b"Detail of Law Enforcement Agents to Congressional Committees\nDetails of Departm ent of Justice law enforcem ent agents to congressional committees are statutorily\nauthorized provided the details are m ade on a reimbursable basis\nSuch details do not violate the constitutional principles of separation of powers as long as the details\nare advisory in nature, involve functions not required by the Constitution to be performed by an\n\xe2\x80\x9cofficer\xe2\x80\x9d of the United States, and w hen there are particularly compelling policy reasons for the\nassignm ent that outweigh any separation of powers concerns.\nDue to the substantial policy and ethical concerns such details raise, the Department should consider\na reim bursable detail only after a careful exam ination of the functions to be performed and con\xc2\xad\nsideration of the conflicts likely to arise.\n\nSeptember 13, 1988\nM e m o r a n d u m O pin io n f o r t h e A c t in g D e p u t y A t t o r n e y G e n e r a l\n\nIntroduction and Summary\n\nThis responds to a request from James Byrnes, formerly of your office, as to\nthe legality and appropriateness of detailing Department of Justice law enforce\xc2\xad\nment agents to congressional committees.1 For the reasons outlined below, we\nfind that there is legal authority to support such details as long as the details are\nmade on a reimbursable basis. No constitutional issue is implicated as long as it\nis carefully ascertained and observed that the functions to be performed by the\ndetailed employee are not those of an \xe2\x80\x9cofficer\xe2\x80\x9d of the United States. We believe,\nhowever, that such details do raise separation of powers concerns, because they\nplace an employee in the difficult position of serving two masters with conflict\xc2\xad\ning interests\xe2\x80\x94the legislative and executive branches\xe2\x80\x94and because such details\ncreate the risk that privileged executive branch information and plans may be dis\xc2\xad\n1 Department of Justice regulations require Department components to obtain approval of the Deputy Attorney\nGeneral before details of employees outside the Department can be effected or extended Mr. Byrnes asked this Of\xc2\xad\nfice for guidance with respect to four individual requests See, e g , Memorandum for Charles J Cooper, Assistant\nAttorney General, Office of Legal Counsel, from James Byrnes, Associate Deputy Attorney General (June 18,\n1987). The Federal Bureau of Investigation (\xe2\x80\x9cFBI\xe2\x80\x9d) proposed to send two FBI agents to the Senate Permanent Sub\xc2\xad\ncommittee on Investigations One of those requests was withdrawn by the FBI; with respect to the other request,\nthe agent did complete the detail, which was arranged on a reimbursable basis. Recently, an extension of this de\xc2\xad\ntail has been requested. See Memorandum for Harold C. Christensen, Acting Deputy Attorney General, from Harry\nH. Flickinger, Assistant Attorney General, Office of Legal Counsel (Aug. 22, 1988) The Drug Enforcement Ad\xc2\xad\nministration (\xe2\x80\x9cDEA\xe2\x80\x9d) proposed to send one DEA special agent to the House Judiciary Subcommittee on Cnme and\none special agent to the Select Committee on Narcotics Abuse and Control for the 100th Congress. We understand\nthat the former detail was terminated by the Subcommittee within days after the agent commenced the detail; the\nlatter request was withdrawn by the DEA. We have prepared this opinion m order to provide you with guidance in\nreviewing the request for extension as well as future requests for such details.\n184\n\n\x0cclosed inappropriately. Moreover, these details may raise potential ethical con\xc2\xad\ncerns under the ABA Model Code of Professional Responsibility or analogous\ncodes of professional conduct. In light of these concerns, we do not believe that\nthese details should be approved as a matter of routine practice. Instead, each pro\xc2\xad\nposed detail should be carefully scrutinized to determine whether the particular\nfunctions to be performed by the employee can be constitutionally undertaken\nby someone outside the direct supervision of the executive branch and, if so,\nwhether the benefits to be gained by the law enforcement agencies are sufficiently\nextraordinary to outweigh the separation of powers and ethical concerns raised\nby the detail.\nI. Statutory Authority\n\nThis Office has previously construed 2 U.S.C. \xc2\xa7 72a(f) to provide implicit le\xc2\xad\ngal authority for assignments of executive branch personnel to various congres\xc2\xad\nsional committees.2 Section 72a(f) provides:\nNo committee shall appoint to its staff any experts or other per\xc2\xad\nsonnel detailed or assigned from any department or agency of the\nGovernment, except with the written permission of the Commit\xc2\xad\ntee on Rules and Administration of the Senate or the Committee\non House Administration of the House of Representatives, as the\ncase may be.\nThe theory behind this Office\xe2\x80\x99s longstanding interpretation is that it would be\nsuperfluous for Congress to impose a statutory prohibition against the appoint\xc2\xad\nment of detailed personnel except under specified conditions unless the detail of\npersonnel was already authorized. Accordingly, the precedent of this Office sup\xc2\xad\nports the view that there is statutory' authority for the FBI and the DEA to send\nlaw enforcement agents to congressional committees on a reimbursable basis.3\n2 See. e g , Detail o f Department of Justice Attorneys to Congressional Committees, 1 Op. O.L.C. 108 ( 1977);\nMemorandum from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re \xe2\x80\xa2Authonty for\nDetail o f Executive Branch Personnel (Assistant United States Attorney) to a Select Committee in the House o f Rep\xc2\xad\nresentatives (June 23, 1969). In both of these opinions, this Office addressed the legality of detailing executive\nbranch attorneys to congressional committees, concluding that section 72a(f) provided legal authority for such as\xc2\xad\nsignments. In the 1977 opinion, however, the Office noted that the potential ethical and policy problems of each\nassignment should be examined carefully by appropriate Department officials.\n3 We note, however, that a nonreimbursable congressional detail raises sufficiently serious legal questions that,\nas a general matter, they should not be authorized. One possible prohibition to such details is the general rule of ap\xc2\xad\npropriations law that prohibits the use of an agency\xe2\x80\x99s appropriations for unauthorized purposes. This principle, the\nso-called \xe2\x80\x9cpurpose requirement,\xe2\x80\x9d emanates from 31 U.S C. \xc2\xa7 1301(a), which provides that \xe2\x80\x9c[appropriations shall\nbe applied only to the objects for which the appropriations were made except as otherwise provided by law.\xe2\x80\x9d The\nComptroller General has interpreted section 1301(a) to restrict the use of appropriated funds by executive branch\nagencies to compensate their employees who are detailed to congressional committees absent specific statutory au\xc2\xad\nthority for such use, stating that it \xe2\x80\x9c\xe2\x80\x98must appear that the work of the committee to which the detail or loan of the\nemployee is made will actually aid the agency in the accomplishment of a purpose for which its appropriation was\nmade such as by obviating the necessity for the performance by such agency of the same or similar work.\xe2\x80\x99\xe2\x80\x9d 64\nComp. Gen 370, 379 (1985) (quoting 21 Comp Gen. 1055, 1057-58 (1942))\n\n185\n\n\x0cII. Separation of Powers\n\nWe turn next to the question of whether details of Department personnel to\ncongressional committees violate the constitutional principle of separation of\npowers. The United States Supreme Court has consistently reaffirmed the im\xc2\xad\nportance in our constitutional scheme of the separation of governmental powers\ninto the three coordinate branches. See, e.g.,Bowsher v. Synar, 478 U.S. 714,725\n(1986); Buckley v. Valeo, 424 U.S. 1 (1976). In a recent opinion, Morrison v. Ol\xc2\xad\nson, 487 U.S. 654 (1988), the Court once again recognized that the system of sep\xc2\xad\narated powers and checks and balances established in the Constitution was re\xc2\xad\ngarded by the Framers as \xe2\x80\x98\xe2\x80\x9ca self-executing safeguard against the encroachment\nor aggrandizement of one branch at the expense of the other.\xe2\x80\x99\xe2\x80\x9d Id. at 693 (quot\xc2\xad\ning Buckley v. Valeo, 424 U.S. at 122). The Court, however, also pointed out that\nit has never held that the Constitution requires that the three branches of gov\xc2\xad\nernment operate with absolute independence of one another. Id. at 693-94 (cit\xc2\xad\ning United States v. Nixon, 418 U.S. 683, 707 (1974)).\nArticle II, Section 1 vests the executive power in the President of the United\nStates. The President\xe2\x80\x99s Article II, Section 3 duty to \xe2\x80\x9ctake Care that the laws [are]\nfaithfully executed\xe2\x80\x9d recognizes the President\xe2\x80\x99s authority to exert \xe2\x80\x9cgeneral ad\xc2\xad\nministrative control over those executing the laws.\xe2\x80\x9d Myers v. United States, 272\nU.S. 52,164 (1926). The pertinent issue in the instant case is whether the Presi\xc2\xad\ndent\xe2\x80\x99s ability to supervise his subordinates in the performance of their executive\nbranch functions is unconstitutionally impaired by the congressional details. See\nMorrison v. Olson, 487 U.S. at 670\xe2\x80\x9477.\nIt is our view that although the detailed personnel nominally remain executive\nbranch \xe2\x80\x9cemployees\xe2\x80\x9d during the course of the details, they may not, consistent\nwith constitutional requirements, serve as \xe2\x80\x9cofficers\xe2\x80\x9d performing executive branch\nfunctions within the contemplation of Article II. See generally Buckley v. Valeo,\n424 U.S. 1, 126, 140-41 (1976). As a factual matter, none of the proposed de\xc2\xad\ntails would appear to transgress this principle. In particular, we are advised that\nthe functions to be performed by the detailed personnel are primarily of an advi\xc2\xad\nsory or research nature. For example, as we understand it, the purpose of the prior\ndetail of an FBI Special Agent to the Permanent Subcommittee on Investigations\nof the Senate Committee on Governmental Affairs was to provide to the Sub\xc2\xad\ncommittee substantive expertise on organized crime operations and investigative\ntechniques. Under the proposed extension of this detail, the Special Agent will\n3 ( ... continued)\nThe Comptroller General is an officer of the legislative branch, Bowsher v Synar, 478 U S. 714,727-32(1986),\nand, historically, the executive branch has not considered itself bound by the Comptroller General\xe2\x80\x99s legal opinions\nif they conflict with the legal opinions of the Attorney General or of this Office However, we find that in the in\xc2\xad\nstant case the Comptroller General\xe2\x80\x99s construction of relevant appropriations law is not adverse to our reading of\nthe law. Based on our interpretation of the purpose requirement, we believe that there is a serious question as to\nwhether a Department law enforcement agency reasonably could claim that it is within the agency\xe2\x80\x99s mission or pur\xc2\xad\npose to work for committees within the legislative branch.\n\n186\n\n\x0ccontinue to assist the Subcommittee in fulfilling its mandate, which requires con\xc2\xad\nducting an in-depth analysis of traditional organized crime methods. Anotherproposed detail would have involved sending a DEA Special Agent to the House Se\xc2\xad\nlect Committee on Narcotics Abuse and Control to assist the Committee in\nevaluating the drug enforcement program and work of the DEA.\nThe functions described above appear to be of a fact-finding or advisory na\xc2\xad\nture performed on behalf of congressional committees charged with oversight of\nfederal law enforcement efforts and, as such, do not constitute the \xe2\x80\x9cexercisfe of]\nsignificant authority pursuant to the laws of the United States,\xe2\x80\x9d Buckley v. Va\xc2\xad\nleo, 424 U.S. at 126.4 Nor are they of a law enforcement character which would\nrequire that they be performed or supervised by Article II officers.5 Accordingly,\nthe fact that the detailed employees are supervised by legislative branch person\xc2\xad\nnel does not contravene the Constitution and infringe upon the President\xe2\x80\x99s su\xc2\xad\npervisory authority over the executive branch in the exercise of its Article II re\xc2\xad\nsponsibilities, as long as employees are performing only non-law enforcement,\nadvisory functions.6\nEven when confined to non-law enforcement and advisory functions, however,\nwe believe that details of executive branch employees to the legislative branch\nraise substantial separation of powers concerns. In our system of separated pow\xc2\xad\ners, the legislative and executive branches often have conflicting interests and\nthus a detailed employee may be put in the difficult position of choosing between\nserving the interests of the executive branch and those of the legislative branch.\nFor instance, we note that one DEA agent has been detailed to aid in the evalu\xc2\xad\nation of DEA programs, presumably with a view toward legislation. This surely\nexacerbates the well-known tension between the executive branch\xe2\x80\x99s interest in\nhaving administrative flexibility in managing its programs and the legislative\nbranch\xe2\x80\x99s interest in imposing more detailed requirements on such management.\nIt seems doubtful that the agent can faithfully defend the interests of the execu\xc2\xad\ntive branch in such matters when he has been specially detailed to do the leg\xc2\xad\nislative branch\xe2\x80\x99s bidding.\n4 Indeed, assuming that the tasks in which the detailed personnel are assisting the legislative branch are within\nthe legitimate scope of the legislative branch's responsibilities, it necessarily follows that such tasks may be per\xc2\xad\nformed by persons other than officers of the United States. Members of Congress can perform all legitimate leg\xc2\xad\nislative functions and yet are not officers of the United States.\n5 For example, the functions at issue do not involve investigation of alleged violation of the federal criminal\nlaws for the purpose of presenting cases to federal prosecutors or making arrests for such violations. Such federal\nlaw enforcement functions are properly executed by appropriate personnel within the executive branch and could\nnot be performed by an employee detailed to the legislative branch and outside meaningful executive branch su\xc2\xad\npervision.\n6 This is not to say that it would never be legal for detailed Department employees to conduct investigatory work\nfor the committee. Historically, Congress has exercised investigatory power independent of the executive branch\xe2\x80\x99s\nauthority to execute the laws. Provided the investigative work of a pertinent congressional committee constitutes a\nlegitimate legislative function, participation of a detailed Department of Justice employee in such an investigation\nwould not violate the Constitution. We note, however, that an investigatory assignment during a congressional de\xc2\xad\ntail may exacerbate the separation of powers and ethical considerations discussed here because of the potential over\xc2\xad\nlap between investigatory work performed by Congress and the Department's investigatory work on the same or a\nrelated matter. To avoid such conflicts, Department officials should avoid detailing employees to congressional\ncommittees when the committee work involves activities that may interfere or overlap with the Department\xe2\x80\x99s in\xc2\xad\nvestigatory efforts.\n\n187\n\n\x0cBeyond this general conflict, there is the specific problem of preserving the\nconfidentiality of executive branch information. In the course of his work in the\nexecutive branch a law enforcement agent has access to privileged information,\nsuch as information relating to open law enforcement files, national security, and\nthe deliberative process within the executive branch. Placing such an employee\nin a position in which his work will be related to his former duties in the execu\xc2\xad\ntive branch, but in which he will be under the daily supervision of legislative\nbranch officials, obviously creates risks that such information may be improp\xc2\xad\nerly or inadvertently shared with the legislative branch.\n///. Ethical Considerations\nAny requests for such details should also be examined for potential conflicts\nof interest under applicable professional codes of ethics. In the 1977 opinion dis\xc2\xad\ncussing the legality and propriety of detailing Department of Justice attorneys to\ncongressional committees, we noted that such details may raise potential ethical\nproblems under such codes. For example, a Department attorney on congressional\ndetail might rely on information he had received in confidence while working at\nthe Department, implicating Canon 4 of the American Bar Association Model\nCode of Professional Responsibility, which provides that \xe2\x80\x9c[a] lawyer should pre\xc2\xad\nserve the confidences and secrets of a client.\xe2\x80\x9d7\nAlthough federal law enforcement agents are not guided by a formal code of\nethics similar to the American Bar Association\xe2\x80\x99s Code of Professional Respon\xc2\xad\nsibility, the potential for conflict of interest addressed in our 1977 opinion re\xc2\xad\ngarding the detail of Department attorneys could pose similar problems with re\xc2\xad\nspect to detailed law enforcement agents. A particularly embarrassing problem\ncould arise if a congressional committee sponsoring the Department detail was\nconsidering or advancing legislation that the Department opposed.\nIn order to reduce the possibility of any conflicts of interest arising from con\xc2\xad\ngressional details of Department employees, we recommend that each proposal\nfor such a detail be examined closely for potential conflicts. This examination\nshould involve a close review of the pertinent committee\xe2\x80\x99s official mandate. In\naddition, the committee should be asked to provide a specific description of the\nwork that the agent would be handling while on the detail. Finally, to avoid any\nquestions concerning their proper roles, agents should be reminded, prior to start\xc2\xad\ning their details, that although they continue to be Department of Justice em\xc2\xad\nployees during the course of the detail, their new employer is a separate entity\nwithin another branch of government that does not have access as a matter of\ncourse to Department of Justice information, files, and documents.\n7 In the 1977 opinion, we also observed that because the attorney theoretically would be returning to the De\xc2\xad\npartment at the conclusion of the detail, it is reasonable that he would, while working for the committee, tend to\nadvance positions taken by the Department if the occasion arose. Because the attorney might not be able to ade\xc2\xad\nquately represent the interests of both the Department and the subcommittee, Canon 7 of the Model Code of Pro\xc2\xad\nfessional Responsibility could be implicated. 1 Op. O.L.C. at 108-09 Canon 7 slates that \xe2\x80\x9c[a] lawyer should rep\xc2\xad\nresent a client zealously within the bounds of the law.\xe2\x80\x9d\n\n188\n\n\x0cConclusion\nWe conclude that the details of Department personnel to congressional com\xc2\xad\nmittees described above are statutorily authorized provided the agreements are\nreimbursable. We also conclude that the arrangements as proposed do not vio\xc2\xad\nlate the principle of separation of powers as long as the details are advisory in\nnature and involve functions not required by the Constitution to be performed by\nan \xe2\x80\x9cofficer\xe2\x80\x9d of the United States. Nonetheless, because of the substantial policy\nand ethical concerns such details raise, we believe the Department should con\xc2\xad\nsider a reimbursable detail only after a careful examination of the functions to be\nperformed and consideration of the conflicts likely to arise. Accordingly, the De\xc2\xad\npartment should accede to a request for an assignment to a congressional com\xc2\xad\nmittee only when the assignment may be performed by a person other than an\n\xe2\x80\x9cofficer\xe2\x80\x9d of the United States and when there are particularly compelling policy\nreasons for the assignment that outweigh the concerns raised here. Moreover,\nshould a detail be authorized, the Department should emphasize to detailed per\xc2\xad\nsonnel the nature of their ethical responsibilities as Department of Justice em\xc2\xad\nployees, which exist notwithstanding their assignments to congressional com\xc2\xad\nmittees.\nD ouglas\n\nW. K m ie c\n\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n189\n\n\x0c"


b'S. 421, A Bill to Require the Comptroller General\nto Ascertain Increases in the Cost of\nMajor Acquisition Programs of Civilian Agencies and\nto Limit the Expenditure of\nFederal Funds to Carry Out Those Programs\nProposed legislation, if construed to give the Com ptroller General, a legislative officer, discre\xc2\xad\ntionary authority to review Executive Branch acquisition programs and to cut off funds to\nthose program s, w ould violate the constitutional principle o f the separation of powers.\n\nSeptember 23, 1983\nM\n\nem orandum\n\nO p in io n\nO f f ic e\n\nfor th e\nof\n\nA s s is t a n t A t t o r n e y G e n e r a l ,\n\nL e g is l a t iv e A f f a ir s\n\nThis responds to your request for the comments of this Office on S. 421,\nwhich establishes a procedure for reporting cost overruns on major civil acqui\xc2\xad\nsition programs and requires a cutoff of government funding whenever an over\xc2\xad\nrun exceeds 25 percent of the initial cost estimate. Section 2(a) of the bill states:\nThe Comptroller General shall be responsible for ascertaining\nincreases in the cost of each major civil acquisition program and\ncompiling statistics on such increases. Such statistics shall be\ncompiled from data submitted to the Comptroller General under\nsection 3 and from data collected by the Comptroller General in\nthe process of carrying out audits and reviews authorized by law.\nSection 3 of the bill authorizes the Comptroller General to require submission\nof reports on major civil acquisition programs carried out by various govern\xc2\xad\nment agencies.1The reports to the Comptroller General must include a descrip\xc2\xad\ntion of the acquisition program, the initial cost estimate for the program,\nestimated total cost of the program as of the date of the report, the total amount\nof funds authorized, appropriated, and obligated, the estimated date of comple\xc2\xad\ntion, reasons for any delay in completion, changes in the quantity or size of the\nacquisition program, the reasons for any actual or projected increase in the total\n1 The term \xe2\x80\x9cm ajor c iv il acquisition p ro g ram \xe2\x80\x9d is defined by the bill as any construction, acquisition or\nprocurem ent program (not involving the D epartm ent o f D efense) that is financed entirely with federal funds\nand is estim ated to require an eventual to ta l expenditure exceeding $50,000,000.\n\n162\n\n\x0ccost by more than 25 percent over the initial cost estimate, and actions pro\xc2\xad\nposed to control subsequent increases in costs. Section 4 requires that when the\nComptroller General determines that the actual or estimated cost of a program\nexceeds the initial cost estimate by 25 percent or more, the Comptroller\nGeneral shall transmit notice of this determination to the head of the agency\ninvolved and to Congress. No funds may be obligated or expended on the\nprogram after the date on which the agency receives such notice unless Con\xc2\xad\ngress passes a law that provides for authority to obligate and expend funds.\nIn our view, this procedure, as currently described by the bill, raises signifi\xc2\xad\ncant constitutional questions. In particular, the bill would be a serious breach of\nthe separation of powers if construed to give the Comptroller General discre\xc2\xad\ntionary authority to review Executive Branch programs and, based upon his\nown independent determination, cut off funds to those programs. The President\nhas sole constitutional responsibility for executing the laws adopted by Con\xc2\xad\ngress. Article II of the Constitution states in part that \xe2\x80\x9cthe Executive Power\nshall be vested\xe2\x80\x9d in the President and that the President \xe2\x80\x9cshall take Care that the\nLaws be faithfully executed.\xe2\x80\x9d By virtue of these provisions, all executive\nfunctions must be placed within the Executive Branch under the control and\ndirection of the President. H um phrey\xe2\x80\x99s Executor v. United States, 295 U.S. 602\n(1935); M yers v. United States, 272 U.S. 52 (1926). Congress may not vest\nitself or its appointees with executive powers. Buckley v. Valeo, 424 U.S. 1 (1976).\nThis fundamental principle of constitutional law would be breached if the\nComptroller General were granted executive authority. The Comptroller Gen\xc2\xad\neral is not an Executive Branch official subject to Presidential control; rather,\nthe Comptroller General acts as an advisory arm of Congress. The General\nAccounting Office is by statute made \xe2\x80\x9cindependent of the executive depart\xc2\xad\nments,\xe2\x80\x9d 31 U.S.C. \xc2\xa7 702(a), and Congress has proclaimed that the Comptroller\nGeneral and the GAO are \xe2\x80\x9cpart of the legislative branch of the Government.\xe2\x80\x9d\nReorganization Act of 1949,63 Stat. 205; Reorganization Act of 1945,59 Stat.\n616; see also United States Government Manual 1982/83, at 40; Corwin,\nTenure o f Office and the Removal Power, 27 Colum. L. Rev. 354, 396 (1927).\nTherefore, under the above principles, Congress may vest the Comptroller\nGeneral with authority to assist it in its lawmaking responsibilities, but it may\nnot grant to the Comptroller General executive authority which is not subject to\nthe control of the President. The Department of Justice has previously taken the\nposition before Congress that \xe2\x80\x9cas a general principle of constitutional law the\nCongress may not vest in its agent, the Comptroller General, the Executive\nfunction of enforcing the law.\xe2\x80\x9d Hearings before a Subcomm. o f the House\nComm, on Government O perations on H.R. 12171, 95th Cong., 2d Sess. 72\n(1978) (testimony of Lawrence A. Hammond, Deputy Assistant Attorney\nGeneral, Office of Legal Counsel).\nVesting independent authority in the Comptroller General to require a cutoff\nof federal funding for acquisition programs would clearly constitute an attempt\nto lodge executive authority in an arm of Congress. Reviewing the progress of\nExecutive Branch programs, making a judgment based upon standards estab\xc2\xad\n163\n\n\x0clished by Congress, and taking an action that purports to have binding legal\neffect on whether those programs may continue is unquestionably an exercise\nof executive authority. It would involve the Comptroller General deeply in the\nadministration of the Executive Branch and give him substantial authority over\nthe execution of the law. Therefore, such a procedure would breach the consti\xc2\xad\ntutionally required separation of powers. In short, Congress can no more vest\nthis authority in the Comptroller General than Congress could vest it in its own\ncommittees. See 41 Op. Att\xe2\x80\x99y Gen. 230 (1955); 37 Op. Att\xe2\x80\x99y Gen. 56 (1933);\ncf. INS v. Chadha, 462 U.S. 919 (1983).*\nThis does not mean, of course, that Congress may not by law regulate\nprocurement by the Executive Branch. For example, Congress certainly could\nrequire that an agency cease spending on an acquisition program if the agency\ndetermined that expenditures would exceed the initial estimate by 25 percent.\nThe problem in this case is not the particular requirement that Congress wishes\nto impose, but rather the mechanism for enforcing that requirement. The\nrequirement is within Congress\xe2\x80\x99 power to impose, but its execution must\nremain within the Executive Branch under the control of the President.\nTherefore, if the statute were adopted as now drafted this Office would\nconstrue the statute, in order to be consistent with the Constitution, as giving\nthe Comptroller General only a ministerial role in transmitting to Congress\ndeterminations made by executive agencies. Thus, funding could be cut off\nonly if an executive agency determined in its report that expenditures would\nexceed the initial estimate by 25 percent or more. The Comptroller General\nwould have no independent authority to make such a binding determination and\nwould simply be required to transmit the agency\xe2\x80\x99s report to Congress.\nHowever, if Congress wishes to proceed with this legislation, we urge that it\nbe amended to make it clear that the Comptroller General\xe2\x80\x99s role is purely\nministerial and that the determinative reports will be made by the executive\nagencies involved. In particular, \xc2\xa7 2 of the bill should be deleted and the bill\nshould explicitly describe the timing and content of the reports required to be\nfiled by the executive agencies. This Office objects to the bill unless it is\namended to make this point clear.\nL a r r y L . S im m s\n\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n* N O TE: Sub seq u en t to the issuance o f this O ffice o f Legal C ounsel opinion, the Suprem e Court\ndeterm ined in Bowsher v. Synar, 478 U .S . 714, 732-33 (1986), that the C om ptroller General is an agent o f\nC ongress, an d therefore cannot be vested with functions that \xe2\x80\x9cplainly entaii[] execution o f the law in\nconstitu tio n al term s.\xe2\x80\x99*\n\n164\n\n\x0c'


b'Compliance of Direct Recording Electronic Voting\nSystems With Help America Vote Act and\nAmericans With Disabilities Act\nA direct recording electronic voting system that produces a contemporaneous paper record, which is\nnot accessible to sight-impaired voters but which allows sighted voters to confirm that their ballots\naccurately reflect their choices before the system officially records their votes, would be consistent\nwith the Help America Vote Act and with title II of the Americans with Disabilities Act, so long as\nthe voting system provides a similar opportunity for sight-impaired voters to verify their ballots\nbefore those ballots are finally cast.\n\nOctober 10, 2003\n\nMEMORANDUM OPINION FOR THE\nPRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL\nCIVIL RIGHTS DIVISION\nThis memorandum responds to your Office\xe2\x80\x99s request of August 12, 2003, for\nour opinion on whether a direct recording electronic (\xe2\x80\x9cDRE\xe2\x80\x9d) voting system may,\nconsistent with the Help America Vote Act and the Americans with Disabilities\nAct, produce a contemporaneous paper record, not accessible to sight-impaired\nvoters, that allows voters to confirm that their ballots accurately reflect their\nchoices before the system officially records their votes. Based on the information\nyou have provided us, we conclude that this proposed voting system would be\nconsistent with both Acts, so long as the DRE voting system provides a similar\nopportunity for sight-impaired voters to verify their ballots before those ballots are\nfinally cast.1\nI.\nMany states are expanding the use in elections of DRE voting systems, which\nallow voters to enter their choices on an electronic screen in the voting booth. The\nDRE machines also allow a voter to confirm his ballot before it becomes an\nofficially recorded vote by providing a \xe2\x80\x9csummary screen\xe2\x80\x9d listing all of the voter\xe2\x80\x99s\nchoices. After viewing the summary screen, the voter may either cast his ballot or\nelse go back and make corrections. On newer DRE machines, an auditory\ncomponent announces the ballot choices and the contents of the electronic\n\n1\nIn so concluding, we are not sanctioning the use of any particular DRE voting system. Indeed, our\nunderstanding of how such systems will actually work is necessarily limited by the fact that most of\nthem are still at the design stage. The addition (or elimination) of certain features, or their use in\nparticular ways, may result in a voting system that does not provide a similar opportunity for disabled\nvoters to access and participate in the voting system. As explained in greater detail below, such a\nsystem would be inconsistent with the Help America Vote Act.\n\n169\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nsummary screen, allowing sight-impaired voters to verify and cast their ballots\nwithout assistance and in complete privacy.\nIn response to concerns that the DRE voting systems may be vulnerable to\ntampering, the State of California is considering adopting DRE machines that\nwould produce a contemporaneous paper record for each voter in addition to the\nelectronic summary screen. See Letter for Joseph Rich, Voting Section Chief,\nCivil Rights Division, from Randy Riddle, Chief Counsel, California Secretary of\nState (July 8, 2003). This paper record would summarize the voter\xe2\x80\x99s choices, and\nwould be printed before the voter finally casts his ballot. In some cases, the paper\nrecord might also be preserved as a means to count votes in case of a recount or\nelection contest. But in other cases, the paper record would serve solely to inform\nthe voter of his choices before finally casting his ballot\xe2\x80\x94serving the same\nfunction as the DRE electronic summary screen.\nII.\nBecause the paper record produced by the DRE machines in question will not\nbe produced in a format accessible to sight-impaired voters, you have asked for\nour opinion whether such a voting system would violate either the Help America\nVote Act or title II of the Americans with Disabilities Act. We will address each\nstatute in turn.\nA.\nUnder the Help America Vote Act of 2002 (\xe2\x80\x9cHAVA\xe2\x80\x9d), all \xe2\x80\x9cvoting systems\xe2\x80\x9d\nused in an election for federal office must meet specified federal requirements by\nJanuary 1, 2006. See 42 U.S.C. \xc2\xa7\xc2\xa7 15481\xe2\x80\x9315485 (Supp. II 2003). One of these\nrequirements is that voting systems \xe2\x80\x9cshall . . . permit the voter to verify (in a\nprivate and independent manner) the votes selected by the voter on the ballot\nbefore the ballot is cast and counted.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 15481(a)(1)(A)(i). DRE voting\nsystems comply with this mandate by providing a final summary screen before the\nvoter asks the machine to officially record his vote, as well as an auditory\ncomponent that informs sight-impaired and illiterate voters of the summary\nscreen\xe2\x80\x99s contents. The production of a contemporaneous paper record is not\nnecessary for the voting system to comport with section 15481(a)(1)(A)(i), but it\ndoes afford an additional means for a voter to verify his choices before casting his\nvote.\nHAVA further provides that \xe2\x80\x9c[t]he voting system shall . . . be accessible for\nindividuals with disabilities, including nonvisual accessibility for the blind and\nvisually impaired, in a manner that provides the same opportunity for access and\nparticipation (including privacy and independence) as for other voters.\xe2\x80\x9d 42 U.S.C.\n\xc2\xa7 15481(a)(3)(A) (emphasis added). Some may object that sight-impaired voters\nwill have no opportunity to access or use the contemporaneous paper records\n\n170\n\n\x0cDirect Recording Electronic Voting Systems\n\ngenerated by DRE machines, as the paper record is not produced in Braille, and\nthe DRE systems do not currently convert the paper into an audible format\naccessible to the sight-impaired. We do not, however, believe that this feature\ncontravenes section 15481(a)(3)(A).\nWhat section 15481(a)(3)(A) requires is that each \xe2\x80\x9cvoting system\xe2\x80\x9d be accessible to disabled persons in a manner that provides \xe2\x80\x9cthe same opportunity\xe2\x80\x9d for\naccess and participation that other voters have. We will assume for the sake of\nargument that the paper record produced by DRE machines is included as part of\nthe \xe2\x80\x9cvoting system\xe2\x80\x9d as defined in section 15481(b),2 although we note that this is\nnot entirely clear and may depend on precisely what functions the paper record\nserves beyond providing a means for voters to verify their ballots before they are\ncast.3 But even if one indulges this assumption, the statutory issue would not be\n2\n\nSection 15481(b) provides:\nIn this section, the term \xe2\x80\x9cvoting system\xe2\x80\x9d means\xe2\x80\x94\n(1) the total combination of mechanical, electromechanical, or electronic equipment\n(including the software, firmware, and documentation required to program, control,\nand support the equipment) that is used\xe2\x80\x94\n(A) to define ballots;\n(B) to cast and count votes;\n(C) to report or display election results; and\n(D) to maintain and produce any audit trail information; and\n(2) the practices and associated documentation used\xe2\x80\x94\n(A) to identify system components and versions of such components;\n(B) to test the system during its development and maintenance;\n(C) to maintain records of system errors and defects;\n(D) to determine specific system changes to be made to a system after the initial\nqualification of the system; and\n(E) to make available any materials to the voter (such as notices, instructions,\nforms, or paper ballots).\n\n42 U.S.C. \xc2\xa7 15481(b) (emphasis added).\n3\nPaper would appear not to be \xe2\x80\x9cmechanical, electromechanical, or electronic equipment.\xe2\x80\x9d While 42\nU.S.C. \xc2\xa7 15481(b)(1) includes in its reach all \xe2\x80\x9cdocumentation\xe2\x80\x9d used to \xe2\x80\x9csupport\xe2\x80\x9d such equipment, we\ndo not think it likely that a paper record whose sole function is to allow voters to verify their choices\nwould be \xe2\x80\x9cused\xe2\x80\x9d for any of the purposes delineated in section 15481(b)(1)(A)\xe2\x80\x93(D). Another possible\ncategory for such a paper record is section 15481(b)(2)(E), but it is important to emphasize that the\n\xe2\x80\x9cnotices, instructions, forms, or paper ballots\xe2\x80\x9d referred to in section 15481(b)(2)(E) are not themselves\npart of the \xe2\x80\x9cvoting system\xe2\x80\x9d; rather, the \xe2\x80\x9cpractices and associated documentation\xe2\x80\x9d used to make these\nmaterials available to the voter are part of the voting system.\nA paper record that would also be used for auditing purposes in the event of a recount or election\nchallenge is more likely to be part of the \xe2\x80\x9cvoting system\xe2\x80\x9d in section 15481(b)(1), because it would be\nused to \xe2\x80\x9ccount votes,\xe2\x80\x9d 42 U.S.C. \xc2\xa7 15481(b)(1)(B), as well as \xe2\x80\x9cto maintain and produce any audit trail\ninformation,\xe2\x80\x9d id. \xc2\xa7 15481(b)(1)(D).\nThis threshold issue will depend on the precise facts of each voting system, so we leave it for\nanother day and assume, arguendo, that the paper record can be pigeonholed into one of the nine\ncategories listed in 42 U.S.C. \xc2\xa7 15481(b)(1)\xe2\x80\x93(2).\n\n171\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nwhether the paper record is accessible to the sight-impaired, but whether the entire\nDRE voting system is accessible in a manner that provides disabled voters \xe2\x80\x9cthe\nsame opportunity for access and participation\xe2\x80\x9d that other voters enjoy. 42 U.S.C.\n\xc2\xa7 15481(a)(3)(A). We must therefore evaluate a disabled person\xe2\x80\x99s opportunity to\nparticipate in the voting system holistically, rather than scrutinizing his opportunity to access the system\xe2\x80\x99s discrete components or parts.\nFurthermore, the use of the word \xe2\x80\x9csame\xe2\x80\x9d in section 15481(a)(3)(A) does not\nmean \xe2\x80\x9cidentical\xe2\x80\x9d; if HAVA were read to require an identical opportunity for\naccess and participation among non-disabled voters and voters with every type of\ndisability, it would mandate the impossible. A serious disability will necessarily\nresult in a voting experience that differs in some manner from that enjoyed by\nnon-disabled voters. Nothing can be done, for example, to enable blind voters to\nvisually interact with their ballot as sighted voters can. And we do not read HAVA\nto force all sighted persons to use voting technology with no visual dimension\nwhatsoever (such as a voice-activated box that navigates voters through the ballot\nvia a series of audible commands). That approach would not comply with section\n15481(a)(3)(A) because such a voting system, in its efforts to produce \xe2\x80\x9cidentical\xe2\x80\x9d\nopportunities among the sighted and the blind, would be entirely inaccessible to\nthe hearing-impaired. What is more, equating the word \xe2\x80\x9csame\xe2\x80\x9d in section\n15481(a)(3)(A) with \xe2\x80\x9cidentical\xe2\x80\x9d would prohibit the very audio components in\nDRE voting systems that enable the sight-impaired to vote in privacy, because\nvoters with other types of disabilities, such as the hearing-impaired, could not\naccess these accommodations and would therefore lack an identical \xe2\x80\x9copportunity\xe2\x80\x9d\nto participate in the voting system. We therefore construe the word \xe2\x80\x9csame\xe2\x80\x9d to\nmean \xe2\x80\x9csimilar in kind, quality, quantity, or degree.\xe2\x80\x9d See American Heritage\nDictionary of the English Language 1539 (4th ed. 2000). So long as a disabled\nperson can access and participate in the essentials of a voting system\xe2\x80\x94such as the\nability to cast a ballot in privacy with a full opportunity to review the ballot before\ncasting it\xe2\x80\x94his opportunity to access and participate in the voting system is\nsufficiently \xe2\x80\x9csimilar in kind, quality, quantity, or degree\xe2\x80\x9d to that enjoyed by nondisabled persons. The fact that the precise means by which he may access and\nparticipate in those essentials differs from those available to non-disabled persons\ndoes not deprive him of the \xe2\x80\x9csame opportunity\xe2\x80\x9d to participate in the voting\nsystem\xe2\x80\x94if it did, no voting system could ever comply with HAVA.\nSo long as DRE voting systems provide sight-impaired voters with audio\nequipment that enables them to verify their ballots before they are cast, we\nconclude that the provision of a contemporaneous paper record to assist sighted\nvoters in verifying their ballots does not run afoul of HAVA.4 The essentials of\nsuch a voting system\xe2\x80\x94including the ability to verify one\xe2\x80\x99s ballot\xe2\x80\x94are available to\ndisabled and non-disabled voters alike, giving them the \xe2\x80\x9csame opportunity\xe2\x80\x9d for\n4\nThis analysis assumes, of course, that the audio device, the summary screen, and the paper record\nare all reliable methods of verification.\n\n172\n\n\x0cDirect Recording Electronic Voting Systems\n\naccess and participation under section 15481(a)(3)(A). Knowledge of the contents\nof the paper record is simply one of the means by which a sighted voter may verify\nhis ballot before casting it, and DRE voting systems satisfy section 15481(a)(3)(A)\nso long as they provide a comparable means for sight-impaired voters to achieve\nthis essential end.\nIt is true that sighted voters will have more than one method by which they may\nverify their ballot before casting it: they can view both the electronic summary\nscreen as well as the paper record produced by the DRE machine. Sight-impaired\nvoters, by contrast, can only listen to an audio description of the summary screen,\nand have no independent way of knowing the contents of the paper record before\ncasting their vote. Nevertheless, we do not believe that providing a greater number\nof methods by which sighted voters can verify their ballots deprives blind voters of\nthe \xe2\x80\x9csame opportunity\xe2\x80\x9d for access and participation in the voting system, so long\nas the means available to such disabled persons are adequate to ensure similar\naccess to and participation in the essentials of the voting system. The ability to\nverify one\xe2\x80\x99s ballot before casting it is essential, cf. 42 U.S.C. \xc2\xa7 15481(a)(1)(A)(i),\nbut the availability of multiple techniques by which to do so is not. Disability\naccommodations often result in a greater range of methods by which non-disabled\npersons can accomplish their goals, yet such accommodations are not deemed to\ndeny equal opportunities for disabled persons for that reason alone. Consider a\nbuilding that provides both a set of stairs and a wheelchair ramp to its outdoor\nentrance. Non-disabled persons have more means to enter the building (they can\nuse either the stairs or the ramp), while the wheelchair-bound person can use only\nthe ramp. But no one would contend that such a building has deprived disabled\npersons of the \xe2\x80\x9csame opportunity\xe2\x80\x9d to access the building. That is because the\nessential requirement of access\xe2\x80\x94the ability to get to the front door\xe2\x80\x94is available\nto all. The means to achieve that end differ, and non-disabled persons have a\ngreater number of options, but provision of the ramp suffices to provide disabled\npersons with a similar (though not \xe2\x80\x9cidentical\xe2\x80\x9d) opportunity. So too with the DRE\nvoting systems, as you have described them.\nB.\nTitle II of the Americans with Disabilities Act (\xe2\x80\x9cADA\xe2\x80\x9d) provides that \xe2\x80\x9cno\nqualified individual with a disability shall, by reason of such disability, be\nexcluded from participation in or be denied the benefits of the services, programs,\nor activities of a public entity, or be subjected to discrimination by any such\nentity.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 12132 (2000). Only a \xe2\x80\x9cqualified individual with a disability\xe2\x80\x9d\n(\xe2\x80\x9cQID\xe2\x80\x9d)\xe2\x80\x94defined as \xe2\x80\x9can individual with a disability who, with or without\nreasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids\nand services, meets the essential eligibility requirements for the receipt of services\n\n173\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nor the participation in programs or activities provided by a public entity,\xe2\x80\x9d id.\n\xc2\xa7 12131(2)\xe2\x80\x94is protected by title II.\nThe first task is to identify the relevant \xe2\x80\x9cservice,\xe2\x80\x9d \xe2\x80\x9cprogram,\xe2\x80\x9d or \xe2\x80\x9cactivity\xe2\x80\x9d at\nissue. This step is essential, because one cannot be a QID under section 12131(2)\nexcept in relation to a specific \xe2\x80\x9cservice,\xe2\x80\x9d \xe2\x80\x9cprogram,\xe2\x80\x9d or \xe2\x80\x9cactivity.\xe2\x80\x9d A title II\ncomplainant must show that he meets the essential eligibility requirements either\nto receive a \xe2\x80\x9cservice,\xe2\x80\x9d or to participate in a \xe2\x80\x9cprogram\xe2\x80\x9d or \xe2\x80\x9cactivity,\xe2\x80\x9d provided by a\npublic entity. Without such a showing, there can be no violation of section 12132.5\nA title II complainant could plausibly assert that the paper record itself is a\n\xe2\x80\x9cservice\xe2\x80\x9d that blind individuals are eligible to \xe2\x80\x9creceive.\xe2\x80\x9d (The ADA does not\ndefine the term \xe2\x80\x9cservices,\xe2\x80\x9d but we will assume arguendo that \xe2\x80\x9cservices . . .\nprovided by a public entity\xe2\x80\x9d encompass the paper record produced by the DRE\nvoting system.) All voters, disabled or not, receive the paper record any time they\nvote on a DRE machine, so there is no need to explore whether accommodations\nbeyond the realm of reason are necessary to make such persons \xe2\x80\x9celigible\xe2\x80\x9d to\nreceive the paper record. See 42 U.S.C. \xc2\xa7 12131(2). This suffices to establish a\nsight-impaired voter as a QID under section 12131(2), but title II is not breached\nunless the sight-impaired person is either denied the benefits of the paper record,\nor is subjected to discrimination by a public entity. See id. \xc2\xa7 12132.\nTo the extent the paper record provides sighted voters with an opportunity to\ncheck their ballots, this does not deny a benefit to sight-impaired voters, because\nthe DRE machines\xe2\x80\x99 auditory component already provides a means for such voters\nto verify their ballots before casting them. But more importantly, given that all\nvoters were fully capable of confirming their ballot before the advent of paperproducing DRE machines (either by viewing the summary screen, or using the\nmachine\xe2\x80\x99s audio capacity), we do not think the paper record provides any \xe2\x80\x9cbenefit\xe2\x80\x9d at all in this regard. See American Heritage Dictionary 168 (defining \xe2\x80\x9cbenefit\xe2\x80\x9d\nas \xe2\x80\x9can advantage; help; aid\xe2\x80\x9d). We reject any construction of the term \xe2\x80\x9cbenefit\xe2\x80\x9d in\nsection 12132 that includes the provision of a means to accomplish a task that all\npersons could fully and effectively perform without such provision. In cases where\nthe paper record is used by election officials for auditing purposes, this \xe2\x80\x9cbenefit\xe2\x80\x9d\nof the paper record is not withheld from sight-impaired voters\xe2\x80\x94all paper records,\nregardless of the voter\xe2\x80\x99s disability status, would be used in the event of a recount\nor election challenge and would protect the integrity of that voter\xe2\x80\x99s ballot.\n\n5\nAt least one decision from a court of appeals has disclaimed any need to determine whether a\ngovernment function can be characterized as a \xe2\x80\x9cservice,\xe2\x80\x9d \xe2\x80\x9cprogram,\xe2\x80\x9d or \xe2\x80\x9cactivity\xe2\x80\x9d when adjudicating\ntitle II claims. See Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir. 2002) (\xe2\x80\x9cAttempting to\ndistinguish which public functions are services, programs, or activities, and which are not, would\ndisintegrate into \xe2\x80\x98needless hair-splitting arguments.\xe2\x80\x99\xe2\x80\x9d) (citation omitted). For the reasons explained\nabove, this approach cannot be reconciled with the text of title II. Nor can it be reconciled with\nZimmerman v. Oregon Department of Justice, 170 F.3d 1169, 1174\xe2\x80\x9376 (9th Cir. 1999), which Barden\ndid not cite.\n\n174\n\n\x0cDirect Recording Electronic Voting Systems\n\nA sight-impaired voter could also claim that voting is a \xe2\x80\x9cprogram\xe2\x80\x9d or \xe2\x80\x9cactivity\xe2\x80\x9d\nin which he is eligible to participate. See 42 U.S.C. \xc2\xa7 12131(2). But however one\ndefines the \xe2\x80\x9cbenefits\xe2\x80\x9d of voting, we cannot see how the provision of a paper record\ndenies these \xe2\x80\x9cbenefits\xe2\x80\x9d to sight-impaired QIDs. Even if the paper record is utterly\nuseless to sight-impaired voters, those voters still enjoy every \xe2\x80\x9cbenefit\xe2\x80\x9d of voting\nthat they would have had under the non-paper-producing DRE machines. One\nmight contend that our understanding of the \xe2\x80\x9cbenefits\xe2\x80\x9d of voting should vary\ndepending on the technology employed, and that the \xe2\x80\x9cactivity\xe2\x80\x9d of voting on a\npaper-producing DRE machine includes added \xe2\x80\x9cbenefits\xe2\x80\x9d unknown to those voting\non other equipment. But even under this approach, the only conceivable \xe2\x80\x9cbenefit\xe2\x80\x9d\nthat one might claim is denied to sight-impaired voters is the provision of multiple\nmeans by which to verify one\xe2\x80\x99s ballot. For the reasons explained above, we do not\nregard this as a \xe2\x80\x9cbenefit\xe2\x80\x9d under section 12132. The Attorney General has emphasized that section 12132 does not require a public entity to make each of its\nexisting facilities accessible to individuals with disabilities when administering a\nservice, program, or activity, see 28 C.F.R. \xc2\xa7 35.150(a)(1) (2003), which confirms\nour view that the failure to make each and every means of access or participation\navailable to disabled persons is not the \xe2\x80\x9cdenial of a benefit\xe2\x80\x9d under section 12132.\nAs to whether sight-impaired voters are \xe2\x80\x9csubject to discrimination\xe2\x80\x9d by a public\nentity that uses the DRE voting system: the DRE machines indeed treat sightimpaired voters differently, as they must engage an auditory component while\nvoting, while sighted persons can simply look at the screen. Mere dissimilar\ntreatment, however, does not by itself constitute \xe2\x80\x9cdiscrimination\xe2\x80\x9d under title II. All\ndisability accommodations treat the disabled differently than non-disabled persons,\nbut section 12132 does not prohibit the very accommodations mandated by the\nADA. See 28 C.F.R. \xc2\xa7 35.130(c) (\xe2\x80\x9cNothing in this part prohibits a public entity\nfrom providing benefits, services, or advantages to individuals with disabilities\xe2\x80\x9d).\nRather, to be \xe2\x80\x9csubjected to discrimination\xe2\x80\x9d under section 12132, a QID must not\nonly be treated differently, but the discrimination must also leave the QID worse\noff than if the dissimilar treatment had never occurred. See Olmstead v. Zimring,\n527 U.S. 581, 599\xe2\x80\x93601 (1999) (concluding that unjustified institutional isolation\nof persons with disabilities is \xe2\x80\x9cdiscrimination\xe2\x80\x9d under section 12132 because it\n\xe2\x80\x9cperpetuates unwarranted assumptions that persons so isolated are incapable or\nunworthy of participating in community life\xe2\x80\x9d and \xe2\x80\x9cseverely diminishes the\neveryday life activities of individuals\xe2\x80\x9d). We think that any dissimilar treatment of\nQIDs resulting from a public entity\xe2\x80\x99s decision to use handicapped-accessible\nvoting equipment falls into the category of permissible accommodation, rather\nthan impermissible \xe2\x80\x9cdiscrimination,\xe2\x80\x9d under title II of the ADA.\nSHELDON BRADSHAW\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n175\n\n\x0c'


b'Application of Record Destruction Requirements to\nInformation Received From the National Instant\nCriminal Background Check System\nUnder the laws governing destruction of background check information, the Bureau of Alcohol,\nTobacco, Firearms, and Explosives\xe2\x80\x94which routinely receives and retains certain information from\nthe National Instant Criminal Background Check System whenever the NICS determines that an\nindividual seeking to purchase a firearm may not lawfully receive a firearm\xe2\x80\x94does not have to\ndestroy that information if the NICS later overturns that determination.\n\nJanuary 11, 2005\n\nMEMORANDUM OPINION FOR THE CHIEF COUNSEL\nBUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES\nThe Bureau of Alcohol, Tobacco, Firearms, and Explosives (\xe2\x80\x9cATF\xe2\x80\x9d) routinely\nreceives and retains certain information from the National Instant Criminal\nBackground Check System (\xe2\x80\x9cNICS\xe2\x80\x9d) whenever the NICS determines that an\nindividual seeking to purchase a firearm may not lawfully receive a firearm. You\nhave asked whether, under the laws governing destruction of background check\ninformation, ATF must destroy that information if the NICS later overturns that\ndetermination. 1 We conclude that these laws do not require ATF to do so in such\ncircumstances.\nI.\nThe Brady Handgun Violence Prevention Act (\xe2\x80\x9cBrady Act\xe2\x80\x9d) required the Attorney General to \xe2\x80\x9cestablish a national instant criminal background check system\nthat any licensee may contact . . . for information, to be supplied immediately, on\nwhether receipt of a firearm by a prospective transferee would violate [certain\nfederal laws] or State law.\xe2\x80\x9d Pub. L. No. 103-159, \xc2\xa7 103(b), 107 Stat. 1536, 1541\n(1993). The Attorney General has carried out this mandate by establishing and\nmaintaining the NICS within the Federal Bureau of Investigation (\xe2\x80\x9cFBI\xe2\x80\x9d). See 28\nC.F.R. \xc2\xa7\xc2\xa7 25.1 & 25.3 (2004).\nAnother section of the Brady Act (\xc2\xa7 102(b) (codified at 18 U.S.C. \xc2\xa7 922(t)(1)\n(2000))), requires federally licensed firearms dealers (\xe2\x80\x9cFFLs\xe2\x80\x9d or \xe2\x80\x9clicensees\xe2\x80\x9d) in most\ncases to contact the NICS before selling a firearm to a person. Upon receiving an\ninquiry, the NICS checks certain databases and in the ordinary course immediately\nissues one of two determinations: (1) a \xe2\x80\x9cproceed,\xe2\x80\x9d which indicates that the NICS has\nno information that the firearm transfer would be unlawful, and that the transfer is\n1\n\nSee Memorandum for the Office of Legal Counsel, Department of Justice, from Stephen R.\nRubenstein, Acting Chief Counsel, Bureau of Alcohol, Tobacco, and Firearms, Department of the\nTreasury, Re: Request for an Opinion (undated) (\xe2\x80\x9cATF Opinion Request\xe2\x80\x9d).\n\n17\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nallowed, or (2) a \xe2\x80\x9cdenied,\xe2\x80\x9d which indicates that the person is prohibited from\nreceiving a firearm, and that the transfer is not allowed. See id.; 28 C.F.R. \xc2\xa7\xc2\xa7 25.2 &\n25.6(c)(1) (2004) (defining these terms and describing responses that the NICS may\nprovide); National Instant Criminal Background Check System Regulation, 69 Fed.\nReg. 43,892, 43,897 (July 23, 2004) (\xe2\x80\x9cCurrently, approximately 74 percent of all\ntransactions are completed immediately and approximately 92 percent are completed\nwhile the FFL is still on the telephone with the FBI NICS Section.\xe2\x80\x9d). In some cases,\nhowever, the NICS issues a \xe2\x80\x9cdelayed\xe2\x80\x9d response, indicating that it has been unable to\ndetermine immediately whether or not the transaction may proceed, and that the\ninquiry remains \xe2\x80\x9copen.\xe2\x80\x9d 28 C.F.R. \xc2\xa7\xc2\xa7 25.2 & 25.6(c)(1); see 69 Fed. Reg. at 43,900\xe2\x80\x93\n01 (to be codified at 28 C.F.R. \xc2\xa7 25.9(b)(1)(ii)). But if the NICS has not issued a\ndenial within three business days, the restriction on transfer by the licensee expires.\nSee 18 U.S.C. \xc2\xa7 922(t)(1)(B)(ii). The NICS may, however, continue to investigate\nthe person and subsequently determine that the transfer should not have been\npermitted, in which case it issues a \xe2\x80\x9cdelayed denial.\xe2\x80\x9d\nThe FBI keeps records of all NICS background checks in an automated \xe2\x80\x9caudit\nlog,\xe2\x80\x9d a chronological record of NICS activities that includes, among other\ninformation concerning an inquiry, the name of the potential gun purchaser. 28\nC.F.R. \xc2\xa7 25.9(b)(1) (2004); see 69 Fed. Reg. at 43,900\xe2\x80\x9301 (to be codified at 28\nC.F.R. \xc2\xa7 25.9(b)(1)); see generally NRA v. Reno, 216 F.3d 122 (D.C. Cir. 2000)\n(discussing audit log and upholding it against various challenges). When a denial\nissues, the FBI, pursuant to regulations it has issued under the Privacy Act,\n5 U.S.C. \xc2\xa7 552a (2000), routinely forwards the audit log information for that\ninquiry to ATF\xe2\x80\x99s Brady Operations Branch. \xe2\x80\x9cRoutine Use C\xe2\x80\x9d of the FBI\xe2\x80\x99s Privacy\nAct regulations for the NICS provides:\nIf, during the course of any activity or operation of the system authorized by the regulations governing the system (28 CFR, part 25,\nsubpart A), any record is found by the system which indicates, either\non its face or in conjunction with other information, a violation or\npotential violation of law (whether criminal or civil) and/or regulation, the pertinent record may be disclosed to the appropriate agency/organization/task force . . . charged with the responsibility of investigating, prosecuting, and/or enforcing such law or regulation,\ne.g., disclosure of information from the system to the ATF . . . regarding violations or potential violations of 18 U.S.C. \xc2\xa7 922(a)(6).\n(This routine use does not apply to the NICS Index.)\nPrivacy Act of 1974; Notice of Modified System of Records, 63 Fed. Reg. 65,223,\n65,226\xe2\x80\x9327 (Nov. 25, 1998). Routine Use C was established pursuant to advice\nprovided by this Office, see Brady Act Implementation Issues, 20 Op. O.L.C. 57,\n59\xe2\x80\x9361 (1996), and, as of July 2004, substantially the same language appears in the\nregulations implementing the NICS, 69 Fed. Reg. at 43,901 (to be codified at 28\n\n18\n\n\x0cApplication of Record Destruction Requirements to Information From NICS\n\nC.F.R. \xc2\xa7 25.9(b)(2)(i)); see also id. at 43,895 (\xe2\x80\x9cThis change is consistent with\nRoutine Use C in the NICS Privacy Act Notice\xe2\x80\x9d). When the NICS issues a\nstandard denial (that is, within the three-day period that a firearms licensee must\nwait), ATF\xe2\x80\x99s Brady Operations Branch forwards the audit log information to an\nATF field office for investigation only if it meets certain criteria. However, when\nthe NICS issues a delayed denial, the Operations Branch automatically forwards\nthe information, because of the significant possibility that a person prohibited from\nreceiving a firearm has already done so. In either case, once the audit log information arrives at the field office, an ATF agent opens a case file (of which the\ninformation becomes one part) and commences an investigation. Should ATF\nconcur in the NICS\xe2\x80\x99s conclusion, it may be necessary for ATF to retrieve firearms\nfrom the purchaser.\nIn some instances, the NICS overturns a denial after the FBI has transferred to\nATF the audit log information regarding that denial. The NICS might overturn a\ndenial at any time and for a number of reasons. A change in state law can create a\nlarge number of overturned denials by eliminating a disability that had been based\non state law; in addition, some firearms disabilities, such as certain restraining\norders, are by their nature temporary, see 28 C.F.R. \xc2\xa7 25.9(a). Sometimes new\ninformation indicates that the NICS\xe2\x80\x99s initial denial was incorrect. Or the NICS\nmay simply discover that it made an error. 2 The Brady Act provides an appeal and\ncorrection procedure by which a denied person may challenge a denial that he\nbelieves was in error. Id. \xc2\xa7 103(g), 107 Stat. at 1542; 28 C.F.R. \xc2\xa7 25.10 (2004).\nSeveral laws limit the information that may be retained regarding background\nchecks in general and overturned denials in particular. First, section 922(t)(2) of\ntitle 18 requires that\n[i]f receipt of a firearm would not violate subsection (g) or (n) or\nState law, the system shall\xe2\x80\x94\n(A) assign a unique identification number to the transfer;\n(B) provide the licensee with the number; and\n(C) destroy all records of the system with respect to the call (other\nthan the identifying number and the date the number was assigned) and all records of the system relating to the person or the\ntransfer.\n(Emphasis added.)\nSecond, an appropriations rider contained in section 615 of the Consolidated\nAppropriations Act, 2005, prohibits the use of federal funds for\n2\n\nSee ATF Opinion Request at 1, 8.\n\n19\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nany system to implement subsection 922(t) of title 18, United\nStates Code, that does not require and result in the destruction of\nany identifying information submitted by or on behalf of any person who has been determined not to be prohibited from possessing\nor receiving a firearm no more than 24 hours after the system advises a Federal firearms licensee that possession or receipt of a\nfirearm by the prospective transferee would not violate [18 U.S.C.\n\xc2\xa7 922(g) or \xc2\xa7 922(n)], or State law.\nPub. L. No. 108-447, \xc2\xa7 615(2), 118 Stat. 2809, 2915 (2004). This rider was first\nenacted for fiscal year 2004. See Consolidated Appropriations Act, 2004, Pub. L.\nNo. 108-199, \xc2\xa7 617(a)(2), 118 Stat. 3, 95. In regulations implementing section\n922(t)(2) and the 2004 rider, the Attorney General has provided that, if the NICS\nhas issued a \xe2\x80\x9cproceed,\xe2\x80\x9d the FBI must within 24 hours destroy \xe2\x80\x9call identifying\ninformation submitted by or on behalf of the transferee\xe2\x80\x9d and must within 90 days\ndestroy \xe2\x80\x9c[a]ll other information,\xe2\x80\x9d except the identification number assigned to the\ntransfer and the date that the number was assigned. 69 Fed. Reg. at 43,901 (to be\ncodified at 28 C.F.R. \xc2\xa7 25.9(b)(1)(iii)). If the NICS has issued a denial, the FBI\ndoes not destroy the information. If a NICS inquiry remains open, the NICS may\nretain the information for up to 90 days. See id.\nThird, section 103(i) of the Brady Act (which has not been codified) limits the\nability of the government to retain information in connection with the background\ncheck system that section 103(b) requires the Attorney General to establish, by\nproviding:\nNo department, agency, officer, or employee of the United States\nmay\xe2\x80\x94\n(1) require that any record or portion thereof generated by the system established under this section be recorded at or transferred to\na facility owned, managed, or controlled by the United States or\nany State or political subdivision thereof; or\n(2) use the system established under this section to establish any\nsystem for the registration of firearms, firearm owners, or firearm\ntransactions or dispositions, except with respect to persons, prohibited by section 922(g) or (n) of title 18, United States Code or\nState law, from receiving a firearm.\nBrady Act \xc2\xa7 103(i), 107 Stat. at 1542, reprinted in 18 U.S.C. \xc2\xa7 922 note.\nIn the case of an overturned denial, the NICS would be required to destroy the\nrelevant audit log information (except for the identifying number and the date it\nwas assigned). You have asked whether ATF must do likewise with its copy of\n\n20\n\n\x0cApplication of Record Destruction Requirements to Information From NICS\n\nthat audit log information, previously received from the NICS. You have explained that ATF wishes to maintain its copy in the relevant investigative case file\nso that it may have \xe2\x80\x9ccomplete records of [its] enforcement actions in case those\nactions are later challenged.\xe2\x80\x9d ATF Opinion Request at 9. For example, when ATF\nfiles criminal charges against a denied person or seizes a firearm from a denied\nperson, and then the denial is overturned, that person may challenge ATF\xe2\x80\x99s\nactions. You are concerned that, in such cases, \xe2\x80\x9c[w]ithout the records reflecting the\ninitial NICS denial and the actions that flowed from the initial denial, it will be\ndifficult for ATF to vigorously defend its actions.\xe2\x80\x9d Id.\nII.\nThe laws discussed above do not require ATF to destroy the NICS audit log\ninformation in its case files concerning a denial that NICS has overturned. Section\n922(t)(2)\xe2\x80\x99s requirement that \xe2\x80\x9cthe system\xe2\x80\x9d destroy \xe2\x80\x9call records of the system\xe2\x80\x9d does\nnot require ATF to destroy its copy of this information, because ATF is not and\ndoes not operate \xe2\x80\x9cthe system\xe2\x80\x9d to which this section refers; nor are ATF\xe2\x80\x99s case files\n\xe2\x80\x9crecords of the system.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 922(t)(2). For similar reasons, the appropriations rider does not prevent ATF from keeping its files relating to overturned\ndenials, because such files are not part of \xe2\x80\x9cany system to implement subsection\n922(t).\xe2\x80\x9d 118 Stat. at 2915. Finally, under section 103(i) of the Brady Act, ATF\xe2\x80\x99s\nretention of overturned denial files neither involves a \xe2\x80\x9crequire[ment]\xe2\x80\x9d that any\nthird party transfer records to a government facility nor creates a \xe2\x80\x9csystem for . . .\nregistration.\xe2\x80\x9d 107 Stat. at 1542.\nA.\nThe text of section 922(t)(2) does not impose an obligation upon ATF with\nregard to the case files that you have described. That text obligates only \xe2\x80\x9cthe\nsystem\xe2\x80\x9d to destroy records, and requires the system to destroy only \xe2\x80\x9crecords of the\nsystem\xe2\x80\x9d: When \xe2\x80\x9creceipt of a firearm would not violate [certain federal laws] or\nState law,\xe2\x80\x9d the text states, \xe2\x80\x9cthe system\xe2\x80\x9d must \xe2\x80\x9cassign a unique identification\nnumber,\xe2\x80\x9d \xe2\x80\x9cprovide the licensee with the number,\xe2\x80\x9d and \xe2\x80\x9cdestroy all records of the\nsystem with respect to the call . . . and . . . the person or the transfer.\xe2\x80\x9d 18 U.S.C.\n\xc2\xa7 922(t)(2) (emphases added).\nIn the context of section 922(t) and the closely related section 103 of the Brady\nAct, \xe2\x80\x9cthe system\xe2\x80\x9d is a term of art referring to the NICS\xe2\x80\x94\xe2\x80\x9cthe national instant\ncriminal background check system.\xe2\x80\x9d Id. \xc2\xa7 922(t)(1). Section 922(t)(1) refers to the\nAttorney General\xe2\x80\x99s notification of licensed federal firearms dealers, \xe2\x80\x9cunder section\n103(d) of the Brady . . . Act,\xe2\x80\x9d \xe2\x80\x9cthat the national instant criminal background check\nsystem is established.\xe2\x80\x9d Id. (emphases added). It then prohibits such dealers from\ntransferring a firearm to someone who is not a licensee \xe2\x80\x9cunless . . . before the\ncompletion of the transfer, the licensee contacts the national instant criminal\n\n21\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nbackground check system.\xe2\x80\x9d Id. \xc2\xa7 922(t)(1)(A) (emphases added). It thereafter\nrefers simply to \xe2\x80\x9cthe system\xe2\x80\x9d three times. In context, the meaning must be that\nparticular system named immediately beforehand; the shorthand makes no sense\notherwise. That same shorthand phrase\xe2\x80\x94\xe2\x80\x9cthe system\xe2\x80\x9d\xe2\x80\x94appears in the immediately following section 922(t)(2) at issue here, and it appears in the same context as in\nsection 922(t)(1), referring to the system regarding transfers by firearms licensees.\nIt must therefore be taken to have the same meaning. Later paragraphs of section\n922(t) likewise use \xe2\x80\x9cthe system\xe2\x80\x9d and the fuller phrase (\xe2\x80\x9cthe national instant\ncriminal background check system\xe2\x80\x9d) interchangeably. See id. \xc2\xa7 922(t)(4)\xe2\x80\x93(6). And\nno provision in section 922(t) uses \xe2\x80\x9cthe system\xe2\x80\x9d with any apparent meaning other\nthan to refer to the NICS. Likewise, various provisions of uncodified section 103,\nto which section 922(t) expressly refers, speak simply of \xe2\x80\x9cthe system\xe2\x80\x9d when\ndiscussing requirements for the NICS, see Brady Act \xc2\xa7 103(d), (e), (f) & (i), 107\nStat. at 1541\xe2\x80\x9342, and the Attorney General\xe2\x80\x99s regulations implementing section 103\ndefine \xe2\x80\x9cSystem\xe2\x80\x9d as \xe2\x80\x9cthe National Instant Criminal Background Check System,\xe2\x80\x9d 28\nC.F.R. \xc2\xa7 25.2. See Comm\xe2\x80\x99r v. Lundy, 516 U.S. 235, 250 (1996) (\xe2\x80\x9cidentical words\nused in different parts of the same act are intended to have the same meaning\xe2\x80\x9d)\n(internal quotation omitted).\nThe statutory language and the regulations governing the NICS indicate that an\nentity is included within the NICS if and to the extent that it performs functions\nthat Congress has assigned to \xe2\x80\x9cthe system.\xe2\x80\x9d The \xe2\x80\x9csystem\xe2\x80\x9d that Congress required\nto be established under the Brady Act is one \xe2\x80\x9cthat any licensee may contact, by\ntelephone or by other electronic means in addition to the telephone, for information, to be supplied immediately, on whether receipt of a firearm by a prospective transferee would\xe2\x80\x9d be unlawful. Brady Act \xc2\xa7 103(b), 107 Stat. at 1541. It is\n\xe2\x80\x9ccontact[ed]\xe2\x80\x9d by a licensee, \xe2\x80\x9cassign[s]\xe2\x80\x9d an identification number to the requested\ntransfer, \xe2\x80\x9cprovide[s]\xe2\x80\x9d that number to the licensee, and \xe2\x80\x9cnotifie[s]\xe2\x80\x9d the licensee of a\ndenial. 18 U.S.C. \xc2\xa7 922(t)(1) & (2). Thus, the system includes the FBI\xe2\x80\x99s \xe2\x80\x9cNICS\nOperations Center,\xe2\x80\x9d which \xe2\x80\x9creceives telephone or electronic inquiries from FFLs\nto perform background checks [and] makes . . . determination[s] . . . whether the\nreceipt or transfer of a firearm would be in violation of Federal or state law.\xe2\x80\x9d 28\nC.F.R. \xc2\xa7 25.2. The system also includes state and local law enforcement Points of\nContact\xe2\x80\x94known as POCs\xe2\x80\x94which act as \xe2\x80\x9cintermediar[ies] between an FFL and\nthe federal databases,\xe2\x80\x9d \xe2\x80\x9creceive NICS background check requests from FFLs, . . .\nperform NICS inquiries, determine whether matching records provide information\ndemonstrating that an individual is disqualified [for] possessing a firearm under\nFederal or state law, and respond to FFLs with the results of a NICS background\ncheck.\xe2\x80\x9d Id.; see also id. \xc2\xa7 25.9(d) (describing which \xe2\x80\x9crecords of state and local law\nenforcement units serving as POCs will be subject to the Brady Act\xe2\x80\x99s requirements\nfor destruction\xe2\x80\x9d); NRA, 216 F.3d at 138 (assuming that POCs are part of \xe2\x80\x9cthe\nsystem\xe2\x80\x9d and subject to the Brady Act\xe2\x80\x99s document destruction requirement except\nwhen the information is also subject to state law retention requirements).\n\n22\n\n\x0cApplication of Record Destruction Requirements to Information From NICS\n\nATF is not an element of the NICS and does not perform these functions on\nbehalf of the NICS. ATF is not contacted by FFLs regarding prospective transfers;\ndoes not assign or provide the identification numbers; does not conduct the search\nof records to determine whether prospective transfers would be lawful; does not\nmake those determinations; and does not notify FFLs of such determinations.\nThus, section 922(t)(2), in providing that \xe2\x80\x9cthe system shall\xe2\x80\x9d do certain things,\nincluding destroying certain records regarding approved transfers, imposes no\nobligation on ATF with regard to its case files.\nFurthermore, the materials in ATF\xe2\x80\x99s case files are not \xe2\x80\x9crecords of the system,\xe2\x80\x9d\neven if those files contain information that originated with the NICS and thus\nbegan as such records. That is why, as noted above, the NICS forwards the audit\nlog information to ATF pursuant to regulations allowing certain disclosure of\nNICS records outside of that system and expressly referring to \xe2\x80\x9cdisclosure of\ninformation from the system to the ATF\xe2\x80\x9d\xe2\x80\x94not to movement of records within the\nsystem. 63 Fed. Reg. at 65,227 (emphasis added); see also 69 Fed. Reg. at 43,901\n(to be codified at 28 C.F.R. \xc2\xa7 25.9(b)(2)(i)). ATF field agents who receive the\naudit log information from the NICS (via the Brady Operations Branch) concerning denied transactions open independent case files, of which that information\nconstitutes a part, and the agents use it in conducting their independent investigation. The contents of those files, including information obtained from outside\nATF, thus become records of ATF, not of any originating agency or system of\nrecords. See Privacy Act of 1974; Systems of Records, 68 Fed. Reg. 3551, 3553\n(Jan. 24, 2003) (describing ATF\xe2\x80\x99s \xe2\x80\x9cCriminal Investigation Report System,\xe2\x80\x9d which\nis a system of ATF records for purposes of the Privacy Act, and which includes\nagents\xe2\x80\x99 case files); ATF Opinion Request at 7 (\xe2\x80\x9c\xe2\x80\x98Case Files (Investigative Files)\xe2\x80\x99\n[are] \xe2\x80\x98records . . . maintained at the field division as a result of investigations of\nviolations of Federal alcohol, tobacco, and firearms and explosives statutes and\nother investigations required by law.\xe2\x80\x99\xe2\x80\x9d) (quoting ATF Records Control Schedule,\nApril 5, 2002). For this reason as well, section 922(t)(2) does not impose an\nobligation on ATF to destroy information in its case files concerning overturned\ndenials.\nB.\nThe appropriations rider, section 615(2), calls for a similar analysis and conclusion. That provision prohibits the use of federal funds for \xe2\x80\x9cany system to implement subsection 922(t) . . . that does not require and result in the destruction of any\nidentifying information submitted by or on behalf of any person\xe2\x80\x9d not prohibited\nfrom possessing or receiving a firearm, within 24 hours after that determination is\ncommunicated to an FFL. The rider thus prohibits the use of funds for a \xe2\x80\x9csystem\xe2\x80\x9d\nand expressly defines the \xe2\x80\x9csystem\xe2\x80\x9d in question as one implementing section\n922(t). The ATF case files in question, however, even if they constitute a single\n\n23\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\n\xe2\x80\x9csystem\xe2\x80\x9d in some sense, see 68 Fed. Reg. at 3553, are not designed \xe2\x80\x9cto implement\nsubsection 922(t),\xe2\x80\x9d 118 Stat. at 2915. Thus, the rider does not restrict any use of\nfunds by ATF with regard to those files or require ATF to destroy any information\nin those files upon the overturning of a denial by the NICS.\nAs shown above, the only existing \xe2\x80\x9csystem to implement subsection 922(t)\xe2\x80\x9d is\nthe NICS, the system to which section 922(t) itself expressly and exclusively\nrefers. ATF is not a part of the NICS. And even if the rider, by referring to \xe2\x80\x9cany\xe2\x80\x9d\nsystem, might be read to contemplate creation of another implementing system for\nsection 922(t), we see no basis for concluding that the ATF case files are such a\nsystem or that the contents of the ATF files constitute records or information of\nsuch a thing. As you have explained, the purpose of the case files is to facilitate\nATF\xe2\x80\x99s independent investigations in furtherance of its law enforcement duties;\nthey contain \xe2\x80\x9cdocuments relating to [an] investigation.\xe2\x80\x9d ATF Opinion Request at 7\n(quoting ATF Records Control Schedule). Thus, the use of money in furtherance\nof ATF\xe2\x80\x99s work is not use for a system to implement section 922(t).\nNor do we read the rider to require the NICS to ensure the destruction of information possessed by ATF as a condition to the NICS\xe2\x80\x99s use of appropriations.\nWhile the rider is not entirely clear whether it requires the destruction only of\nidentifying information within the system or also requires NICS to reach out and\nensure the destruction of identifying information that has properly been transferred\noutside of the system, the text seems to focus on the internal operations of the\nsystem and thus suggests the former. In our view, it simply creates a specific\ndeadline for destroying certain records already subject to section 922(t)(2)\xe2\x80\x99s\ndestruction requirement; it does not impose a distinct and more far-reaching\ndestruction requirement. This reading harmonizes well with section 922(t)(2),\nwhich already imposes a broad destruction requirement but lacks any deadline for\nsuch destruction.\nThe backdrop against which Congress first passed the rider bolsters this understanding. The duration of the NICS\xe2\x80\x99s retention of its audit log information\nconcerning allowed transactions had been a subject of litigation and repeated\nregulatory revision, events of which Congress can be presumed to have been\naware and which it likely intended to address. See NRA, 216 F.3d at 126 (noting\nrevisions); id. at 127\xe2\x80\x9328 (concluding that section 922(t)(2)(C) need not be read to\nrequire immediate destruction of information). Furthermore, at the time Congress\nfirst enacted the rider, the FBI had put Congress on notice that NICS information\nwas being transferred, pursuant to Routine Use C, to entities such as ATF for law\nenforcement purposes. See 63 Fed. Reg. at 65,226\xe2\x80\x9327. In view of this preexisting\nagency practice, had Congress wished to require the destruction of additional\ninformation\xe2\x80\x94outside of \xe2\x80\x9cthe system\xe2\x80\x9d\xe2\x80\x94not already subject to section 922(t)(2)\xe2\x80\x99s\ndestruction requirement, one would expect the rider to have said so simply and\ndirectly.\n\n24\n\n\x0cApplication of Record Destruction Requirements to Information From NICS\n\nFurthermore, the Attorney General, in his implementing regulations for the\nNICS, has likewise interpreted the rider as simply imposing a deadline for carrying\nout section 922(t)(2)\xe2\x80\x99s destruction requirement. Within the section of the regulations concerning retention and destruction of records, he has provided that, for\nNICS audit log records regarding allowed transactions, \xe2\x80\x9call identifying information submitted by or on behalf of the transferee will be destroyed within 24\nhours.\xe2\x80\x9d 69 Fed. Reg. at 43,901 (to be codified at 28 C.F.R. \xc2\xa7 25.9(b)(1)(iii)). In\nissuing this provision, he explained that \xe2\x80\x9c[t]he [rider] simply reduces the record\nretention time for records subject to the Brady Act\xe2\x80\x99s record destruction requirement; it does not expand the records that are subject to the destruction requirement.\xe2\x80\x9d Id. at 43,898; see id. at 43,893 (the rider \xe2\x80\x9caddresses the time within which\nthe NICS is required to destroy certain information\xe2\x80\x9d) (emphasis added). For the\nreasons we have given, even if the rider could reasonably be read otherwise, the\nAttorney General\xe2\x80\x99s interpretation is reasonable, and it merits deference pursuant to\nChevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984). See id. at\n842\xe2\x80\x9343 (holding that a court must uphold an agency\xe2\x80\x99s interpretation of a statute\nthat it administers unless \xe2\x80\x9cthe intent of Congress is clear\xe2\x80\x9d as to the \xe2\x80\x9cprecise\nquestion at issue\xe2\x80\x9d or the agency\xe2\x80\x99s interpretation is \xe2\x80\x9cunreasonable\xe2\x80\x9d). 3\nC.\nLastly, neither paragraph of section 103(i) of the Brady Act prohibits ATF from\nmaintaining audit log information in a case file in the event of an overturned\ndenial. The first paragraph, section 103(i)(1), prohibits the government from\n\xe2\x80\x9crequir[ing] that any record or portion thereof generated by the system established\nunder this section be recorded at or transferred\xe2\x80\x9d to a government facility. Brady\nAct \xc2\xa7 103(i)(1), 107 Stat. at 1542, reprinted in 18 U.S.C. \xc2\xa7 922 note. In our view,\nthis paragraph forbids the government from requiring third parties, such as\nfirearms dealers, to record certain NICS information at, or transfer it to, a governmental facility. It does not prohibit the government itself from recording that\ninformation. Interpreting section 103(i)(1) to do so would make it impossible to\nsquare this paragraph with other provisions of the Brady Act that authorize, and in\n3\nAn agency\xe2\x80\x99s interpretation of a particular statutory provision \xe2\x80\x9cqualifies for Chevron deference\nwhen it appears that Congress delegated authority to the agency generally to make rules carrying the\nforce of law and that the agency interpretation claiming deference was promulgated in the exercise of\nthat authority.\xe2\x80\x9d United States v. Mead Corp., 533 U.S. 218, 226\xe2\x80\x9327 (2001). Congress has delegated\nauthority to the Attorney General generally to make rules carrying the force of law in this area, see 18\nU.S.C. \xc2\xa7 926(a) (2000) (providing authority to promulgate rules regarding chapter of 18 U.S.C. that\nincludes section 922), and also has required that he make rules with regard to the NICS, see Brady Act\n\xc2\xa7 103(h), 107 Stat. at 1542 (requiring the Attorney General to \xe2\x80\x9cprescribe regulations to ensure the\nprivacy and security of the information of the system established under this section\xe2\x80\x9d). In NRA, 216 F.3d\nat 126\xe2\x80\x9327, the D.C. Circuit recognized the Attorney General\xe2\x80\x99s authority under Chevron to interpret\nsection 922(t), to which the rider expressly relates, and Chevron applies to an agency\xe2\x80\x99s construction of\nits appropriations bill, see Kimberlin v. Dep\xe2\x80\x99t of Justice, 318 F.3d 228, 231\xe2\x80\x9332 (D.C. Cir. 2003).\n\n25\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nsome cases require, the government to make records of NICS transactions. For\nexample, section 103(g) requires the Attorney General to entertain challenges to,\nand to correct, certain \xe2\x80\x9crecords of the system.\xe2\x80\x9d 107 Stat. at 1542. Section 103(i)(2)\npermits the NICS to establish a firearms registry \xe2\x80\x9cwith respect to persons prohibited . . . from receiving a firearm.\xe2\x80\x9d Id. And 18 U.S.C. \xc2\xa7 922(t)(2)(C) requires the\nNICS, for allowed transactions, to \xe2\x80\x9cdestroy all records of the system . . . other than\nthe identifying number and the date the number was assigned.\xe2\x80\x9d (Emphasis added.)\nThese provisions, which contemplate the government\xe2\x80\x99s requiring its employees to\ncreate records at a government facility, preclude reading section 103(i)(1) to\nimpose a restriction on the government, as opposed to third parties. In addition,\nNICS checks could not even be processed without the system temporarily\nrecording information about a proposed transaction. This is the interpretation to\nwhich the Attorney General has adhered in litigation and that the D.C. Circuit has\nfound not unreasonable. See NRA, 216 F.3d at 131 (holding that paragraph (1)\ndoes not unambiguously prohibit the government from recording NICS information in an audit log, and crediting the Attorney General\xe2\x80\x99s interpretation). For\nthe reasons given, we concur in that interpretation. Thus, section 103(i)(1) does\nnot prohibit ATF from maintaining audit log information in its case files.\nSection 103(i) next, in its second paragraph, provides that the government may\nnot \xe2\x80\x9cuse [the NICS] to establish any system for the registration of firearms,\nfirearm owners, or firearm transactions or dispositions, except with respect to\npersons prohibited . . . from receiving a firearm.\xe2\x80\x9d Brady Act \xc2\xa7 103(i)(2), 107 Stat.\nat 1542. As you have explained ATF\xe2\x80\x99s actions, ATF is not implementing any\n\xe2\x80\x9csystem for . . . registration.\xe2\x80\x9d The purpose of ATF\xe2\x80\x99s retention of the audit log\ninformation in independent case files appears to be a bona fide effort to facilitate\nATF\xe2\x80\x99s carrying out of its law enforcement duties, not any purpose of \xe2\x80\x9cregistration\nof firearms, firearms owners, or firearm transactions or dispositions.\xe2\x80\x9d Nor does a\n\xe2\x80\x9csystem for . . . registration\xe2\x80\x9d appear at all likely to be a result of ATF\xe2\x80\x99s practice.\nYou have explained that the number of records in question\xe2\x80\x94those involving \xe2\x80\x9cthe\nsmall number of cases where denials were overturned and independent case files\nwere opened\xe2\x80\x9d\xe2\x80\x94represents only \xe2\x80\x9ca minute fraction of the audit log.\xe2\x80\x9d ATF Opinion\nRequest at 11. Yet the audit log as a whole has been held by the D.C. Circuit\n(correctly in our view) not to be unambiguously prohibited by section 103(i)(2)\nbecause, among other things, it \xe2\x80\x9crepresents only a tiny fraction of the universe of\nfirearm owners\xe2\x80\x9d and, given that it only records requests for transfers, does not\neven indicate whether an \xe2\x80\x9capproved gun purchaser[] actually completed a\ntransaction.\xe2\x80\x9d NRA, 216 F.3d at 131. It is true that information in the case files\nconcerning an overturned denial will be retained for a much longer period than\ninformation in the audit log concerning an approved transaction\xe2\x80\x94at the time of\nthe NRA decision, the latter was retained for six months; now, it is retained for no\nmore than 90 days or, in some cases, 24 hours\xe2\x80\x94but given the small number of\nATF records at issue, we see no reason to reach a contrary conclusion.\n\n26\n\n\x0cApplication of Record Destruction Requirements to Information From NICS\n\nIII.\nAccordingly, and based on our understanding of the facts as presented, we\nconclude that nothing contained in the laws discussed above prohibits ATF from\nretaining in its case files NICS audit log information concerning an overturned\ndenial. Please let us know if we may provide any further assistance.\nC. KEVIN MARSHALL\nActing Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n27\n\n\x0c'