b'Authority of the Environmental Protection\nAgency to Indemnify Its Employees\nThe Environmental Protection Agency may use funds appropriated to the agency for\n\xe2\x80\x9cSalaries and Expenses" to indemnify its employees for personal liability arising from\nactions taken within the scope of their official duties.\n\nFebruary 1, 1989\nM emorandum O pin io n for t h e G eneral C ounsel\nE nvironmental P rotection A gency\n\nThis responds to your request for the opinion of this Office concerning\nthe authority of the Environmental Protection Agency (\xe2\x80\x9cEPA\xe2\x80\x9d) to indem\xc2\xad\nnify its employees for personal liability arising from actions taken within\nthe scope of their official duties.1 The memorandum accompanying the\nrequest concludes that the EPA may indemnify its employees with funds\nappropriated to the agency for \xe2\x80\x9cSalaries and Expenses.\xe2\x80\x9d2 For the reasons\nstated below, we agree that the EPA may use these appropriated funds to\nindemnify its employees for judgments and other liability incurred as a\nresult of official actions.\nAnalysis\n\nAs a general rule, an agency may spend a general appropriation to pay any\nexpense that is necessary or incident to the achievement of the underlying\nobjectives for which the appropriation was made.3 Principles of Federal\n1 Letter for Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, from Francis S.\nBlake, General Counsel, Environmental Protection Agency (Mar. 16, 1988).\n2 Memorandum for Andrew Moran, Assistant General Counsel, General Law and Claims Branch, from\nRay E. Spears, Claims Officer, General Law and Claims Branch (Mar. 12, 1988) (\xe2\x80\x9cEPA Memorandum\xe2\x80\x9d).\n3There are two exceptions to this general rule \xe2\x80\x94 that an agency may not use generally appropriated\nfunds if there is a specific appropriation for that purpose or if the use of appropriated funds for that pur\xc2\xad\npose is prohibited by law. Principles o f Federal Appropriations Law 3-12 (GAO 1st ed 1982), see also 3\nOp. O.L C. 9 (1979) In this instance, neither exception applies There is no specific appropriation to the\nEPA to be used for the indemnification o f its employees See EPA Memorandum at 2 (laws EPA enforces),\nDepartment of Housing and Urban Development \xe2\x80\x94 Independent Agencies Appropriations Act, 1989,\nPub L No 100-404, 102 Stat. 1014, 1022 (1988) (\xe2\x80\x9c1989 Appropriations Act\xe2\x80\x9d) (EPA\xe2\x80\x99s current appropria\xc2\xad\ntion). Nor is there any express statutory prohibition on the use of appropriated funds for the indemnifi\xc2\xad\ncation of EPA employees\n46\n\n\x0cAppropriations Law 3-12 (GAO 1st ed. 1982).4 The EPA, therefore, may use\na general appropriation to indemnify its employees if the Administrator or\nanother responsible official determines that such an expense is necessary\nto achieve the mission of the agency. The nature of an agency\xe2\x80\x99s responsibil\xc2\xad\nities and the provisions of the law appropriating funds to an agency must be\nconsidered together in determining whether it is permissible to use appro\xc2\xad\npriated funds to indemnify employees for personal liability incurred as a\nresult of actions within the scope of an employee\xe2\x80\x99s official duties. For exam\xc2\xad\nple, the special law enforcement duties of the Department of Justice sup\xc2\xad\nport the use of funds appropriated to the Department for the indemnifica\xc2\xad\ntion of its employees.5 Likewise, it has long been the policy of the federal\ngovernment to defend employees who are sued in their individual capacity\nfor actions taken within their official responsibilities.6\nThe EPA Memorandum states that it is necessary for the EPA to indem\xc2\xad\nnify its employees because of the chilling effect the possibility of person\xc2\xad\nal liability has on employees:\nEPA employees are required in their official capacities and as\npart of their official duties to take actions in many areas where\nthere is uncertainty concerning the hazards posed by a partic\xc2\xad\nular situation or where the risks among various remedial\noptions is unclear. In this regard, EPA employees have been\nsued in their individual capacities for such diverse actions as\ngasoline lead inspections and enforcement of pollution dis\xc2\xad\ncharged standards. EPAs ability to effectively ensure the pro\xc2\xad\ntection of the environment depends upon the willingness of its\nemployees to take all required actions. The threat of personal\nliability against an employee for a decision made or action\ntaken as part of official duties can adversely affect EPAs\nachievement of its statutory purposes. The threat of personal\nliability would have a chilling effect on performance of official\nduties and would serve as a substantial impediment to EPAs\nsuccessful accomplishment of its mission.\nEPA Memorandum at 4-5. Therefore, you conclude that \xe2\x80\x9cEPA\xe2\x80\x99s ability to\nindemnify its employees where it determines that the employee was act\xc2\xad\n4The Comptroller General is an officer of the legislative branch, see Bowsher v Synar, 478 U.S. 714,\n727-32 (1986), and, historically, the executive branch has not considered itself bound by the Comptroller\nGeneral\xe2\x80\x99s legal opinions if they conflict with the legal opinions of the Attorney General or the Office of\nLegal Counsel. Nonetheless, the Comptroller General\xe2\x80\x99s opinions can provide guidance on certain techni\xc2\xad\ncal matters, usually in the budget area. In this instance, the Comptroller General\xe2\x80\x99s construction of appro\xc2\xad\npriations law is consistent with our reading of the law.\n5 See Statement of Policy Concerning Indemnification of Department of Justice Employees, 51 Fed.\nReg. 27,021 (1986) (\xe2\x80\x9cDOJ Indemnification Policy\xe2\x80\x9d).\nGSee, e.g , Case o f Captain Wilkes, 9 Op Att\xe2\x80\x99y Gen. 51, 52 (1857); Costs o f Suits Against Officers o f the\nNavy, 5 Op. Att\xe2\x80\x99y Gen. 397 (1851)\n\n47\n\n\x0cing within the scope of official duties and consistent with statute, regula\xc2\xad\ntion and policy, directly contributes to EPA\xe2\x80\x99s ability to carry out effec\xc2\xad\ntively its varied responsibilities. As such, payment of such judgments is a\nnecessary expense of EPA operations.\xe2\x80\x9d Id. at 8. Therefore, where the\nAdministrator or another responsible official has determined that indem\xc2\xad\nnification is necessary, you believe that funds in EPA\xe2\x80\x99s annual general\nappropriation for \xe2\x80\x9cSalaries and Expenses\xe2\x80\x9d may be used by the agency to\nindemnify its employees.\nWe agree that it would be lawful for the Administrator or another respon\xc2\xad\nsible official of EPA to determine that the threat of personal liability stands\nas a mzgor impediment to the effective enforcement of federal environ\xc2\xad\nmental law by EPA employees. \xe2\x80\x9cThe prospect of personal liability, and even\nthe uncertainty as to what conduct may result in a lawsuit against the\nemployee personally, tend to intimidate all employees, impede creativity\nand stifle initiative and decisive action.\xe2\x80\x9d DOJ Indemnification Policy, 51\nFed. Reg. at 27,022. It would be reasonable to determine that an EPA\nemployee might protect his own interest, rather than serving the public\ninterest, because of his concern with the threat of personal liability. This\nwould clearly hinder the EPA in its mission to safeguard the nation\xe2\x80\x99s envi\xc2\xad\nronment. The inhibition of creativity and initiative is especially trouble\xc2\xad\nsome in the context of environmental issues, whose resolution depends in\nsignificant part on innovative solutions to complicated problems in an area\nof rapidly increasing scientific knowledge and ever-changing technology.\nThese factors support your judgment that it is necessary for the EPA to be\nable to protect its employees from the threat of personal liability.\nThe Comptroller General, as you noted, has agreed with our conclusion\nthat general agency funds may appropriately be used to indemnify agency\nemployees for liability arising out of their official duties in certain\ninstances. For example, the Comptroller General concluded that it was\npermissible for the FBI to use appropriated funds to indemnify an\nemployee for a contempt fine imposed when the employee, at the direc\xc2\xad\ntion of the Attorney General, refused to answer questions, 44 Comp. Gen.\n312 (1964), and to indemnify three agents and an informant for attorneys\xe2\x80\x99\nfees assessed in a civil proceeding arising out of a search for illegal\nweapons which resulted in the shooting of two suspects, 59 Comp. Gen.\n489 (1980). Similarly, the General Counsel to the Comptroller General\nconcluded that the Department of the Interior could indemnify three\nemployees who were found personally liable for trespassing because\nthey were acting in the course of official responsibilities which were con\xc2\xad\nsistent with agency policy and had been approved by the United States\nAttorney. B-168571-O.M. (Jan. 27, 1970).7 Not surprisingly, the Comp\xc2\xad\ntroller General recently stated, \xe2\x80\x9cIt has long been our view that the United\n1See Alien v. Merovka, 382 F.2d 589 (10th Cir. 1967), Meivvka v\n(describing the events resulting in the liability).\n\n48\n\nAUen\n\n, 410 F2d 1307 (10th Cir. 1969)\n\n\x0cStates may bear expenses, including court-imposed sanctions, which a\nGovernment employee incurs because of an act done in the discharge of\nhis official duties.\xe2\x80\x9d 59 Comp. Gen. at 493.\nWe agree that the EPA may, if such a determination is made, use its gen\xc2\xad\neral appropriation for \xe2\x80\x9cSalaries and Expenses\xe2\x80\x9d to indemnify an employee.\nThat appropriation is for \xe2\x80\x9cnecessary expenses, not otherwise provided\nfor.\xe2\x80\x9d 1989 Appropriations Act, 102 Stat. at 1022. Once the Administrator\nor other responsible official has determined that the indemnification of\nan employee for personal liability arising from an official action is a nec\xc2\xad\nessary expense, we believe that the \xe2\x80\x9cSalaries and Expenses\xe2\x80\x9d appropria\xc2\xad\ntion is a lawful source of funds for that purpose. Indeed, the Comptroller\nGeneral has approved the use of a similar general appropriation for\n\xe2\x80\x9cSalaries and Expenses\xe2\x80\x9d to indemnify an employee for a contempt fine.\n44 Comp. Gen. at 314 (FBI).\nOf course, the EPA may indemnify an employee only for actions that\nare within the scope of his or her official responsibilities. The determina\xc2\xad\ntion of whether an expense is necessary to accomplish the purposes of an\nagency must be made by the agency itself. We can, of course, express no\nopinion at this point on whether any particular employee actions result\xc2\xad\ning in personal liability may be indemnified by the EPA.\nConclusion\n\nWe believe that you are correct in concluding that the role of the EPA\nin enforcing federal environmental laws requires agency employees to\nhave the latitude to perform their responsibilities without the fear of per\xc2\xad\nsonal liability for actions that Eire found to be within the scope of their\nemployment. Thus, the indemnification of its employees is a necessary\nexpense which the EPA may, in the absence of a specific appropriation\nfor that purpose, fund through its general appropriations. We therefore\nconcur that the annual appropriation to the agency for \xe2\x80\x9cSalaries and\nExpenses\xe2\x80\x9d is a lawful source of funds for the indemnification of employ\xc2\xad\nees by the EPA.\nAs the original letter from your Office noted, the next step will be for\nEPA to promulgate regulations that are consistent with EPA\xe2\x80\x99s statutory\nauthority. Perhaps the Department of Justice regulations may serve as a\nmodel. It is important to do this in a timely fashion so that EPA\xe2\x80\x99s stan\xc2\xad\ndards are in place before any indemnification is granted. Clear standards\nthat are applied in a consistent fashion will ensure that indemnification is\nprovided in as fair a manner as possible.\nD ouglas W. Kmiec\n\nAssistant Attorney General\nOffice of Legal Counsel\n49\n\n\x0c'


b'Effect of Appropriations Rider on Access of DOJ\nInspector General to Certain Protected Information\nSection 540 of the Commerce, Justice, Science, and Related Agencies Appropriations\nAct, 2016, effectively prohibits the Department of Justice, for the remainder of fiscal\nyear 2016, from denying the Department\xe2\x80\x99s Office of the Inspector General (\xe2\x80\x9cOIG\xe2\x80\x9d)\ntimely access to materials requested by OIG, or preventing or impeding OIG\xe2\x80\x99s access\nto such materials, pursuant to the Federal Wiretap Act (Title III of the Omnibus Crime\nControl and Safe Streets Act of 1968); Rule 6(e) of the Federal Rules of Criminal Procedure; or section 626 of the Fair Credit Reporting Act. As a result, the Department\nmay (and must) disregard the limitations in those statutes in making disclosures to OIG\nfor the remainder of the fiscal year.\nApril 27, 2016\n\nMEMORANDUM OPINION FOR THE\nDEPUTY ATTORNEY GENERAL\nYou have asked us to clarify the authority of the Department of Justice\n(the \xe2\x80\x9cDepartment\xe2\x80\x9d) to disclose certain statutorily protected materials to its\nOffice of the Inspector General (\xe2\x80\x9cOIG\xe2\x80\x9d) in light of the enactment of the\nCommerce, Justice, Science, and Related Agencies Appropriations Act,\n2016, Pub. L. No. 114-113, div. B, 129 Stat. 2242, 2286 (2015) (\xe2\x80\x9cCJS\nAppropriations Act\xe2\x80\x9d). 1 In particular, you have asked whether the Department may, in light of that Act, disclose to OIG material protected from\ndisclosure by the Federal Wiretap Act, Title III of the Omnibus Crime\nControl and Safe Streets Act of 1968, as amended, 18 U.S.C. \xc2\xa7\xc2\xa7 2510\xe2\x80\x93\n2522 (\xe2\x80\x9cTitle III\xe2\x80\x9d); Rule 6(e) of the Federal Rules of Criminal Procedure\n(\xe2\x80\x9cRule 6(e)\xe2\x80\x9d); or section 626 of the Fair Credit Reporting Act, 15 U.S.C.\n\xc2\xa7 1681u (\xe2\x80\x9cFCRA\xe2\x80\x9d). As relevant, section 540 of the CJS Appropriations\nAct provides that the Department may not use fiscal year 2016 funds \xe2\x80\x9cto\nSee E-mail for Karl R. Thompson, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Carlos Uriarte, Associate Deputy Attorney General, Re:\nRequest for OLC Opinion (Mar. 9, 2016, 5:16 PM). We requested the views of several\npotentially affected entities, and received the views of OIG and the National Aeronautics\nand Space Administration (\xe2\x80\x9cNASA\xe2\x80\x9d). See E-mail for John E. Bies, Deputy Assistant\nAttorney General, Office of Legal Counsel, from William M. Blier, General Counsel,\nOIG, Re: Solicitation of Views, att. (Mar. 23, 2016, 6:11 PM); E-mail for John E. Bies,\nDeputy Assistant Attorney General, Office of Legal Counsel, from David G. Barrett,\nAssociate General Counsel, NASA, Re: Solicitation of Views (Apr. 6, 2016, 9:41 AM).\n1\n\n39\n\n\x0c40 Op. O.L.C. 39 (2016)\n\ndeny [its] Inspector General . . . timely access to any records, documents,\nor other materials available to the [D]epartment . . . , or to prevent or\nimpede that Inspector General\xe2\x80\x99s access to such records, documents, or\nother materials, under any provision of law, except a provision of law that\nexpressly refers to the Inspector General and expressly limits the Inspector General\xe2\x80\x99s right of access.\xe2\x80\x9d CJS Appropriations Act \xc2\xa7 540, 129 Stat. at\n2332. For the reasons set forth below, we conclude that this provision has\nthe effect of barring the Department, for the remainder of fiscal year\n2016, from denying OIG timely access to requested materials pursuant to\nTitle III, Rule 6(e), or section 626 of FCRA, or from preventing or impeding OIG\xe2\x80\x99s access to such materials. As a result, the Department may (and\nmust) disregard the limitations in those statutes in making disclosures to\nOIG for the remainder of the fiscal year.\nI.\nWe begin with the relevant statutory background and governing legal\nprinciples. With the exception of the subsequently enacted CJS Appropriations Act, these statutes and principles are discussed in depth in this\nOffice\xe2\x80\x99s recent opinion, Access of Department of Justice Inspector General to Certain Information Protected from Disclosure by Statute, 39 Op.\nO.L.C. 12 (2015) (\xe2\x80\x9cIG Access\xe2\x80\x9d).\nThe Inspector General Act of 1978, 5 U.S.C. app. (\xe2\x80\x9cIG Act\xe2\x80\x9d), established an Office of Inspector General in a large number of federal agencies. 5 U.S.C. app. \xc2\xa7\xc2\xa7 2(A), 8G(a)\xe2\x80\x93(b), 12(2). In 1988, Congress extended\nthat Act to the Department and established OIG. See Inspector General\nAct Amendments of 1988, Pub. L. No. 100-504, \xc2\xa7 102(c), (f ), 102 Stat.\n2515, 2515, 2520\xe2\x80\x9321 (codified as amended at 5 U.S.C. app. \xc2\xa7\xc2\xa7 8E, 12(1)\xe2\x80\x93\n(2)). The IG Act grants inspectors general several authorities with respect\nto the agencies within which their offices are established, including, in\nsection 6(a)(1), the authority \xe2\x80\x9cto have access to all records, reports, audits,\nreviews, documents, papers, recommendations, or other material available\nto the applicable establishment which relate to programs and operations\nwith respect to which that Inspector General has responsibilities under\nthis Act.\xe2\x80\x9d 5 U.S.C. app. \xc2\xa7 6(a)(1). Section 8E of the Act qualifies this\nauthority in certain circumstances, providing that the Attorney General\nmay \xe2\x80\x9cprohibit the Inspector General from carrying out or completing any\naudit or investigation, or from issuing a subpoena . . . if the Attorney\n40\n\n\x0cEffect of Appropriations Rider on Access of DOJ Inspector General to Information\n\nGeneral determines that such prohibition is necessary to prevent the\ndisclosure\xe2\x80\x9d of certain sensitive materials. Id. \xc2\xa7 8E(a)(2). On its face, the\nIG Act thus \xe2\x80\x9crequires the Department to disclose \xe2\x80\x98all\xe2\x80\x99 materials [requested\nby OIG] that are available to the Department, relate to an OIG review of\nprograms or operations within its investigative jurisdiction, and are not\ncovered by a determination to withhold them under section 8E.\xe2\x80\x9d IG Access, 39 Op. O.L.C. at 20.\nAs we explained in our IG Access opinion, however, the IG Act is \xe2\x80\x9cnot\nin all circumstances the only statute that governs OIG\xe2\x80\x99s access to Department materials.\xe2\x80\x9d Id. at 19. The three statutes about which you have\nasked\xe2\x80\x94Title III, Rule 6(e), and FCRA\xe2\x80\x94also govern access, including\nOIG\xe2\x80\x99s access, to certain highly sensitive Department materials. Title III\nprovides that an investigative or law enforcement officer \xe2\x80\x9cviolat[es]\xe2\x80\x9d the\nlaw by \xe2\x80\x9cwillful[ly] disclos[ing]\xe2\x80\x9d the contents of a lawfully intercepted\nwire, oral, or electronic communication \xe2\x80\x9cbeyond the extent permitted by\xe2\x80\x9d\nTitle III. 18 U.S.C. \xc2\xa7 2520(g). Rule 6(e) provides that \xe2\x80\x9cattorney[s] for the\ngovernment\xe2\x80\x9d and other persons \xe2\x80\x9cmust not disclose a matter occurring\nbefore [a] grand jury\xe2\x80\x9d\xe2\x80\x94such as testimony that witnesses have delivered in\nconfidential grand jury proceedings\xe2\x80\x94except pursuant to a specific exception. Fed. R. Crim. P. 6(e)(2)(B). And section 626 of FCRA states that the\nFederal Bureau of Investigation (\xe2\x80\x9cFBI\xe2\x80\x9d) \xe2\x80\x9cmay not disseminate\xe2\x80\x9d consumer\ninformation obtained pursuant to a National Security Letter\xe2\x80\x94which may\ninclude private banking and credit information collected from credit\nagencies, frequently without the consumer\xe2\x80\x99s knowledge\xe2\x80\x94except under\ntwo enumerated exceptions. 15 U.S.C. \xc2\xa7 1681u(g).\nThese statutes permit Department officials to disclose covered materials to OIG in \xe2\x80\x9cmost, but not all, of the circumstances in which OIG might\nrequest [them].\xe2\x80\x9d IG Access, 39 Op. O.L.C. at 15; see id. at 21\xe2\x80\x9369 (examining each statute in detail to identify the circumstances in which it permits disclosure to OIG). In particular, Title III and Rule 6(e) allow Department officials to disclose the contents of intercepted communications\nand grand jury materials to OIG in connection with any OIG investigation\nor review that relates to the Department\xe2\x80\x99s criminal law enforcement\nactivities, and section 626 of FCRA allows the FBI to disclose protected\nconsumer information to OIG if the disclosure could assist in the approval\nor conduct of foreign counterintelligence investigations. See id. at 68. But\nthe statutes do not permit disclosures that \xe2\x80\x9chave either an attenuated or no\n41\n\n\x0c40 Op. O.L.C. 39 (2016)\n\nconnection\xe2\x80\x9d with the Department\xe2\x80\x99s criminal law enforcement activities, or\nthe approval or conduct of foreign counterintelligence investigations. Id.\nat 68. Accordingly, if OIG were to request access to protected materials in\none of those limited circumstances in which Title III, Rule 6(e), or section\n626 prohibits their disclosure, Department officials would face potentially\nconflicting statutory commands. On the one hand, the IG Act states that\nDepartment officials must grant OIG access to \xe2\x80\x9call materials\xe2\x80\x9d that OIG\nrequests and that fall within OIG\xe2\x80\x99s investigative jurisdiction; on the other\nhand, Title III, Rule 6(e), and section 626 state, respectively, that officials\nwould \xe2\x80\x9cviolat[e]\xe2\x80\x9d the law by disclosing, \xe2\x80\x9cmust not disclose,\xe2\x80\x9d or \xe2\x80\x9cmay not\ndisseminate\xe2\x80\x9d the requested materials. See id. at 19\xe2\x80\x9320.\nIn our IG Access opinion, we resolved this conflict by applying two\nwell-established legal principles. First, we observed that \xe2\x80\x9cin a range of\ncontexts . . . the Supreme Court and this Office have declined to infer that\nCongress intended to override statutory limits on the disclosure of highly\nsensitive information about which Congress has expressed a special\nconcern for privacy, absent a clear statement of congressional intent to\nthat effect.\xe2\x80\x9d Id. at 70. The Court and this Office had previously concluded\nthat this principle required a clear statement before a statute could be\nconstrued to authorize the disclosure of information protected by Rule\n6(e) or Title III\xe2\x80\x94i.e., confidential material (such as witness testimony)\ndeveloped in the course of grand jury proceedings, or the contents of\nprivate communications lawfully wiretapped by the government. Id. at\n70\xe2\x80\x9371. And we concluded in the IG Access opinion that \xe2\x80\x9cthe logic of\nthese opinions . . . extends to section 626 of FCRA\xe2\x80\x9d as well, given the\n\xe2\x80\x9cstrict duty of confidentiality\xe2\x80\x9d and the \xe2\x80\x9cpenalties for improper disclosure\xe2\x80\x9d\nimposed by section 626, as well as the \xe2\x80\x9chighly sensitive\xe2\x80\x9d nature of the\ninformation section 626 protects\xe2\x80\x94i.e., private consumer banking and\ncredit information obtained by the FBI from credit agencies, frequently\nwithout the consumer\xe2\x80\x99s knowledge. Id. at 73.\nSecond, we invoked the \xe2\x80\x9crule of relative specificity,\xe2\x80\x9d which holds that\n\xe2\x80\x9c\xe2\x80\x98[w]here there is no clear [congressional] intention otherwise, a specific\nstatute will not be controlled or nullified by a general one, regardless of\nthe priority of enactment.\xe2\x80\x99\xe2\x80\x9d Id. at 74 (alterations in original) (quoting\nMorton v. Mancari, 417 U.S. 535, 550\xe2\x80\x9351 (1974)). Title III, Rule 6(e),\nand section 626 of FCRA \xe2\x80\x9caddress with greater specificity\xe2\x80\x9d than the IG\nAct \xe2\x80\x9cthe type of information they regulate,\xe2\x80\x9d \xe2\x80\x9cthe precise conditions under\n42\n\n\x0cEffect of Appropriations Rider on Access of DOJ Inspector General to Information\n\nwhich disclosure\xe2\x80\x9d is permitted, and \xe2\x80\x9cthe lawful recipients of information.\xe2\x80\x9d\nId. at 76\xe2\x80\x9377. Accordingly, we concluded that, like the clear statement\nprinciple pertaining to highly sensitive information, the rule of relative\nspecificity \xe2\x80\x9crequire[d] a clear statement\xe2\x80\x9d before it could be inferred that\n\xe2\x80\x9cthe general right of access granted by section 6(a)(1) [of the IG Act]\ntakes precedence over the specific, carefully delineated limits on disclosure Congress set forth in\xe2\x80\x9d Title III, Rule 6(e), and section 626. Id. at 78.\nApplying these two principles, we concluded that the IG Act does not\ncontain such a clear statement. Id. at 79. The Act, we observed, \xe2\x80\x9cdoes not\nmention\xe2\x80\x9d any of the three withholding statutes, or\ncontain general language addressing potential conflicts with other\nstatutory confidentiality provisions, such as a statement that the inspector general\xe2\x80\x99s right of access shall apply \xe2\x80\x98notwithstanding any\nother law\xe2\x80\x99 or \xe2\x80\x98notwithstanding any statutory prohibition on disclosure\xe2\x80\x99\xe2\x80\x94language that might, at least in some circumstances, provide\na clearer indication that the general access language was supposed to\noverride more specific statutory protections of confidential information.\nId. at 79\xe2\x80\x9380 (citing Brady Act Implementation Issues, 20 Op. O.L.C. 57,\n62 (1996)). Although the IG Act grants inspectors general a right \xe2\x80\x9cto have\naccess to all records\xe2\x80\x9d available to their respective agencies and within\ntheir investigative jurisdiction, the Supreme Court and this Office have\nrepeatedly concluded that \xe2\x80\x9c\xe2\x80\x98expansive modifiers\xe2\x80\x99\xe2\x80\x9d like \xe2\x80\x9call\xe2\x80\x9d and \xe2\x80\x9cany\xe2\x80\x9d do\nnot, on their own, supply the kind of clear statement needed to overcome\ncompeting interpretive presumptions. Id. at 81 (quoting Ali v. Fed. Bureau\nof Prisons, 552 U.S. 214, 220 n.4 (2008)); see id. at 81\xe2\x80\x9382. And while we\nfound \xe2\x80\x9c\xe2\x80\x98plausible\xe2\x80\x99\xe2\x80\x9d OIG\xe2\x80\x99s contention that certain language in section\n6(b)(1) of the IG Act \xe2\x80\x9cimplies that Congress intended access under section 6(a)(1) to be \xe2\x80\x98automatic\xe2\x80\x99 and free of any \xe2\x80\x98existing statutory restriction[s],\xe2\x80\x99\xe2\x80\x9d we ultimately concluded that the \xe2\x80\x9cnegative inference\xe2\x80\x9d that\nOIG identified was not \xe2\x80\x9cunequivocal enough to establish a clear manifestation of congressional intent,\xe2\x80\x9d id. at 83\xe2\x80\x9384, particularly in light of a\nstatement in the Act\xe2\x80\x99s Senate report that each inspector general\xe2\x80\x99s right of\naccess would be \xe2\x80\x9c\xe2\x80\x98subject, of course, to the provisions of other statutes,\nsuch as the Privacy Act,\xe2\x80\x99\xe2\x80\x9d id. at 86 (emphasis omitted) (quoting S. Rep.\nNo. 95-1071, at 33\xe2\x80\x9334 (1978)).\n43\n\n\x0c40 Op. O.L.C. 39 (2016)\n\nOur IG Access opinion also considered whether an appropriations rider\nin the Consolidated and Further Continuing Appropriations Act, 2015,\nPub. L. No. 113-235, 128 Stat. 2130 (2014) (\xe2\x80\x9c2015 Appropriations Act\xe2\x80\x9d),\ngranted OIG access to information otherwise protected from disclosure by\nTitle III, Rule 6(e), or section 626 of FCRA. Section 218 of the 2015\nAppropriations Act stated:\nNo funds provided in this Act shall be used to deny the Inspector\nGeneral of the Department of Justice timely access to all records,\ndocuments, and other materials in the custody or possession of the\nDepartment or to prevent or impede the Inspector General\xe2\x80\x99s access\nto such records, documents and other materials, unless in accordance\nwith an express limitation of section 6(a) of the Inspector General\nAct, as amended, consistent with the plain language of the Inspector\nGeneral Act, as amended. The Inspector General of the Department\nof Justice shall report to the Committees on Appropriations within\nfive calendar days any failures to comply with this requirement.\nId. \xc2\xa7 218, 128 Stat. at 2200. We acknowledged that OIG had made \xe2\x80\x9csubstantial\xe2\x80\x9d arguments that this rider required the Department to grant it\naccess to materials otherwise protected by Title III, Rule 6(e), and section\n626. IG Access, 39 Op. O.L.C. at 92. But we ultimately concluded that the\nrider did not override Title III, Rule 6(e), and section 626 in the limited\ncircumstances in which those statutes bar OIG\xe2\x80\x99s access to protected information.\nWe began our analysis of section 218 by observing that there were \xe2\x80\x9cat\nleast three conceivable constructions of the phrase \xe2\x80\x98express limitation of\nsection 6(a) of the Inspector General Act.\xe2\x80\x99\xe2\x80\x9d Id. at 93. First, this phrase\ncould be interpreted to prohibit Department officials from denying OIG\naccess to materials except under \xe2\x80\x9climitations\xe2\x80\x9d on OIG\xe2\x80\x99s access that \xe2\x80\x9cappear in section 6(a) itself or that expressly refer to that section\xe2\x80\x9d\xe2\x80\x94a reading that would have barred the Department from withholding materials\nfrom OIG under Title III, Rule 6(e), or section 626 of FCRA, as well as\nunder section 8E of the IG Act itself. Id. Second, the provision could be\ninterpreted\xe2\x80\x94as OIG proposed\xe2\x80\x94to refer to \xe2\x80\x9conly those limitations on\ndisclosure that are specifically directed at disclosures to OIG under the IG\nAct, whether or not they explicitly refer to section 6(a).\xe2\x80\x9d Id. This reading\nwould have permitted the Department to withhold records under section\n44\n\n\x0cEffect of Appropriations Rider on Access of DOJ Inspector General to Information\n\n8E, but not under Title III, Rule 6(e), or section 626. Third, the provision\ncould be interpreted to \xe2\x80\x9cencompass all \xe2\x80\x98express\xe2\x80\x99 [statutory] limitations on\ndisclosure that . . . are properly deemed to function as \xe2\x80\x98limitation[s] of\nsection 6(a).\xe2\x80\x99\xe2\x80\x9d Id. Under this reading, the Department would be permitted\nto withhold information under Title III, Rule 6(e), and section 626, as well\nas section 8E of the IG Act. See id.\nWe concluded that the first interpretation, although a natural reading of\nthe phrase \xe2\x80\x9cexpress limitation of section 6(a),\xe2\x80\x9d was untenable. As noted\nabove, this reading would have meant that the rider had implicitly repealed (among other things) section 8E of the IG Act itself, a provision\nthat \xe2\x80\x9cdoes not refer explicitly to section 6(a).\xe2\x80\x9d Id. We thought that result\nimplausible in light of the \xe2\x80\x9cstrong presumption against implied repeals in\nappropriations acts,\xe2\x80\x9d and because other parts of the rider made clear that it\nwas intended to be consistent with the plain language of the Inspector\nGeneral Act. Id.\nHaving found this natural reading of section 218\xe2\x80\x99s key phrase untenable, we went on to consider the second and third readings we had identified. The second interpretation, we noted, required reading the phrase \xe2\x80\x9cin\naccordance with an express limitation of section 6(a) of the [IG Act]\xe2\x80\x9d to\nmean \xe2\x80\x9cin accordance with a limitation that expressly addresses disclosures\nto OIG under the IG Act.\xe2\x80\x9d Id. at 94. Although \xe2\x80\x9cnot the most natural reading of section 218\xe2\x80\x99s text,\xe2\x80\x9d this reading was in our view plausible because\n\xe2\x80\x9csection 6(a) is the principal provision in the IG Act that governs disclosures to OIG.\xe2\x80\x9d Id. The third reading was likewise \xe2\x80\x9creasonably grounded in\nthe statutory text.\xe2\x80\x9d Id. at 95. \xe2\x80\x9cStatutes like Title III, Rule 6(e), and section\n626\xe2\x80\x9d of FCRA, we explained, \xe2\x80\x9ccan be considered \xe2\x80\x98limitations of section 6(a)\xe2\x80\x99 in that they supersede section 6(a) in situations where both\nsection 6(a) and one of those statutes would apply.\xe2\x80\x9d Id. And they can be\nconsidered \xe2\x80\x9cexpress\xe2\x80\x9d limitations because \xe2\x80\x9cthey explicitly contemplate . . .\nnondisclosure in the circumstances they address\xe2\x80\x9d\xe2\x80\x94as opposed to, for\nexample, general statutory provisions that implicitly authorize an agency\nto withhold information, or agency practices grounded in regulations or\nother non-statutory authorities. Id.\nAlthough we thought that both the second and the third readings of section 218 were plausible, we concluded that the third was more consistent\nwith the relevant principles of statutory interpretation. We noted that, in\norder to override the limitations on disclosure imposed by Title III, Rule\n45\n\n\x0c40 Op. O.L.C. 39 (2016)\n\n6(e), and section 626 of FCRA, section 218 would\xe2\x80\x94consistent with the\nprinciples we had discussed earlier\xe2\x80\x94need to \xe2\x80\x9ccontain a clear congressional statement that it was intended to have that effect.\xe2\x80\x9d Id. And while\nthe second reading of the phrase \xe2\x80\x9cexpress limitation of section 6(a)\xe2\x80\x9d was\n\xe2\x80\x9cconsonant with\xe2\x80\x9d certain \xe2\x80\x9cevents surrounding [the rider\xe2\x80\x99s] enactment,\xe2\x80\x9d id.\nat 97, it did not follow clearly from the phrase\xe2\x80\x99s plain language, but rather\n\xe2\x80\x9crequire[d] reading unstated limitations into the rider\xe2\x80\x99s text,\xe2\x80\x9d id. at 95.\nFurther, as noted above, the phrase \xe2\x80\x9cexpress limitation of section 6(a)\xe2\x80\x9d\nwas also susceptible to another plausible reading\xe2\x80\x94the third reading\xe2\x80\x94that\nallowed information to be withheld pursuant to Title III, Rule 6(e), and\nsection 626. As a result, that phrase did not in our view \xe2\x80\x9cconstitute a\nsufficiently clear statement to override the limitations on disclosure imposed by those statutes.\xe2\x80\x9d Id.\nThis conclusion was reinforced by the fact that \xe2\x80\x9csection 218 appear[ed]\nin an appropriations act that post-dates the provisions in Title III, Rule\n6(e) and section 626 of FCRA.\xe2\x80\x9d Id. at 95\xe2\x80\x9396. \xe2\x80\x9c[T]here is a \xe2\x80\x98very strong\npresumption\xe2\x80\x99 that appropriations measures do not \xe2\x80\x98amend substantive\nlaw,\xe2\x80\x99 a presumption that may be overcome only by \xe2\x80\x98unambiguous[]\xe2\x80\x99\nevidence to the contrary.\xe2\x80\x9d Id. at 96 (second alteration in original) (quoting\nCalloway v. Dist. of Columbia, 216 F.3d 1, 9 (D.C. Cir. 2000)); see Tenn.\nValley Auth. v. Hill, 437 U.S. 153, 189\xe2\x80\x9391 (1978). We did not find such\nevidence in section 218, given that it did not \xe2\x80\x9cmention Title III, Rule 6(e),\nor section 626\xe2\x80\x9d or \xe2\x80\x9cstate that the provision [was] intended to amend\nexisting statutes in any way.\xe2\x80\x9d IG Access, 39 Op. O.L.C. at 96. We also\nnoted that the drafters\xe2\x80\x99 general statement that section 218 was \xe2\x80\x9c\xe2\x80\x98designed\nto improve OIG access to Department documents and information\xe2\x80\x99\xe2\x80\x9d was\nconsistent with all of the readings we had considered, including the third\nreading, under which the rider functioned to \xe2\x80\x9creaffirm and reinforce\xe2\x80\x9d the\nexisting disclosure requirements in the IG Act by adding timeliness and\nreporting requirements, and adding the possibility of Anti-Deficiency Act\nconsequences for failure to make required disclosures. Id. at 96\xe2\x80\x9397 (quoting 160 Cong. Rec. H9345 (daily ed. Dec. 11, 2014)).\nSeveral months after we issued the IG Access opinion, Congress enacted the Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, 129\nStat. 2242 (Dec. 18, 2015). Division B of that statute, the CJS Appropriations Act, appropriates funds to the Department of Justice and OIG,\nas well as several additional entities, \xe2\x80\x9cfor the fiscal year ending Sep46\n\n\x0cEffect of Appropriations Rider on Access of DOJ Inspector General to Information\n\ntember 30, 2016,\xe2\x80\x9d commonly referred to as fiscal year 2016. CJS Appropriations Act \xc2\xa7 5, 129 Stat. at 2244; see id. tit. II, 129 Stat. at 2296. Section 540 of the CJS Appropriations Act provides:\nNo funds provided in this Act shall be used to deny an Inspector\nGeneral funded under this Act timely access to any records, documents, or other materials available to the department or agency over\nwhich that Inspector General has responsibilities under the Inspector\nGeneral Act of 1978, or to prevent or impede that Inspector General\xe2\x80\x99s access to such records, documents, or other materials, under\nany provision of law, except a provision of law that expressly refers\nto the Inspector General and expressly limits the Inspector General\xe2\x80\x99s\nright of access. A department or agency covered by this section shall\nprovide its Inspector General with access to all such records, documents, and other materials in a timely manner. Each Inspector General shall ensure compliance with statutory limitations on disclosure\nrelevant to the information provided by the establishment over which\nthat Inspector General has responsibilities under the Inspector General Act of 1978. Each Inspector General covered by this section\nshall report to the Committees on Appropriations of the House of\nRepresentatives and the Senate within 5 calendar days any failures to\ncomply with this requirement.\nId. \xc2\xa7 540, 129 Stat. at 2332. In a joint explanatory statement, the statute\xe2\x80\x99s\ndrafters explained simply that \xe2\x80\x9c[s]ection 540 requires agencies funded by\nthe Act to provide Inspectors General with timely access to information.\xe2\x80\x9d\n161 Cong. Rec. H9745 (daily ed. Dec. 17, 2015); see Consolidated Appropriations Act, 2016 \xc2\xa7 4, 129 Stat. at 2244 (stating that this explanatory\nstatement \xe2\x80\x9cshall have the same effect . . . as if it were a joint explanatory\nstatement of a committee of conference\xe2\x80\x9d).\nII.\nAs we explained in the IG Access opinion (and as discussed above), an\nappropriations act may be construed to override the limitations on disclosure contained in Title III, Rule 6(e), and section 626 of FCRA only if the\nact contains a \xe2\x80\x9c\xe2\x80\x98clear\xe2\x80\x99\xe2\x80\x9d and \xe2\x80\x9c\xe2\x80\x98unambiguous[]\xe2\x80\x99\xe2\x80\x9d statement that Congress\nintended it to have that effect. IG Access, 39 Op. O.L.C. at 97; supra\npp. 45\xe2\x80\x9346. We conclude that section 540 of the CJS Appropriations Act\n47\n\n\x0c40 Op. O.L.C. 39 (2016)\n\ncontains such a clear and unambiguous statement, and therefore that it\neffectively bars the Department from withholding materials from OIG\npursuant to Title III, Rule 6(e), or section 626 for the remainder of fiscal\nyear 2016. As a result, the Department may (and must) disregard the\nlimitations in those statutes in making disclosures to OIG during the\nremainder of that year.\nTo start, there is no question that section 540 on its face imposes a restriction on the Department\xe2\x80\x99s use of fiscal year 2016 funds to deny, prevent, or impede OIG\xe2\x80\x99s access to Department materials. The first part of\nthat provision states that \xe2\x80\x9c[n]o funds provided in this Act shall be used\xe2\x80\x9d to\ndeny, prevent, or impede the access of \xe2\x80\x9can Inspector General funded\nunder this Act\xe2\x80\x9d to materials \xe2\x80\x9cavailable to the department or agency over\nwhich the Inspector General has responsibilities under the Inspector\nGeneral Act of 1978.\xe2\x80\x9d The \xe2\x80\x9cAct\xe2\x80\x9d referred to in section 540 is the CJS\nAppropriations Act, which appropriates funds both to the Department\ngenerally and to OIG specifically for fiscal year 2016. See Consolidated\nAppropriations Act, 2016 \xc2\xa7 3, 129 Stat. at 2244 (\xe2\x80\x9cExcept as expressly\nprovided otherwise, any reference to \xe2\x80\x98this Act\xe2\x80\x99 contained in any division\nof this Act shall be treated as referring only to the provisions of that\ndivision.\xe2\x80\x9d); CJS Appropriations Act tit. II, 129 Stat. at 2296, 2297 (appropriating funds to \xe2\x80\x9cthe Department of Justice,\xe2\x80\x9d including $93,709,000\n\xe2\x80\x9c[f ]or necessary expenses of the Office of Inspector General\xe2\x80\x9d). And the\nDepartment of Justice is the \xe2\x80\x9cdepartment . . . over which\xe2\x80\x9d OIG has responsibilities under the IG Act. See 5 U.S.C. app. \xc2\xa7\xc2\xa7 4(a), 8E(b). Section\n540 thus prohibits the Department from using any \xe2\x80\x9cfunds provided in [the\nCJS Appropriations Act]\xe2\x80\x9d to deny, prevent, or impede OIG\xe2\x80\x99s access to\nmaterials \xe2\x80\x9cavailable to the [D]epartment.\xe2\x80\x9d\nIt is likewise clear that the plain language of this funding restriction\nbars the Department from using fiscal year 2016 funds to withhold materials from OIG pursuant to Title III, Rule 6(e), or section 626 of FCRA.\nSection 540 states that the Department may not use fiscal year 2016 funds\nto deny [OIG] timely access to any records, documents, or other materials available to the [D]epartment . . . , or to prevent or impede\n[OIG\xe2\x80\x99s] access to such records, documents, or other materials, under\nany provision of law, except a provision of law that expressly refers\nto the Inspector General and expressly limits the Inspector General\xe2\x80\x99s\nright of access.\n48\n\n\x0cEffect of Appropriations Rider on Access of DOJ Inspector General to Information\n\nCJS Appropriations Act \xc2\xa7 540 (emphasis added). Title III, Rule 6(e), and\nsection 626 are plainly \xe2\x80\x9cprovision[s] of law.\xe2\x80\x9d See, e.g., Republic of Iraq v.\nBeaty, 556 U.S. 848, 856 (2009) (stating that a federal statute is \xe2\x80\x9cindisputably\xe2\x80\x9d a \xe2\x80\x9cprovision of law\xe2\x80\x9d); Fund for Constitutional Gov\xe2\x80\x99t v. Nat\xe2\x80\x99l\nArchives & Records Serv., 656 F.2d 856, 867 (D.C. Cir. 1981) (stating\nthat Rule 6(e) is \xe2\x80\x9cby any definition . . . a statute\xe2\x80\x9d). By withholding materials pursuant to any of those provisions, the Department would be \xe2\x80\x9cdeny[ing]\xe2\x80\x9d or \xe2\x80\x9cprevent[ing]\xe2\x80\x9d access \xe2\x80\x9cunder\xe2\x80\x9d such provisions. See, e.g.,\nWebster\xe2\x80\x99s New World College Dictionary 1574 (5th ed. 2014) (defining\n\xe2\x80\x9cunder\xe2\x80\x9d in similar context to mean \xe2\x80\x9cbecause of \xe2\x80\x9d); Berghuis v. Thompkins,\n560 U.S. 370, 390 (2010) (referring to \xe2\x80\x9cdeny[ing] writs of habeas corpus\nunder [28 U.S.C.] \xc2\xa7 2254\xe2\x80\x9d (emphasis added)); IG Access, 39 Op. O.L.C.\nat 95 (referring to \xe2\x80\x9cwithholding under Title III, Rule 6(e), and section\n626\xe2\x80\x9d (emphasis added)). And Rule 6(e) and section 626 do not \xe2\x80\x9crefer to[]\xe2\x80\x9d\ninspectors general at all, let alone \xe2\x80\x9cexpressly limit[]\xe2\x80\x9d their access, while\nthe sole provision of Title III that refers to inspectors general does not\nimpose any limit on their right of access. See 18 U.S.C. \xc2\xa7 2520(f ) (requiring the head of a department or agency to \xe2\x80\x9cnotify the Inspector General\nwith jurisdiction over the department or agency\xe2\x80\x9d if the head determines\nthat disciplinary action is not warranted for a violation of Title III, and to\n\xe2\x80\x9cprovide the Inspector General with the reasons for such determination\xe2\x80\x9d).\nFurthermore, by prohibiting the Department from using fiscal year\n2016 funds to withhold materials pursuant to Title III, Rule 6(e), or\nsection 626 of FCRA, the appropriations rider effectively prohibits the\nDepartment from withholding materials pursuant to those statutes for the\nremainder of fiscal year 2016. This is because in order to withhold\nmaterials from OIG during fiscal year 2016, the Department would\ninvariably need to use funds appropriated by the CJS Appropriations\nAct\xe2\x80\x94if nothing else, because withholding would take time for which a\nDepartment employee would be compensated by the CJS Appropriations\nAct, or entail the use of resources (such as electricity, paper, or a computer) funded by the Act. See CJS Appropriations Act tit. II, 129 Stat. at\n2296 (appropriating funds for \xe2\x80\x9csalaries and expenses\xe2\x80\x9d); McHugh v.\nRubin, 220 F.3d 53, 57 (2d Cir. 2000) (\xe2\x80\x9cEven the simple act . . . of processing applications in accordance with a straightforward categorical rule\n(for example, \xe2\x80\x98all applications shall be denied\xe2\x80\x99) would involve the use of\nappropriated funds.\xe2\x80\x9d); Env\xe2\x80\x99t Def. Ctr. v. Babbitt, 73 F.3d 867, 871\xe2\x80\x9372\n49\n\n\x0c40 Op. O.L.C. 39 (2016)\n\n(9th Cir. 1995) (\xe2\x80\x9cThe use of any government resources\xe2\x80\x94whether salaries, employees, paper, or buildings\xe2\x80\x94to accomplish a final listing would\nentail government expenditure.\xe2\x80\x9d). 2 And incurring an obligation of appropriated funds to withhold covered materials might well violate not\nonly section 540 but also the Anti-Deficiency Act, 31 U.S.C. \xc2\xa7 1341 et\nseq., a statute that subjects federal officers and employees who expend\nor obligate funds in excess of appropriated amounts to administrative\nand, in the case of knowing and willful violations, criminal penalties.\nSee id. \xc2\xa7\xc2\xa7 1341(a), 1349(a), 1350; Applicability of the Antideficiency Act\nto a Violation of a Condition or Internal Cap Within an Appropriation,\n25 Op. O.L.C. 33, 35 (2001) (concluding that \xe2\x80\x9cwhen Congress has\nexpressly prohibited the expenditure of any funds for a particular purpose\xe2\x80\x9d within an appropriation, a violation of that condition \xe2\x80\x9cwould\ngenerally constitute a violation of the Antideficiency Act\xe2\x80\x9d).\nMoreover, for at least three reasons, we believe section 540\xe2\x80\x99s prohibition on using fiscal year 2016 funds to withhold these materials from\n\nWe recognize that funds that are not \xe2\x80\x9cprovided in\xe2\x80\x9d the CJS Appropriations Act, such\nas funds held over from a previous fiscal year, are not subject to section 540. CJS Appropriations Act \xc2\xa7 540. And it is possible that some Department employees with custody of\nmaterials OIG requests might be paid with such funds. However, we understand that the\nvast majority of the Department\xe2\x80\x99s salaries and operations are funded by annual appropriations. See, e.g., id. tit. II (appropriating funds for, among other things, \xe2\x80\x9cSalaries and\nExpenses\xe2\x80\x9d for \xe2\x80\x9cGeneral Administration,\xe2\x80\x9d the United States Parole Commission, \xe2\x80\x9cGeneral\nLegal Activities,\xe2\x80\x9d the Antitrust Division, United States Attorneys, the Foreign Claims\nSettlement Commission, the Community Relations Service, the United States Marshals\nService, the National Security Division, the FBI, the Drug Enforcement Administration,\nthe Bureau of Alcohol, Tobacco, Firearms, and Explosives, and the Federal Prison\nSystem). We further understand that these annually appropriated salaries include the\nsalaries of supervisory and senior leadership officials who have general authority to\nobtain access to materials related to matters they supervise, and, in light of section 540,\nthe authority and obligation to obtain such access in order to disclose requested materials\nto OIG without regard to the restrictions in Title III, Rule 6(e), or section 626 of FCRA.\nSee id.; 28 U.S.C. \xc2\xa7\xc2\xa7 509, 510; see also 5 U.S.C. \xc2\xa7 301. Thus, even if OIG requested\nmaterials from the Department in the narrow circumstances in which such materials are\nprotected from disclosure to OIG by Title III, Rule 6(e), or section 626, and even if none\nof the Department employees with custody of those materials were paid with fiscal year\n2016 funds or used resources supported by such funds to process the request, OIG\xe2\x80\x99s\nrequest could always be elevated to a supervisory official who was paid with fiscal year\n2016 funds and had the authority to obtain and disclose the materials notwithstanding the\nrestrictions in Title III, Rule 6(e), or section 626.\n2\n\n50\n\n\x0cEffect of Appropriations Rider on Access of DOJ Inspector General to Information\n\nOIG\xe2\x80\x94unlike the analogous provisions in the IG Act or section 218 of the\n2015 Appropriations Act\xe2\x80\x94is \xe2\x80\x9c\xe2\x80\x98clear\xe2\x80\x99\xe2\x80\x9d and \xe2\x80\x9c\xe2\x80\x98unambiguous[],\xe2\x80\x99\xe2\x80\x9d and therefore satisfies the clear statement rules described in our IG Access opinion.\nIG Access, 39 Op. O.L.C. at 83, 95, 97. First, in our view, the only plausible construction of section 540 is that it forbids the use of fiscal year 2016\nfunds to withhold materials from OIG pursuant to Title III, Rule 6(e), or\nsection 626 of FCRA. As just discussed, section 540 states that the Department may not use such funds to withhold materials from OIG \xe2\x80\x9cunder\nany provision of law\xe2\x80\x9d except a provision that expressly limits inspector\ngeneral access, and under no reasonable construction does that language\npermit the Department to use fiscal year 2016 funds to withhold materials\nunder Title III, Rule 6(e), or section 626. Thus, unlike section 218 of the\n2015 Appropriations Act, section 540 is not \xe2\x80\x9csusceptible to alternative\ninterpretations, one of which would permit withholding under Title III,\nRule 6(e), and section 626,\xe2\x80\x9d and it therefore cannot be construed in a\nmanner consistent with those statutes. Id. at 95; see The Last Best Beef,\nLLC v. Dudas, 506 F.3d 333, 339 (4th Cir. 2007) (stating that where an\nappropriations rider is \xe2\x80\x9cin absolute contradiction with\xe2\x80\x9d an earlier-enacted\nstatute, and an agency \xe2\x80\x9csimply cannot comply simultaneously\xe2\x80\x9d with both\nenactments, the agency is \xe2\x80\x9cbound to follow Congress\xe2\x80\x99s last word on the\nmatter even in an appropriations law\xe2\x80\x9d (internal quotation marks omitted)).\nSecond, unlike both section 218 and the IG Act, section 540 expressly\n\xe2\x80\x9caddress[es] potential conflicts with other statutory confidentiality provisions.\xe2\x80\x9d IG Access, 39 Op. O.L.C. at 80; see id. at 96. It specifies that the\nDepartment may not use fiscal year 2016 funds to \xe2\x80\x9cdeny [OIG] timely\naccess . . . under any provision of law,\xe2\x80\x9d subject to one exception. CJS\nAppropriations Act \xc2\xa7 540. That language is similar to statutory grants of\naccess \xe2\x80\x9cnotwithstanding any other law\xe2\x80\x9d that we have previously found\nsufficient, at least in some circumstances, to override competing limitations on disclosure. See, e.g., Brady Act Implementation Issues, 20 Op.\nO.L.C. at 62 (stating that the Brady Act\xe2\x80\x99s grant of access \xe2\x80\x9cnotwithstanding any other law\xe2\x80\x9d overrides the limitations on disclosure found in the\nPrivacy Act); IG Access, 39 Op. O.L.C. at 79\xe2\x80\x9380. And it confirms that\nCongress specifically intended to override other statutory limitations, and\ndid not merely countermand them inadvertently through broad language.\nCf. Ali, 552 U.S. at 220 n.4 (noting that \xe2\x80\x9ccircumstances may counteract\nthe effect of expansive modifiers\xe2\x80\x9d like \xe2\x80\x9call\xe2\x80\x9d and \xe2\x80\x9cany\xe2\x80\x9d); Hill, 437 U.S. at\n51\n\n\x0c40 Op. O.L.C. 39 (2016)\n\n190 (explaining that the presumption against implied repeals applies with\nspecial force to appropriations acts because otherwise \xe2\x80\x9cevery appropriations measure would be pregnant with prospects of altering substantive\nlegislation\xe2\x80\x9d and legislators would be required \xe2\x80\x9cto review exhaustively the\nbackground of every authorization before voting on an appropriation\xe2\x80\x9d).\nThird, section 540 sets forth only one circumstance in which it would\npermit the Department to use fiscal year 2016 funds to withhold materials\nfrom OIG: where a provision of law \xe2\x80\x9cexpressly refers to the Inspector\nGeneral and expressly limits the Inspector General\xe2\x80\x99s right of access.\xe2\x80\x9d CJS\nAppropriations Act \xc2\xa7 540. That narrow exception would be largely superfluous if section 540 did not otherwise prohibit the Department from\nusing such funds to withhold (and thus, in effect, bar the Department from\nwithholding) materials available to the Department pursuant to statutory\nprovisions. And the inclusion of this one exception implies that Congress\ndid not intend to allow others. See, e.g., Hill, 437 U.S. at 188 (stating that\nbecause Congress \xe2\x80\x9ccreate[d] a number of limited \xe2\x80\x98hardship exemptions\xe2\x80\x99\xe2\x80\x9d\nto the Endangered Species Act, \xe2\x80\x9cwe must presume that these were the\nonly \xe2\x80\x98hardship cases\xe2\x80\x99 Congress intended to exempt\xe2\x80\x9d); cf. IG Access, 39\nOp. O.L.C. at 83\xe2\x80\x9384 (describing as \xe2\x80\x9cplausible\xe2\x80\x9d OIG\xe2\x80\x99s argument that the\nIG Act overrode other statutory prohibitions on disclosure based on a\nnegative inference from section 6(b)(1) of the IG Act, but concluding that\n\xe2\x80\x9cthe inference OIG invoke[d]\xe2\x80\x9d was not sufficiently strong to provide a\n\xe2\x80\x9cclear manifestation of congressional intent\xe2\x80\x9d (internal quotation marks\nomitted)). Moreover, section 8E(a) of the IG Act falls comfortably within\nthe exception\xe2\x80\x99s scope. See 5 U.S.C. app. \xc2\xa7 8E(a)(2) (stating that the Attorney General \xe2\x80\x9cmay prohibit the Inspector General from carrying out or\ncompleting any audit or investigation, or from issuing any subpena, . . . to\nprevent the disclosure of \xe2\x80\x9d certain sensitive information (emphases added)). A straightforward interpretation of section 540 thus does not invite\nthe result we thought \xe2\x80\x9cimplausible\xe2\x80\x9d when construing section 218 of the\n2015 Appropriations Act\xe2\x80\x94namely, an implied partial repeal of a section\nof the IG Act itself. IG Access, 39 Op. O.L.C. at 93.\nFinally, to return to the question you asked, it follows directly from this\nprohibition on withholding that the Department may (and must) disregard\nthe limitations in Title III, Rule 6(e), and section 626 of FCRA when it\nmakes disclosures to OIG. As discussed above, for the remainder of the\nfiscal year, section 540 effectively bars the Department from withholding\n52\n\n\x0cEffect of Appropriations Rider on Access of DOJ Inspector General to Information\n\nmaterials from OIG under Title III, Rule 6(e), or section 626. And in so\ndoing, section 540 effectively overrides the limitations in those statutes\nwith respect to disclosures to OIG during that period. It is therefore plainly permissible\xe2\x80\x94and indeed required\xe2\x80\x94for the Department to disregard\nthose limitations in making disclosures to OIG for the remainder of the\nfiscal year.\nIII.\nFor the foregoing reasons, we conclude that section 540 of the CJS Appropriations Act effectively prohibits the Department, for the remainder\nof fiscal year 2016, from denying OIG timely access to materials requested by OIG, or preventing or impeding OIG\xe2\x80\x99s access to such materials,\npursuant to Title III, Rule 6(e), or section 626 of FCRA. As a result, the\nDepartment may (and must) disregard the limitations in those statutes in\nmaking disclosures to OIG for the remainder of the fiscal year. We note\nthat, upon obtaining materials from the Department, OIG will be required\nto \xe2\x80\x9censure compliance with statutory limitations on disclosure relevant to\nthe information\xe2\x80\x9d contained in those materials. CJS Appropriations Act\n\xc2\xa7 540. We have not considered the nature of the Department\xe2\x80\x99s and OIG\xe2\x80\x99s\nobligations after fiscal year 2016 with respect to materials to which OIG\nobtains access under section 540.\nKARL R. THOMPSON\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n53\n\n\x0c'


b'Exercise of Transfer Authority Under \xc2\xa7 110 of H.J. Res. 370\nT h e substantive au th o n ty granted the S ecretary o f the Treasury by H.J. Res. 370 to transfer funds\nbetw een appropriation accounts is severable from the unconstitutional \xe2\x80\x9ccom m ittee approval\xe2\x80\x9d\nprovision in that law, and m ay be exercised by the Secretary within a reasonable period after he has\ninform ed the A ppropriations C om m ittee o f his intent to do so.\n\nSeptember 2, 1982\nMEMORANDUM FOR THE GENERAL COUNSEL,\nDEPARTMENT OF THE TREASURY\nThis responds to your request for our opinion whether a \xe2\x80\x9ccommittee approval\xe2\x80\x9d\nprovision contained in \xc2\xa7 llO ofPub. L. No. 97-92,95 Stat. 1183,1194(1981), is\nseverable from the substantive authority granted in \xc2\xa7 110 to the Secretary of the\nTreasury to transfer funds between appropriation accounts. For reasons stated\nhereafter, we believe that this substantive transfer authority is severable from the\nunconstitutional \xe2\x80\x9ccommittee approval\xe2\x80\x9d provision. It follows from this conclusion\nthat the substantive transfer authority may be exercised notwithstanding the\nunconstitutionality of the \xe2\x80\x9ccommittee approval\xe2\x80\x9d provision. Thus, the \xe2\x80\x9capproval\xe2\x80\x9d\nof the committee is not, in our view, required in order for the Secretary to exercise\nthe transfer authority; that power may be exercised after appropriate notice to the\nAppropriations Committees has, in the judgment of the Secretary, been given.\nSection 110 was enacted as part of H.J. Res. 370, a joint resolution making\ncontinuing appropriations for many federal departments and agencies that was\nenacted on December 15, 1981. Section 110 reads, in pertinent part, as follows:\n[T]he Secretary of the Treasury is authorized to transfer up to 2 per\ncentum from any appropriation account provided by this joint\nresolution for the Department of the Treasury . . . to any other\nsuch appropriation account: . . . Provided further, That approval\nfor such transfers is obtained in advance from the House and\nSenate Committees on Appropriations.\n95 Stat. 1194. You have informed us that the Secretary of the Treasury, earlier this\nyear, exercised the transfer authority granted by \xc2\xa7 110, with the \xe2\x80\x9capproval\xe2\x80\x9d of the\nHouse and Senate Committees on Appropriations. In addition, the Secretary has,\nby letters to the Committee chairmen of August 27, 1982, informed those\n520\n\n\x0cCommittees of his intent to exercise his power under \xc2\xa7 110 to make certain\ntransfers, indicating in his letters the need to do so by September 2 in order to\ncontinue certain activities in the Internal Revenue Service and the United States\nSecret Service.1The Secretary has, to date, received no response from either of\nthe Committees. The general question presented is whether he may execute the\ntransfers in question, which we assume to be otherwise within the substantive\nauthority granted by \xc2\xa7 110, without having secured \xe2\x80\x9cin advance\xe2\x80\x9d the \xe2\x80\x9capproval\xe2\x80\x9d\nof the Committees.\nWe believe the threshold question which must be addressed is whether the\nsubstantive authority granted in \xc2\xa7 110 is severable from the \xe2\x80\x9ccommittee ap\xc2\xad\nproval\xe2\x80\x9d provision. As you are aware, the Executive has long regarded these kinds\nof \xe2\x80\x9ccommittee approval\xe2\x80\x9d provisions as unconstitutional. See, e.g., 37 Op. Att\xe2\x80\x99y\nGen. 56 (1933); 41 Op. Att\xe2\x80\x99y Gen. 230 (1955); 41 Op. Att\xe2\x80\x99y Gen. 300 (1957).\nIndeed, Presidents Eisenhower and Johnson explicitly instructed their subordi\xc2\xad\nnates to disregard such \xe2\x80\x9ccommittee approval\xe2\x80\x9d provisions in signing into law bills\nthat contained such provisions. See Public Papers of the Presidents, Dwight D.\nEisenhower 688,689 (1955); Public Papers of the Presidents, Lyndon B. Johnson\n104-05 (1963-64).\nIf, however, the \xe2\x80\x9ccommittee approval\xe2\x80\x9d provision is not severable from the\nsubstantive authority to which it is attached, here the transfer authority, then the\ntransfer authority itself may not be exercised by the Secretary. Because the\nSecretary has previously exercised his authority under \xc2\xa7 110, this Administration\nhas, at least implicitly, taken the position that the \xe2\x80\x9ccommittee approval\xe2\x80\x9d provi\xc2\xad\nsion is severable from the Secretary\xe2\x80\x99s substantive authority because if we be\xc2\xad\nlieved the provision were inseverable, then it is doubtful that the Secretary could\nexercise the substantive transfer authority. We believe that position is correct.\nThe courts will generally presume that Congress intends the unconstitutional\nportion of a statute to be severed from the remainder of that statute. See Tilton v.\nRichardson, 403 U.S. 672, 684 (1971) (plurality opinion), quoting NLRB v.\nJones & Laughlin Steel Corp., 301 U.S. 30 (1937) (\xe2\x80\x9c \xe2\x80\x98The cardinal principal of\nstatutory construction is to save and not to destroy.\xe2\x80\x99 \xe2\x80\x9d). Under the law of sever\xc2\xad\nability, the invalid portions of a statute are to be severed \xe2\x80\x9c \xe2\x80\x98[ujnless it is evident\nthat the Legislature would not have enacted those provisions which are within its\npower, independently of that which is n o t. . . .\xe2\x80\x99 \xe2\x80\x9d Buckley v. Valeo, 424 U.S. 1,\n108 (1976), quoting Champlin Refining Co. v. Corporation Commission, 286\nU.S. 210, 234 (1932).\nWe believe the presumption of severability governs the \xe2\x80\x9ccommittee approval\xe2\x80\x9d\nprovision in \xc2\xa7 110 for several reasons. First, we have found no indication in the\nsparse legislative history of the joint resolution that Congress ever focused on the\nquestion whether, assuming the unconstitutionality of the \xe2\x80\x9ccommittee approval\xe2\x80\x9d\nprovision, it would refuse to extend to the Secretary the substantive authority\ncontained in \xc2\xa7 110. Indeed, we have been unable to find any pertinent reference\n1 According to Acting Secretary Sprinkel\xe2\x80\x99s letter, appropriation accounts for these activities will be exhausted on\nor about September 2, 1982.\n\n521\n\n\x0cwhatsoever to \xc2\xa7 110 in that legislative history. See H.R. Rep. 372, 97th Cong.,\n1st Sess. (1981); 127 Cong. Rec. S 14956-96 (daily ed. December 10, 1981);\nid ., H 9102-55. Second, although the literal language of \xc2\xa7 110 assumes that the\nSecretary will have received the \xe2\x80\x9capproval\xe2\x80\x9d of the Committees before he exer\xc2\xad\ncises the transfer authority, we would not read that language as decisive of the\nseverability issue. We would not do so for two separate but related reasons.\nFirst, Congress concededly assumes the constitutionality of such legislative\nveto provisions when it includes them in bills. Thus, there is no reason to believe\nthat such an assumption reflects a congressional determination that it would not\nhave granted the substantive authority if the legislative veto provision is indeed\nunconstitutional. To attribute to Congress such an intent would be to attribute to\nCongress the intent to enact meaningless legislation, because Congress includes\nsuch provisions knowing full well the position of the Executive that such\nprovisions are unconstitutional and at least constructively being on notice that\nextant court decisions, including a decision of the Ninth Circuit decided almost a\nyear before H.J. Res. 370 was enacted, indicate the correctness of the Executive\xe2\x80\x99s\nposition.2\nSecond, and more importantly, there is a long and continuous practice of the\nExecutive\xe2\x80\x99s refusing to regard identical or similar language contained in appro\xc2\xad\npriations acts as being determinative of the severability issue. Indeed, this\nlongstanding view of the Executive, well known to Congress, records the\nExecutive as opposing such \xe2\x80\x9ccommittee approval\xe2\x80\x9d provisions on constitutional\ngrounds and as asserting the right to exercise the substantive power attached to\nthose provisions without first receiving the \xe2\x80\x9capproval\xe2\x80\x9d of the Appropriations\nCommittees.\nThus, in 1955, President Eisenhower, in signing into law the Department of\nDefense Appropriation Act, noted that a section of that Act prohibited use of\nfunds appropriated under it for certain purposes without the approval of the\nAppropriations Committees of the Senate and House. In a signing statement\naddressed to Congress, President Eisenhower stated to Congress that the legis\xc2\xad\nlative veto aspect of that provision \xe2\x80\x9cwill be regarded as invalid by the executive\nbranch of the Government . . .\nPublic Papers of the Presidents, Dwight D.\nEisenhower 688, 689 (1955).\nIn 1963, President Johnson signed into law the Public Works Appropriations\nAct. That Act contained a provision preventing the Panama Canal Company from\ndisposing of any real property without first obtaining the approval of the appro\xc2\xad\npriate legislative committees of the House and Senate. In a signing statement,\nPresident Johnson stated his view that such \xe2\x80\x9ccommittee approval\xe2\x80\x9d provisions\nwere unconstitutional and he stated that the provision was to be treated as \xe2\x80\x9ca\nrequest for information . . .\nPublic Papers of the Presidents, Lyndon B.\n2 Chadha v. INS, 634 F 2d 408 (9th Cir. 1980), Nos. 80-1832(1983) Shortly after enactment of H.J. Res 370, a\ndecision was handed down by the D C. Circuit in Consumer Energy Council c f America v. FERC, 673 F 2d 425\n(1 9 8 1), a case currently pending on appeal to the Supreme Court, in which that court broadly condemned all types of\nlegislative veto devices as unconstitutional. Both Houses of Congress parucipated actively in the litigation of that\ncase as well as Chadha and were thoroughly apprised of the Executive\xe2\x80\x99s position on the constitutional issue\ninvolved.\n\n522\n\n\x0cJohnson 104 (1963-64). President Johnson by separate memorandum directed\nthe Secretary of the Army, entrusted with execution of that provision of the Public\nWorks Appropriations Act, to exercise authority under the Act but to regard the\n\xe2\x80\x9ccommittee approval\xe2\x80\x9d provision as merely requiring the Secretary to keep the\ncongressional committees informed of actions taken under the substantive au\xc2\xad\nthority of that Act.\nMore recently, President Carter signed into law the Foreign Assistance and\nRelated Programs Appropriations Acts of 1977 and 1978 which contained\n\xe2\x80\x9ccommittee approval\xe2\x80\x9d provisions attached to transfer authority virtually identical\nto the \xe2\x80\x9ccommittee approval\xe2\x80\x9d provision in \xc2\xa7 110. At the time he signed those bills\ninto law, President Carter directed the Secretary of State by memorandum to\nregard the \xe2\x80\x9ccommittee approval\xe2\x80\x9d aspects as unconstitutional and, therefore, not\nlegally binding. He directed the Secretary to treat the \xe2\x80\x9ccommittee approval\xe2\x80\x9d\nprovision as requiring only that the appropriate committees be consulted. Subse\xc2\xad\nquently, as detailed in a letter from the General Counsel of the Agency for\nInternational Development to Chairman Inouye of the Subcommittee on Foreign\nOperations of the Senate Committee on Appropriations of February 12, 1980, the\nPresident exercised the transfer authority contained in \xc2\xa7 115 without securing in\nadvance the \xe2\x80\x9capproval\xe2\x80\x9d of the Appropriations Committees. In doing so, the\nPresident acted on the advice of this Office, provided to the Director of the Office\nof Management and Budget on October 28, 1977, that the authority under \xc2\xa7 115\ncould be exercised without the prior approval of the Appropriations Committees.3\nWe believe these historical incidents establish a consistent view of the Ex\xc2\xad\necutive with regard to \xe2\x80\x9ccommittee approval\xe2\x80\x9d provisions in appropriations acts\nthat substantive authority to which such \xe2\x80\x9ccommittee approval\xe2\x80\x9d provisions are\nattached will be exercised and that the \xe2\x80\x9ccommittee approval\xe2\x80\x9d provisions will be\ntreated essentially as requiring only that the committees be informed of action\ntaken or to be taken by the Executive. We have no difficulty in concluding that the\nlanguage of \xc2\xa7 110, without more, cannot be read as expressing a congressional\nintent to overturn this established understanding. In a similar vein, we do not\nbelieve that that plain language can, in this overall historical context, be regarded\nas expressing a congressional intent that the substantive authority granted by\n\xc2\xa7 1 1 0 should fall with the \xe2\x80\x9ccommittee approval\xe2\x80\x9d provision\xe2\x80\x94 in short, the\n\xe2\x80\x9ccommittee approval\xe2\x80\x9d provision is, in our view, severable.\nBased on this same historical practice, we believe the Secretary is entitled to\nexercise his transfer authority under \xc2\xa7 110 within a reasonable period of time\nafter he has informed the Appropriations Committees of his intent to do so. In\npresent circumstances, we believe the Secretary could conclude that the Au\xc2\xad\ngust 27, 1982, letters to the Appropriations Committees chairmen regarding\n3 We note that shortly after this full ainng of the Executive s position that such authority could be exercised\nwithout the prior approval of the Appropriations Committees, those same Committees acted on the Foreign\nAssistance and Related Program Appropriations Act, Pub. L. No. 97-121, 95 Stat. 1647 (1982). In that Act, the\nCommittees and Congress left intact the transfer authonty which had been the subject of contention in 1980. See\n\xc2\xa7 514. 95 Stat. 1655, and \xc2\xa7 523, 95 Stat 1657 (1982)\n\n523\n\n\x0ctransfers currently under consideration provide reasonable notice and that the\nSecretary may execute such transfers as he determines to be appropriate.\nT h e o d o r e B. O lson\n\nAssistant Attorney General\nOffice c f Legal Counsel\n\n524\n\n\x0c'