the Federal Reports Act did not override the specific protections of the Safety Act, id. at 738, we analogized the Safety Act reports\nto census records, observing that confidentiality served the purposes of\nthe statute because Safety Act respondents, like census respondents, may\n\xe2\x80\x9cfear, possibly even more [than disclosure to the public or competitors],\nthe disclosure of [reported] information to regulatory or law-enforcing\nagencies,\xe2\x80\x9d id. at 737. Thus, we observed, it \xe2\x80\x9cmay be anticipated that firms\nwill be less willing to submit correct and complete information under the\nSafety Act if they must expect that this information will be shared with\n[federal regulatory] agencies.\xe2\x80\x9d Id. at 737\xe2\x80\x9338.\n16\n\n\x0cCensus Confidentiality and the PATRIOT Act\n\nMuch like the trade secrets statute addressed in our GAO Access opinion, section 9 of the Census Act \xe2\x80\x9cexpressly\xe2\x80\x9d protects covered census\ninformation from disclosure and has long been understood to bar the\ndissemination by the Commerce Department of such information outside\nthe Commerce Department except when authorized by a clear statutory\nexception. 12 Op. O.L.C. at 181. Moreover, much as the trade secrets\nstatute at issue in our GAO Access opinion specifically addressed \xe2\x80\x9cone\nexecutive branch agency\xe2\x80\x99s handling of\xe2\x80\x9d a specific category of information, while the Comptroller General statute broadly covered \xe2\x80\x9call kinds\nof information in possession of the executive branch\xe2\x80\x9d that would be useful\nfor particular investigations, id. at 182\xe2\x80\x9383, so, too, here the Census Act\xe2\x80\x99s\nprotections are specific to a very narrow subset of records\xe2\x80\x94covered\ncensus information\xe2\x80\x94relative to the broad category of \xe2\x80\x9ctangible things\xe2\x80\x9d\ncovered by section 215. Likewise, the compliance concerns our Business\nRecords opinion relied upon in concluding that disclosure \xe2\x80\x9cwould be\ncontrary to the statutory intent and contrary to the purposes [the statute]\nwas designed to achieve\xe2\x80\x9d seem equally applicable\xe2\x80\x94as the Business Records opinion itself recognized\xe2\x80\x94to census information protected by the\nCensus Act. 4B Op. O.L.C. at 738.\nIn concluding that section 215 does not override the relevant census\nprovisions, we do not mean to suggest that section 215 may not be read to\nrepeal any federal statute that protects the confidentiality of information.\nOur analysis is limited strictly to the case of census information in the\npossession of the Commerce Department, in light of the strong presumption against repeal of those confidentiality protections that has long been\napplied to that category of information. Indeed, we note that we have\nidentified nothing in the legislative history of section 215 indicating any\nintent on the part of Congress to touch upon protected census information,\neven though other types of sensitive information encompassed by the\nterms of section 215 were specifically addressed and identified as potentially covered by the provision.\nFor example, in the Reauthorization Act Congress amended section 215\nto require especially high-level approval within the FBI for applications\nrelating to certain categories of records\xe2\x80\x94specifically, \xe2\x80\x9clibrary circulation\nrecords, library patron lists, book sales records, book customer lists,\nfirearms sales records, tax return records, educational records, or medical\nrecords containing information that would identify a person.\xe2\x80\x9d 50 U.S.C.A.\n17\n\n\x0c34 Op. O.L.C. 1 (2010)\n\n\xc2\xa7 1861(a)(3). The Reauthorization Act conference report describes these\nprotections as applying to \xe2\x80\x9ccertain sensitive categories of records.\xe2\x80\x9d H.R.\nRep. No. 109-333, at 91 (2005) (Conf. Rep.). Notably, however, the\nreport does not mention census records, even though the long history of\nstatutory confidentiality protections for census records possessed by the\nCommerce Department suggests that Congress would also have considered such records \xe2\x80\x9csensitive\xe2\x80\x9d had it had them in mind as being subject to\ndisclosure under section 215.\nSimilarly, in debates regarding the original PATRIOT Act, there is no\nmention of census records, even though various other types of records are\nmentioned. In particular, Senator Feingold unsuccessfully offered a floor\namendment that would have limited section 215\xe2\x80\x99s scope to records held\nby a \xe2\x80\x9cbusiness\xe2\x80\x9d and expressly prevented disclosure under section 215 of\nrecords \xe2\x80\x9cprotected by any Federal or State law governing access to the\nrecords for intelligence or law enforcement purposes.\xe2\x80\x9d 147 Cong. Rec.\n19530\xe2\x80\x9331 (2001). Although supporters of Senator Feingold\xe2\x80\x99s amendment\nraised concerns that section 215 could require the disclosure of other\nforms of sensitive personal information, they did not mention census\ninformation in their floor statements, much less suggest that without the\nproposed amendment section 215 would repeal Census Act confidentiality\nprotections. See, e.g., id. (statement of Sen. Feingold) (expressing concern\nthat without the amendment \xe2\x80\x9call business records can be compelled to be\nproduced [under section 215], including those containing sensitive personal information such as medical records from hospitals or doctors, or\neducational records, or records of what books someone has taken out of\nthe library\xe2\x80\x9d) (emphasis added); id. at 19,532 (statement of Sen. Cantwell)\n(\xe2\x80\x9cthis legislation could circumvent or supersede Federal and State privacy\nlaws that protect student records, library records, and health records not\npreviously admissible under FISA\xe2\x80\x9d). And in a floor statement opposing\nthis amendment, Senator Hatch likewise made no reference to the Census\nAct (or indeed any other specific federal confidentiality statute). He\nsimply observed that the amendment would \xe2\x80\x9callow[] a host of state-law\nprovisions to stand in the way of national security needs\xe2\x80\x9d and \xe2\x80\x9ccondition\nthe issuance of the court order [under section 215] on a myriad of federal\nand state-law provisions,\xe2\x80\x9d thus \xe2\x80\x9cmaking investigations to protect against\ninternational terrorism more difficult than investigations of certain domestic criminal violations.\xe2\x80\x9d Id. at 19,532. The silence as to the statutory\n18\n\n\x0cCensus Confidentiality and the PATRIOT Act\n\nprotections for the confidentiality of census information is significant, as\nwe think it fair to say here what the Acting Attorney General said with\nrespect to the confidentiality of voluntary census records in his 1962\nopinion\xe2\x80\x94that \xe2\x80\x9ca change in the law so far-reaching as to deprive voluntary\nreports of their confidential nature certainly would have been pointed out\nand explained in\xe2\x80\x9d the legislative history. Confidentiality of \xe2\x80\x9cVoluntary\xe2\x80\x9d\nReports, 42 Op. Att\xe2\x80\x99y Gen. at 155.\n* * * * *\nWe therefore conclude that section 215 should not be construed to repeal otherwise applicable Census Act protections for covered census\ninformation such that they could require their disclosure by the Department of Commerce. Because no other PATRIOT Act provision that you\nhave identified, nor any such provision that we have separately reviewed,\nwould appear to have that effect, we agree that the PATRIOT Act, as\namended, does not alter the confidentiality protections in sections 8, 9,\nand 214 of the Census Act in a manner that could require the Secretary of\nCommerce to disclose such information.\nJEANNIE S. RHEE\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n19\n\n\x0c'


b'November 23, 1979\n\n79-82\n\nMEMORANDUM OPINION FOR THE\nGENERAL COUNSEL, GENERAL SERVICES\nADMINISTRATION\n(1)\n(2)\n\nPresidential Protection Assistance Act\n(18 U.S.C. \xc2\xa7 3056 note)\xe2\x80\x94Retroactive Effect\nFederal Improvements to Real Property Owned\nby a Former President\xe2\x80\x94Title Thereto\xe2\x80\x94\nRemoval Of\n\nThis responds to your request for the views of the Department of Justice\nconcerning the disposition o f Government property located at former\nPresident Nixon\xe2\x80\x99s San Clemente residence. For the reasons discussed\nbelow, we conclude that the Presidential Protection Assistance Act of\n1976, 18 U.S.C. \xc2\xa7 3056 note, does not apply to the termination of Govern\xc2\xad\nment services at the San Clemente estate and that the Government is not\nobligated to restore the property to its original state, as the owner re\xc2\xad\nquests. We further conclude that if Mr. Nixon sells the estate, the Govern\xc2\xad\nment has an arguable right to the portion o f the sale price attributable to\nGovernment improvements.\nI.\nYour first question is whether the Presidential Protection Assistance\nAct applies to the termination of Government services at the San Clemente\nestate. You tell us that all the Government property and improvements\nwere placed on the San Clemente estate prior to the passage of the 1976\nAct.\nThe Act itself does not provide an effective date. The general rule is that\na statute takes effect on the date of its enactment if the time is not other\xc2\xad\nwise fixed by law. Union Pac. Ry. v. Laramie Stock Yards C o., 231 U.S.\n190, 199 (1913); United States v. Gavrilovic, 551 F. (2d) 1099, 1103\n440\n\n\x0c(8th Cir. 1977); 2 J. Sutherland, Statutes and Statutory Construction\n\xc2\xa7 33.06 (4th ed. 1973). Statutes cannot be applied retroactively unless the\nwords are so clear and imperative that they can have no other meaning or\nunless the legislative intent cannot be otherwise satisfied. D e Madulfa v.\nUnited States, 461 F. (2d) 1240, 1247 (D.C. Cir. 1972), cert, denied, 409\nU.S. 949 (1972). A statute such as this, which may interfere with ante\xc2\xad\ncedent rights, will not be applied retroactively unless that is \xe2\x80\x9c \xe2\x80\x98the une\xc2\xad\nquivocal and inflexible import of the terms, and the manifest intention of\nthe legislature.\xe2\x80\x99 \xe2\x80\x9d Greene v. United States, 376 U.S. 149, 160 (1964),\nquoting Union Pac. Ry. v. Laramie Stock Yards C o., supra. Unless the\nclear, unequivocal intent of the Congress was that the Act be effective\nretroactively, it cannot be applied to the disposition of the San Clemente\nproperty.\nThe measure was introduced as a result of a thorough study o f expendi\xc2\xad\ntures of Federal funds in support of Presidential properties by the Govern\xc2\xad\nment Activities Subcommittee of the Committee on Government Opera\xc2\xad\ntions in the 93d Congress. 121 C o n g r e s s io n a l R e c o r d 12983-85 (1975).\nThe findings and conclusions of the subcommittee appear in a Committee\non Government Operations report, \xe2\x80\x9c Expenditures of Federal Funds in\nSupport of Presidential Properties,\xe2\x80\x9d Fifteenth Report by the Committee\non Government Operations, H. Rept. 1052, 93d Cong., 2d sess. (1974).\nThis study was triggered by certain matters involving the Nixon properties\nat Key Biscayne, Florida, and San Clemente, California. H. Rept. 105,\n94th Cong., 1st sess. (Pt. 2) 2 (1975). The subcommittee received infor\xc2\xad\nmation concerning these two locations in a report from the General Ac\xc2\xad\ncounting Office. General Accounting Office No. B-155950 (1974).\nA study of the legislative history reveals no clear intent that the bill be\napplied retroactively. The House report on the bill states that the bill was\ndesigned to correct certain deficiencies in existing law and to tighten loose\nprocedures. The list of things the bill was designed to accomplish does not\ninclude rectification of the problems at San Clemente. H. Rept. 105, 94th\nCong., 1st sess. (Pt. 2) 1-2 (1975). The recommendations of the GAO\nformed the basis for much of the bill and, according to Part 1 of the\nHouse report, those recommendations were intended to provide for better\nfuture controls over expenditures. H. Rept. 105 , 94th Cong., 1st sess. (Pt.\n1) 5-6 (1975). Similarly, the Senate report reveals only an intent to prevent\nfuture irregularities. In its statement on the need for the legislation, ex\xc2\xad\namples of abuses at Key Biscayne and San Clemente are recited, but there\nis no statement that this legislation retroactively would correct those par\xc2\xad\nticular abuses. Rather, the report summarizes: \xe2\x80\x9c H.R. 1244, as amended,\nis designed to prevent such misuse of the taxpayer\xe2\x80\x99s dollars by placing the\nresponsibility for all expenditures in one centralized place; that is, the U.S.\nSecret Service.\xe2\x80\x9d S. Rept. 1325, 94th Cong., 2d sess. 5 (1976).\nAlthough subsequent expressions of congressional understanding of\n441\n\n\x0clegislation are entitled to very little weight,\' we note that recent legislation\nindicates a congressional belief that the Presidential Protection Assistance\nAct of 1976 is not retroactive. On June 18, 1979, Senator Hart introduced\na resolution stating:\n[I]t is the sense o f the Senate that the Director of the Secret Serv\xc2\xad\nice and the Administrator of General Services shall take such ac\xc2\xad\ntions as may be necessary to obtain reimbursement in an amount\nby which any construction, renovation, improvements, equip\xc2\xad\nment or articles paid for by the Federal Government of the\nUnited States have increased the fair market value of the estate\nknown as San Clemente located in the State of California at the\ntime of and upon its sale by former President Richard M. Nixon.\n[S. Res. 187, 96th C o n g ., 1st sess., 125 C o n g r e s s io n a l R e c o r d\nS. 7892 (daily e d ., June 18, 1979).]\nThe resolution was referred to the Committee on Governmental Affairs\nbut no further action has been taken. The substance of the resolution,\nhowever, has been adopted as an amendment to a 1979 appropriation bill.\nTreasury, Postal Service, and General Government Appropriation Act,\n1980, Pub. L. No. 96-74, \xc2\xa7 616, 93 Stat. 577 (1979). On August 3, 1979,\nSenator Pryor submitted the amendment (125 C o n g r e s s io n a l R e c o r d\nS. 11725 (daily ed., August 3, 1979)),which was later revised by Senator\nHart to parallel more closely the language of the Presidential Protection\nAssistance Act. 125 C o n g r e s s io n a l Re c o r d S. 11814-15 (daily ed.,\nSept. 5, 1979). As enacted, \xc2\xa7 616 provides:\nIt is the sense of the Congress that, upon the sale of the estate\nknown as Casa Pacifica located in San Clemente, California,\nformer President Richard M. Nixon should reimburse the United\nStates for the original cost of any construction, renovation, im\xc2\xad\nprovements, equipment or articles paid for by the Federal\nGovernment of the United States, or for the amount by which\nthey have increased the fair market value of the property, as\ndetermined by the Comptroller General of the United States, as\nof the date of sale, whichever is less.\nBut the statute\xe2\x80\x99s language is permissive, not mandatory. It does not\nalter the effective date of the Act, nor expressly mandate that the Act be\napplied to the San Clemente property.2 Thus, it does not alter the rights or\nobligation of any party involved in the San Clemente transactions.\n\n\'See, Woodwork Manufacturers v. N LRB , 386 U .S. 612, 639 n. 34 (1967); Allyn v. United\nStates, 461 F.(2d) 810, 811 (Ct. Cl. 1972).\n\xe2\x80\x99Although some com m ents by Senator Stevens lend support to the argument that the Act\nitself should be applied to the Nixon property (see 125 C o n g . R e c . S. 11815 (daily ed., Sept.\n5, 1979)), the debate taken as a whole illustrates that the Congress did not believe the Act\ncould be applied retroactively but w anted formally to declare that the principles o f the Act\nshould be applied to all similarly situated property.\n\n442\n\n\x0cII.\n\nYour next question is whether the Government has a legal obligation to\ncomply with Mr. Nixon\xe2\x80\x99s request that all Government items be removed\nand that his property be restored to its original condition. The Presidential\nProtection Assistance Act, \xc2\xa7 5(b), provides that if the owner o f the prop\xc2\xad\nerty requests the removal of the improvements or other items, such items\nshall be removed and the nongovernmental property shall be restored to its\n\xe2\x80\x9c original state.\xe2\x80\x9d Because this Act is not retroactive, however, it is not\nnecessary to interpret the language of this provision. The rights and\nobligations of both the United States and Mr. Nixon must be determined\nwithout the assistance of that Act.\nThe threshold question regards the present title to the property in ques\xc2\xad\ntion. The Constitution gives to Congress the power to make all needful\nrules and regulations respecting the property of the United States. Con\xc2\xad\nstitution of the United States, Article IV, section 3, clause 2. Whether title\nto property of the United States has passed is a question of Federal law.\nJourdan v. Barrett, 45 U.S. (4 How.) 169, 184-85 (1846); Wilcox v.\nJackson, 38 U.S. (13 Pet.) 498, 517 (1839). At the time these im\xc2\xad\nprovements were placed on the property, there was no act of Congress\nstating whether title would remain in the United States or pass to the land\xc2\xad\nowner.3 Because only Congress can authorize the disposal o f Federal prop\xc2\xad\nerty, it must be determined whether congressional authorization to pur\xc2\xad\nchase the property and place it on nongovernmental property worked a\ntransfer of title. Although the specific statutory authority for the expend\xc2\xad\nitures is unclear,4 the expenditures apparently were made pursuant to Pub.\nL. No. 90-331, \xc2\xa7 2, 82 Stat. 170 (1968), repealed by the Presidential Pro\xc2\xad\ntection Assistance Act. Section 2 provided:\nHereafter, when requested by the Director of the United States\nSecret Service, Federal Departments and agencies, unless such\nauthority is revoked by the President, shall assist the Secret Serv\xc2\xad\nice in the performance o f its protective duties under section 3056\nof title 18 of the United States Code and the first section of this\njoint resolution.\nThe general common law rule holds that when a person voluntarily and\ngratuitously places improvements on property not his own, such im\xc2\xad\nprovements become the property of the landowner, in the absence of an\nagreement to the contrary. See, Chicago Title & Trust Co. v. Fox Theatres\nCorp., 164 F. Supp. 665, 671 (D.C. N.Y. 1958). This rule, consistent with\nthe rules on trespass and conversion, grew out of the notion that a person\nwho meddles with the property of another assumes the risk of doing so.\n\n\xe2\x80\x99The Presidential Protection Assistance Act now provides that all improvem ents and other\nitems acquired and used for the purpose o f securing any nongovernmental property shall be\nthe property o f the United States.\n\xe2\x80\x9cSee H. Rept. 1052, supra.\n\n443\n\n\x0cRestatement o f Restitutions, \xc2\xa7 42(1), and comment a thereto. Here,\nhowever, there was no meddling or mistake as to ownership. All parties\nunderstood that the improvements were being constructed on Mr. Nixon\xe2\x80\x99s\nproperty. If not made at the request of Mr. Nixon, they were made with\nhis knowledge and approval. The improvements benefited both Mr. Nixon\nand the United States, which had a duty to protect him. The improvements\nwere used by the United States in carrying out Federal functions.5\nThe United States and a private party can agree that fixtures placed\nby the Government on the land of the private party do not automatically\nbecome the property of the landowner. In United States v. Allegheny Co.,\n322 U.S. 174 (1944), a contractor installed Government-owned machinery\nin his mill pursuant to a contract with the United States. It was agreed that\nthe equipment specially required for the work should remain the property\nof the United States although it could not be removed without damage\nto the contractor\xe2\x80\x99s building. Allegheny County, seeking to tax the\nequipment, denied that the Government had valid title to the machinery.\nThe Court concluded that although the contractor had some legal\nand beneficial interest in the property as a bailee for mutual benefit, title\nto the property remained in the United States.6 In Crowell Land & Mineral\nCorp. v. United States, 114 F. Supp. 31 (W.D. La. 1953), the United\nStates installed a pipe under lands leased by it from plaintiff, and subse\xc2\xad\nquently removed the pipe, allegedly after the time allowed by the lease.\nThe plaintiff sued to recover the value of the pipe. Noting that forfeitures\nare not favored in the law, the court held that the pipe \xe2\x80\x9c undoubtedly was\nand remained the property of the United States,\xe2\x80\x9d even if the period of\ntime allowed by the contract had expired. Even in the absence of an\nexpress agreement, public policy may dictate that the party who con\xc2\xad\nstructed the improvements retain title.7 We believe it was the tacit under\xc2\xad\nstanding of all parties here that title remained in the United States.8 All\nGovernment-purchased property placed on the private property of prior\n\xe2\x80\x9c protectees\xe2\x80\x9d has been considered property of the Federal Government until\n\n\xe2\x80\x99We assume that all purchases were authorized by the Governm ent. For the purpose of\ndetermining the ownership and disposition, there is no need to distinguish property necessary\nto legitimate Federal function and property that may not have been necessary.\n\xe2\x80\x98Insofar as Allegheny County held that a tax measure by the value o f Government-owned\nproperty may never be imposed on a private party, it was overruled by United States v. City\no f Detroit, 355 U .S. 466, 495 (1958). See, United States v. County o f Fresno, 429 U .S. 452,\n462-63 n. 10 (1977). Those rulings did not affect the holding o f Allegheny County as to title.\n\xe2\x80\x99In Chicago Title & Trust Co. v. Fox Theatres Corp., 164 F. Supp. 665, 671 (S.D. N.Y.\n1958), the court wrote:\nW here, however, the buildings are erected by a lessee for trade purposes they have been\nheld to be trade fixtures which, in the absence o f provisions to the contrary in the lease,\nare the lessee\xe2\x80\x99s property and reasonable tim e thereafter. This rule is based upon a public\npolicy long ago enunciated to encourage trade and m anufacture.\n\xe2\x80\x98Transfer o f title at the time o f the improvem ents may conflict with Article II, section 1,\nclause 7 o f the C onstitution, which provides:\nT he President shall, at stated Times, receive for his-Services, a com pensation, which\nshall neither be increased nor diminished during the Period for which he shall have been\nelected, and he shall not receive within th at Period any other Em olum ent from the\nUnited States, or any o f them.\n\n444\n\n\x0cactual abandonment by the United States under the authority of 40 U.S.C.\n\xc2\xa7 483(h). The Government remained in control of improvements in per\xc2\xad\nforming its obligations to the former President. Congressional authoriza\xc2\xad\ntion to expend the funds did not transfer title to Mr. Nixon. Thus, we\nbelieve that title remained in the United States.\nThe question also arises as to the disposition of such property upon Mr.\nNixon\xe2\x80\x99s sale of the estate. There apparently is no issue as to the disposition\nof property not affixed to the estate. These items, according to the study\nyou have provided to us, are easily removable and Mr. Nixon asks that\nthey be removed. They should be removed when they are no longer needed\nat that location. The more difficult question involves removal of the im\xc2\xad\nprovements that are affixed to the land and buildings. Examples of these\nimprovements are a blockwail and fence, a bullet-resistant glass screen,\nwindow alterations, a sewer line, a gatehouse, and guardhouses.\nThe Government is generally under a duty to return the premises to the\nowner in as good a condition as when the improvements were made. This\nconclusion is based on an implied covenant against waste. United States v.\nBostwick, 94 U.S. 53, 66-68 (1876); United States v. Jordan, 186 F.(2d)\n803, 806 (6th Cir. 1951), a ff\xe2\x80\x99d, 342 U.S. 911 (1952). \xe2\x80\x9c As good a\ncondition\xe2\x80\x9d does not, however, require removal of all the improvements. It\nwould benefit neither the Federal Government nor Mr. Nixon to engage in\nthe costly removal of these items which have minimal salvage value. Hav\xc2\xad\ning consented to this installation when it was apparent that subsequent\nremoval would not be economically or structurally feasible, Mr. Nixon\ncannot, we believe, successfully enforce his demand that they be removed.\nIf the property is placed in as good a condition as existed prior to the im\xc2\xad\nprovements, Mr. Nixon is not damaged by the failure of the United States\nto comply with his request for removal of the items. Although they remain\nGovernment property until abandoned, the Government is not obligated\nto remove them.\nm.\nYour final question is whether the Government can require Mr. Nixon\nto reimburse the Government for the portion of the sale price attributable\nto the Government improvements. There is no clear answer to this ques\xc2\xad\ntion. Certainly Mr. Nixon cannot be required to reimburse the United\nStates for these improvements so long as they are used to further a public\npurpose, that is, the protection of the former President. If the former\nPresident decides to sell the property and thus terminates the need for the\nprotection at that site, however, it can be argued that he is obligated to\nremit to the United States the portion of the total proceeds attributable to\nthe sale of the Government\xe2\x80\x99s property. This conclusion follows from the\nfact that title to the property remains in the Government and that reten\xc2\xad\ntion of the proceeds by Mr. Nixon would result in his unjust enrichment.\n445\n\n\x0cThe general rule is that persons who cause improvements to be made on\nthe land of another are not entitled to restitution. Restatement o f Restitu\xc2\xad\ntions \xc2\xa7 42(1) (1937). Where the improvements are made with the\nknowledge and approval of the landowner and are necessary for his pro\xc2\xad\ntection, however, the person who pays for the improvements is entitled to\nrestitution. Cf. Restatement o f Restitutions , \xc2\xa7 112 (1937). A person who in\ngood faith improves the property or another may require payment for the\nimprovements placed upon the property or for the increased value of the\nland. See, Crowell Land & Mineral Corp. v. United States, 114 F. Supp.\n31, 36 (W.D. La. 1953). If Mr. Nixon refuses to transfer the funds from\nthe sale of Government property, the Government may have a cause of ac\xc2\xad\ntion in quasi-contract, seeking restitution for the sale of its property.\nAnother basis of recovery would be an action for money had and received,\nwhich is predicated on the theory that the defendant has received money\nwhich in fact belongs to plaintiff, and in which the defendant never at any\ntime had an ownership interest. United States v. Elliot, 205 F. Supp. 581,\n585 (N.D. Cal. 1962). This action is equitable in nature, premised on the\nassertion that money is held by the defendant which in equity and good\nconscience should be delivered to plaintiff.9 A government has the same\nrights to restitution as do private individuals or corporations, and the\nsame procedural rules apply.10 A government can seek restitution of public\nassistance payments fraudulently obtained,11 money paid by mistake,12\nand kickbacks illegally paid to Government employees.13 It also has been\nheld that moneys collected under color of office without any legal author\xc2\xad\nity are to be paid to the public authority on whose behalf they were ille\xc2\xad\ngally collected.14\n\n\xe2\x80\x99See, Bloomfield Steamship Co. v. United States, 258 F. Supp. 891, 910 (S.D. Tex. 1964),\nrev\'d, 359 F.(2d) 506 (5th Cir. 1966) cert, denied, 385 U .S. 1004 (1966). An analogy here can\nbe drawn to the law of partition in which a cotenant who has made perm anent and valuable\nimprovem ents on the property is entitled to recover the am ount by which the improvements\nenhanced the sale value o f the property. See, Hunter v. Schultz, 240 C.A . 2d 24, 31, 49 Cal.\nR ptr. 315 (1966); Buttram v. Finley, 73 Cal. A pp. 2d 536, 166 P.2d 654, 658 (1946); Carson\nv. Broody, 56 Neb. 648, 77 N .W . 80 (1898).\n\'\xc2\xb0See, United States v. Carter, 217 U .S. 286 (1910-; Sanborn v. United States, 135 U.S. 271,\n281 (1890)). In United States v. R.J. Reynolds Tobacco Co., 416 F. Supp. 316, 325 n. 3\n(D .N .J. 1976), the United States sought a declaratory judgm ent as to the legal relations o f\nparties to a merger. The court emphasized that the U nited States stands before a court on an\nequal basis with private parties and is bound by the same general rules.\n"See, People v. Flores, 17 Cal. Rptr. 382 (1961); County o f Champaign v. Hanks, 41 111.\nA pp. 3d 679, 353 N .E . 2d 405 (1976).\n\'2Sanbom v. United States, 135 U .S. 271, 281 (1890); In re Griven\xe2\x80\x99s Estate, 166 Kan. 630,\n203 P .2d 207, 209-10 (1949).\n\'*41 U .S.C . \xc2\xa7\xc2\xa7 51-54. United States v. Drumm, 329 F. (2d) 109, 113 (1st Cir. 1964); Con\xc2\xad\ntinental Management, Inc. v. United States, 527 F.(2d) 613, 620-21 (Ct. Cl. 1975).\n"W ebster Co. v. R. T. Nance, 362 S.W . 2d 723 (Ky. A pp. 1962). In Webster Co., the court\nrequired a justice o f the peace to pay to the county all traffic fees the justice illegally col\xc2\xad\nlected. T he court reasoned that no officer is entitled to receive for the perform ance o f his\nduties m ore than is authorized by the law. Id. at 724.\n\n446\n\n\x0cThis is a unique situation, and it is difficult to predict whether a court\nwould adopt the equitable arguments set forth above. To determine the\nrights of a former President in this situation, a court undoubtedly would\ngive great weight to past practices.15 In your letter you state:\nIn past instances where Government services to a former presi\xc2\xad\ndent or vice president were being terminated at a privately owned\nlocation (including Mr. Nixon\xe2\x80\x99s Key Biscayne estate), all\nGovernment property that could be reasonably and economically\nremoved was removed and only these items or improvements\nhaving a salvage value of far less than the cost of their removal\nwere left on the property. In these instances it has been the prac\xc2\xad\ntice of the General Services Administration to enter into a written\nagreement with the property owner wherein the owner agrees to\nallow the Government to abandon those items and/or im\xc2\xad\nprovements which could not be removed economically in ex\xc2\xad\nchange for whatever enhancement his property has gained by the\naddition of these Government items or improvements.\nA court reasonably might examine these prior agreements and conclude\nthat they define the rights of the parties here. In that case, the United\nStates would not be entitled to reimbursement.16\nL a r r y L . S im m s\n\nD eputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n"See generally, United States v. Midwest Oil Co., 236 U.S. 459, 474 (1918). In 1974, the\nAttorney General relied on historical practice to conclude that a President retains ownership\no f Presidential docum ents. 43 O p. A tt\xe2\x80\x99y. Gen. 1 (Sept. 6, 1974). In Nixon v. Administrator,\n433 U.S. 425, 445 n. 8 (1977), the C ourt refused to reach this question. As with G overnm ent\nimprovements to private property, Congress recently has enacted legislation specifying that\nthe United States shall retain ownership. See Presidential Records Act o f 1978, P ub. L. No.\n95-591, \xc2\xa7 2(a), 92 Stat. 2523 (codified in 44 U .S.C . \xc2\xa7 2202).\n\xe2\x80\x9c Past practice appears to reflect the proposition that refusal to remove property in such\ncircumstances should be regarded as a constructive abandonm ent notwithstanding the sub\xc2\xad\njective intent o f the party refusing to remove. Such an argum ent is not without force. Acts in\xc2\xad\ndicating a desire neither to use nor to retake possession o f property are inconsistent with an\nintent to retain ownership. See, e.g., Ellis v. Brown, 177 F. (2d) 677, 679 (6th Cir. 1949);\nGilberion Contracting Co. v. H ook, 255 F. Supp. 687, 693-94 (E .D . Pa. 1966).\n\n447\n\n\x0c'


b'Appointments to the Board of the\nLegal Services Corporation\nThe President has authority to appoint a member of the Board of the Legal Services Corporation who\nhas been confirmed after his or her statutory term of office has expired, where the holdover provision of the statute allows a member to serve until a successor is appointed.\n\nSeptember 20, 2005\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nOn July 28, 2005, the Senate confirmed the President\xe2\x80\x99s nominations of Thomas\nA. Fuentes and Bernice Phillips as members of the Legal Services Corporation\xe2\x80\x99s\nBoard of Directors, for terms expiring July 13, 2005. 151 Cong. Rec. 19,014 (July\n28, 2005). You have asked whether the President may now make these appointments and, if so, how long the appointees may serve. We believe that the President\nmay make the appointments and that each appointee would serve at the pleasure of\nthe President in a holdover capacity until his or her successor is appointed and\nqualifies.\nThe Legal Services Corporation (\xe2\x80\x9cLSC\xe2\x80\x9d), which \xe2\x80\x9cprovid[es] financial support\nfor legal assistance in noncriminal proceedings or matters to persons financially\nunable to afford legal assistance,\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2996b(a) (2000), has a board of\ndirectors \xe2\x80\x9cconsisting of eleven voting members appointed by the President, by and\nwith the advice and consent of the Senate . . . .\xe2\x80\x9d Id. \xc2\xa7 2996c(a). The directors serve\nstaggered terms of three years, with the terms of five directors expiring one year\nbefore the terms of the other six. Id. \xc2\xa7 2996c(b). To preserve this staggering, \xe2\x80\x9c[t]he\nterm of each member . . . shall be computed from the date of termination of the\npreceding term.\xe2\x80\x9d Id. \xc2\xa7 2996c(b). At the same time, to ensure the continuity of the\nLSC, the statute allows members in some cases to \xe2\x80\x9chold over\xe2\x80\x9d after their terms\nexpire and new terms begin: \xe2\x80\x9cEach member of the Board shall continue to serve\n[beyond the expiration of his or her term] until the successor to such member has\nbeen appointed and qualified.\xe2\x80\x9d Id.\nOn January 24, 2005, the President nominated Mr. Fuentes and Ms. Phillips for\nvacancies on the Board and specified in the nominations that the nominees would\nserve terms expiring July 13, 2005. 151 Cong. Rec. 592 (Jan. 24, 2005). The\nnominations were for these foreshortened periods because the term for each\nnomination, in accordance with the statute, was \xe2\x80\x9ccomputed from the date of\ntermination of the preceding term\xe2\x80\x9d and because the term of each nominee\xe2\x80\x99s\npredecessor had expired three years before that date. Id.\nIf the nominees had been confirmed and appointed before July 13, no matter\nhow close to that date, there would be no doubt that they could \xe2\x80\x9ccontinue to serve\xe2\x80\x9d\nbeyond that date. Thus, there would be no gap in the filling of the positions. The\n\n166\n\n\x0cAppointments to the Board of the Legal Services Corporation\n\nquestion is whether the statute nevertheless bars a holdover from filling a gap\nsimply because he was confirmed after July 13. We do not think that it does.\nAlthough we have found no precedent for appointments to terms that have\nexpired, we believe that the appointments of Mr. Fuentes and Ms. Phillips would\nbe consistent with the statute. The statute provides for \xe2\x80\x9cmembers\xe2\x80\x9d of the Board to\nbe \xe2\x80\x9cappointed by the President, by and with the advice and consent of the Senate.\xe2\x80\x9d\n42 U.S.C. \xc2\xa7 2996c(a). Here, that would be done. The Senate has given its advice\nand consent to an appointment by the President. There is no doubt about which of\nthe positions on the Board each of the prospective appointees would take. Even\nthough the particular terms to which they were nominated have expired, the\npositions on the Board that they would occupy of course continue to exist. They\ntherefore would be made \xe2\x80\x9cmembers\xe2\x80\x9d of the Board. Furthermore, because of the\nstatutory provision under which \xe2\x80\x9c[e]ach member of the Board shall continue to\nserve until the successor to such member has been appointed and qualified,\xe2\x80\x9d id.\n\xc2\xa7 2996c(b), they may carry out their duties as members notwithstanding the\nexpiration of the terms for which their appointments would be made. A member\nappointed to an expired term would serve pursuant to that provision, pending\nreplacement by a successor.\nIt would, moreover, make little practical sense to conclude that the President\nlacks authority to make the appointments. The President in his nomination and the\nSenate in its confirmation have passed upon each prospective appointee\xe2\x80\x99s fitness\nfor office, and the President is now about to make the final decision to effect the\nappointment. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 157 (1803). A conclusion that the President may not make the appointment would mean that the\nSenate\xe2\x80\x99s solemn act of advice and consent was a nullity, that the considerable\neffort of bringing the prospective appointment to this point was wasted, and that\nthe Board would be denied the services that the President and Senate believe it\nshould have.\nArguably, the \xe2\x80\x9choldover\xe2\x80\x9d provision does not fit the present facts; it allows\nmembers to \xe2\x80\x9ccontinue to serve,\xe2\x80\x9d and it might be argued that appointees who\nbecome members after the expiration of their terms do not \xe2\x80\x9ccontinue\xe2\x80\x9d to serve as\nholdovers because they did not serve earlier. However, an appointment under\nsection 2996c(a) makes the appointee a \xe2\x80\x9cmember\xe2\x80\x9d of the Board, and section\n2996c(b) simply provides that, from that moment, the member may serve in a\nconstant manner, without interruption, notwithstanding the expiration of his or her\nterm, whenever that may occur. This reading is consistent with the sense of the\nverb \xe2\x80\x9ccontinue\xe2\x80\x9d as meaning \xe2\x80\x9cto be steadfast or constant in a course or activity:\nkeep up or maintain esp. without interruption a particular condition, course, or\nseries of actions.\xe2\x80\x9d Webster\xe2\x80\x99s Third New International Dictionary 493 (1986).\nFurthermore, to the extent that the word \xe2\x80\x9ccontinue\xe2\x80\x9d is ambiguous, we construe it\nso as to promote a complete, fully functioning Board. The clear purpose of the\nholdover provision here, \xe2\x80\x9clike the holdover clauses that appear in the statutes of\n\n167\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nmany independent agencies, is to ensure continuity and avoid the leadership\nvacancies that otherwise would exist until successor officials could be appointed,\xe2\x80\x9d\nand \xe2\x80\x9cto prevent gaps in agency leadership\xe2\x80\x9d and \xe2\x80\x9censure agency continuity,\xe2\x80\x9d Swan\nv. Clinton, 100 F.3d 973, 985 (D.C. Cir. 1996) (citations omitted) (interpreting a\nprovision that precluded reappointment and thus could raise an issue about\ncontinuity, but relying on authorities about various holdover clauses to reach the\ngeneral conclusion about their purpose); and this gap-filling purpose supports the\nconclusion that the appointees here can serve as holdovers. 1\nThe appointees\xe2\x80\x99 status, to be sure, would be unusual. A position held by a\nholdover official at the LSC is vacant for the purposes of the Recess Appointments\nClause. Effect of Statutory Holdover Provisions, 2 Op. O.L.C. 398 (1978);\nMemorandum for C. Boyden Gray, Counsel to the President, from William P.\nBarr, Assistant Attorney General, Office of Legal Counsel, Re: Recess Appointments to the Board of Directors of the Legal Services Corporation (Nov. 28,\n1989); McCalpin v. Dana, No. 82-542 (D.D.C. Oct. 5, 1982) (the President could\ndisplace holdover directors by making recess appointment), appeal dismissed as\nmoot, McCalpin v. Durant, 766 F.2d 535 (D.C. Cir. 1985); but see Wilkinson v.\nLegal Servs. Corp., 865 F. Supp. 891 (D.D.C. 1994) (when an LSC director is\nserving under a holdover provision, the director\xe2\x80\x99s office is not vacant and thus\ncannot be filled through a recess appointment), rev\xe2\x80\x99d on other grounds, Wilkinson\nv. Legal Servs. Corp., 80 F.3d 535 (D.C. Cir. 1996). Thus, the appointments here\nwould not \xe2\x80\x9cfill\xe2\x80\x9d the positions for those purposes. But this consequence does not\npresent a good reason for concluding that the appointment cannot be made at all.\nThese appointees would be removable at will by the President and would not have\nthe tenure protection that other appointees may enjoy, see, e.g., Swan, 100 F.3d at\n984 (even assuming that appointees would have tenure protection during their\nterms, they are removable without cause while they are holding over), but they\nwould be able fully to discharge the duties of their offices until they are replaced\nby successors. 2\n1\nA similar gap-filling purpose has informed the interpretation of the Recess Appointments Clause,\nU.S. Const. art. II, \xc2\xa7 2, cl. 3, where the phrase \xe2\x80\x9cVacancies that may happen during the Recess of the\nSenate\xe2\x80\x9d has been construed to reach vacancies that first occur before a recess but still exist when the\nrecess begins. In accordance with this construction, the court in Evans v. Stephens, 387 F.3d 1220,\n1226\xe2\x80\x9327 (11th Cir. 2004) (en banc), explained that \xe2\x80\x9cinterpreting the phrase to prohibit the President\nfrom filling a vacancy that comes into being on the last day of a Session but to empower the President\nto fill a vacancy that arises immediately thereafter (on the first day of a recess) contradicts what we\nunderstand to be the purpose of the Recess Appointments Clause: to keep important offices filled and\nthe government functioning.\xe2\x80\x9d\n2\nAlthough the President\xe2\x80\x99s power to displace a holdover director through a recess appointment is\nsanctioned by the longstanding view of the Executive Branch and by some practice, the exercise of a\npower simply to remove a holdover director at the LSC would be, as far as we are aware, unprecedented. We nevertheless believe that the President has the power to remove a holdover director at will.\nBy statute, a director \xe2\x80\x9cmay be removed by a vote of seven members for malfeasance in office or for\npersistent neglect of or inability to discharge duties, or for offenses involving moral turpitude, and for\n\n168\n\n\x0cAppointments to the Board of the Legal Services Corporation\n\nFinally, we do not believe that Mr. Fuentes and Ms. Phillips could be considered to be appointed to three-year terms beginning July 13, 2005. Presidents\nsometimes make two nominations of a person at the same time\xe2\x80\x94one nomination\nfor the unexpired portion of a term and another for the succeeding full term. See\nMemorandum for John D. Calhoun, Assistant Deputy Attorney General, from\nRobert Kramer, Assistant Attorney General, Office of Legal Counsel, Re:\nProspective Appointments by the President (Apr. 7, 1960). Here, however, the\nPresident nominated Mr. Fuentes and Ms. Phillips only for the unexpired portions\nof the terms ending July 13, 2005. The practice of making simultaneous nominations for successive terms, along with the absence of such nominations here,\nnegates any argument that the Senate\xe2\x80\x99s confirmations for terms ending July 13,\n2005, should be regarded as confirmations for terms ending in 2008, and that the\nlater appointments would also be for such terms. Cf. Case of Chief Constructor\nEasby, 16 Op. Att\xe2\x80\x99y Gen. 656, 657 (1880) (\xe2\x80\x9cThe law of the term of the office, of\n\nno other cause.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2996c(e). The statute is silent on removal by the President. We would not\nconstrue this legislative silence as precluding the President from removing a holdover director, because\nsuch a construction would raise serious constitutional concerns. See The President\xe2\x80\x99s Authority to\nRemove the Chairman of the Consumer Product Safety Commission, 25 Op. O.L.C. 171, 172 (2001)\n(\xe2\x80\x9cCPSC Memorandum\xe2\x80\x9d). Therefore, in our view, \xe2\x80\x9cunless Congress signals a clear intention otherwise,\na statute should be read to preserve the President\xe2\x80\x99s removal power, so as to avoid any constitutional\nproblems.\xe2\x80\x9d Id. at 173 (citations omitted). There may still be a question whether the President\xe2\x80\x99s removal\nauthority should be limited by an implied \xe2\x80\x9cfor cause\xe2\x80\x9d restriction. Whatever arguments for such a\nrestriction might be offered as to removal of a director during his term, we believe that removal of a\nholdover director would not require cause. A \xe2\x80\x9cfor cause\xe2\x80\x9d restriction on removal during a holdover\nperiod cannot be justified as necessary for the LSC\xe2\x80\x99s independence. As the District of Columbia Circuit\nheld in rejecting the argument that holdover officials at the National Credit Union Administration were\nremovable only for cause,\n[h]oldover members can be replaced, whether they have removal protection or not, by\nthe President nominating and the Senate confirming their successors. As a result, a\nremoval restriction will not protect holdover members from the aftermath of a Presidentially unpopular decision, and holdover members know that even if they cannot be\nremoved directly, an unpopular decision may lead the President to nominate a successor immediately or encourage the Senate to speed up confirmation hearings. . . . [A]ll\nthat removal protection achieves is to make holdover members more dependent on\nSenate inaction than on the President.\nSwan, 100 F.3d at 984. A concurring opinion was, if anything, more emphatic:\n[A]fter the term expires, the reason for the assumption [that tenure protection could\never be inferred] expires as well. Unless, then, Congress indicates in the legislation itself that it intends some measure of job protection during the holdover period, which\nin this sort of situation\xe2\x80\x94where Congress did not explicitly provide a good cause limitation on removal during the actual term\xe2\x80\x94is virtually inconceivable, there is no reason\nat all to infer a congressional purpose to limit the President\xe2\x80\x99s removal power during\nthe holdover period.\nId. at 990 (Silberman, J., concurring). Thus, in addition to the reasons that counsel against inferring\ntenure protection even during an official\xe2\x80\x99s term, see CPSC Memorandum, 25 Op. O.L.C. at 172\xe2\x80\x9374,\nthere are compelling reasons that the statutory silence about the President\xe2\x80\x99s removal authority should\nnot be interpreted to impose a removal restriction during a holdover period.\n\n169\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\ncourse, controls special language in the nomination and confirmation.\xe2\x80\x9d);\nQuackenbush v. United States, 177 U.S. 20, 27 (1900) (\xe2\x80\x9cthe terms of the commission cannot change the effect of the appointment as defined by the statute\xe2\x80\x9d).\nSTEVEN G. BRADBURY\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n170\n\n\x0c'