b'Disclosure of Advisory Committee Deliberative Materials\nT he Federal Advisory C om m ittee Act requires advisory com m ittees to m ake available for public in\xc2\xad\nspection w ritten advisory com m ittee docum ents, including predecisional m aterials such as drafts,\nw orking papers and studies.\nT he disclosure exem ption available to agencies under exem ption 5 o f the Freedom o f Inform ation\nA ct for predecisional docum ents and other privileged m aterials is narrowly lim ited in the context\no f the Federal Advisory C om m ittee Act to privileged inter-agency or intra-agency docum ents p re \xc2\xad\npared by an agency and transm itted to an advisory com m ittee.\n\nApril 29, 1988\nM e m o r a n d u m O p in io n f o r t h e A s s is t a n t A t t o r n e y G e n e r a l\nO f f ic e o f L e g a l P o l ic y\n\nIntroduction and Summary\nThis responds to your request for the views of this Office concerning the ex\xc2\xad\ntent to which exemption 5 of the Freedom of Information Act (\xe2\x80\x9cFOIA\xe2\x80\x9d), 5 U.S.C.\n\xc2\xa7 552, is available to withhold deliberative materials prepared by an advisory\ncommittee that would otherwise be subject to the disclosure requirements of sec\xc2\xad\ntion 10(b) of the Federal Advisory Committee Act, 5 U.S.C. app. I (\xe2\x80\x9cFACA\xe2\x80\x9d).\'\nSection 10(b) provides in pertinent part that \xe2\x80\x9c[s]ubject to section 552 of title 5,\n1\nThis memorandum addresses only exemption 5 of FOIA To the extent one of the other eight statutory ex\xc2\xad\nemptions applies, the covered documents are independently protected from disclosure. We also emphasize both that\nseparation o f powers may preclude Congress from applying FACA to certain advisory groups and that documents\nsubject to the disclosure requirements of section 10(b) may be withheld pursuant to a valid claim o f executive priv\xc2\xad\nilege. We do not here address these constitutional bases for withholding documents but observe that several courts\nhave described the threat posed by a literal reading o f FACA to presidential powers See.e g , National Anti-Hunger\nCoalition v. Executive Comm o f the President\xe2\x80\x99s Private Sector Survey on Cost Control, 557 F. Supp. 524, 530\n(D.D.C.), o ff d and remanded, 711 F.2 d l0 7 1 (D C Cir.), judgm ent amended, 566 F. Supp. 1515 (D.D.C. 1983)\n(FACA is \xe2\x80\x9cobscure, imprecise, and open to interpretations so broad that\nit would threaten to impinge unduly\nupon prerogatives preserved by the separation o f powers doctrine\xe2\x80\x9d); Nader v Baroody, 396 F. Supp 1231, 1234\n(D D.C. 1975), vacated as moot. No 75-1969 (D.C Cir Jan. 10, 1977) (\xe2\x80\x9cNowhere is there an indication that Con\xc2\xad\ngress intended to intrude upon the day-to-day functioning of the presidency___ "). Thus, for example, it is the gov\xc2\xad\nernm ent\xe2\x80\x99s position that the American Bar Association Standing Committee on the Federal Judiciary is not \xe2\x80\x9cuti\xc2\xad\nlized\xe2\x80\x9d by the President and therefore not subject to FACA, o r alternatively, that the application of FACA to the\nABA Committee would unconstitutionally impinge on the President\xe2\x80\x99s exclusive authority to nominate and appoint\nArticle III judges, subject to the advice and consent function o f the Senate. U.S. Const, art. II, \xc2\xa7 2, cl. 2. Washing\xc2\xad\nton Legal Found v. United States Dept, o f Justice, 691 F. Supp. 483 (D D C. 1988) In addition, congressional dis\xc2\xad\nclosure statutes, including FACA, necessarily raise separation o f powers and executive privilege issues as applied\nto communications among the President and his advisors and advice prepared for the President by his advisors See,\ne g ,N ix o n v. G eneralServ Admin. ,433 U.S. 425,441-55 (1977); Soucie v Daw*/, 448 F 2d 1067, 1073 (D.C. Cir.\n1971); National Anti-Hunger Coalition, 557 F. Supp. at 530. Because the operation of presidential powers in the\ncontext of FACA is not the subject o f the present inquiry directed to this Office, the discussion herein is simply\nmeant to be illustrative.\n\n73\n\n\x0cUnited States Code, the records, reports, transcripts, minutes, appendixes, work\xc2\xad\ning papers, drafts, studies, agenda, or other documents which were made avail\xc2\xad\nable to or prepared for or by each advisory committee shall be available for pub\xc2\xad\nlic inspection.\xe2\x80\x9d2 Exemption 5 o f FOIA exempts inter-agency and intra-agency\ndeliberative or predecisional documents from disclosure.3 The issue presented is\nthe scope to be given to exemption 5 in light of section 10(b)\xe2\x80\x99s enumeration of\ndeliberative documents such as working papers and drafts as being specifically\nsubject to disclosure.4\nWe conclude that FACA requires disclosure of written advisory committee\ndocuments, including predecisional materials such as drafts, working papers, and\nstudies.5 The disclosure exemption available to agencies under exemption 5 of\nFOIA for predecisional documents and other privileged materials is narrowly\nlimited in the context of FACA to privileged \xe2\x80\x9cinter-agency or intra-agency\xe2\x80\x9d doc\xc2\xad\numents prepared by an agency and transmitted to an advisory committee. The\nlanguage of the FACA statute and its legislative history support this restrictive\napplication of exemption 5 to requests for public access to advisory committee\n\n2 Section 10(b) o f FACA reads in full:\nSubject to section 552 o f title 5, U nited States Code, the records, reports, transcripts, minutes, ap\xc2\xad\npendixes, working papers, drafts, studies, agenda, or other documents which were made available to\no r prepared for or by each advisory com m ittee shall be available for public inspection and copying at\na single location in the offices of the advisory committee o r the agency to which the advisory com\xc2\xad\nm ittee reports until the advisory committee ceases to exist.\n3 Exemption 5, 5 U.S.C. \xc2\xa7 552(b)(5), provides that the disclosure obligations of FOIA do not \xe2\x80\x9capply to matters\nthat are\xe2\x80\x94\n(5) inter-agency or intra-agency memorandums o r letters which would not be available by law to a\nparty other than an agency in litigation with the agency \xe2\x80\x9d\n4 Public Citizen Litigation Group has also requested DOJ to issue a policy statement clarifying that the deliber\xc2\xad\native process exemption does not \xe2\x80\x9cshield from public scrutiny\xe2\x80\x9d the drafts, working papers, and other deliberative\ndocuments prepared by advisory committees. Public Citizen represented the ACLU in its suit to enjoin the Attor\xc2\xad\nney G eneral\xe2\x80\x99s Commission on Pornography from holding meetings until it released drafts and working papers.\nA C L U v Attorney G eneral\'s Commission on Pornography, D epartment o f Justice, No. 86-0893 (D.D.C. filed Apr.\n3, 1986) Although the Commission initially asserted that the documents were covered by exemption 5 as incor\xc2\xad\nporated by FACA, the parties stipulated a settlement providing for release o f the documents and the suit was with\xc2\xad\ndrawn\ns This Office has not previously addressed this issue directly Soon after FACA was enacted, we noted the po\xc2\xad\ntential conflict between exem ption 5 and section 10, but did not opine on the proper resolution of the issue Mem\xc2\xad\norandum for Dwight A. Ink, Assistant Director, Office o f Management and Budget, from Roger C. Cramton, As\xc2\xad\nsistant Attorney General, Office o f Legal Counsel, Re Treatment o f Exemption 5 o f the Freedom o f Information\nAct in D enying Access to M eetings and Records o f Federal Advisory Committees (Jan. 2, 1973) In 1974, we ad\xc2\xad\nvised the Clemency Board that it was an advisory committee and therefore subject to the disclosure provisions of\nFACA The memorandum by Assistant Attorney General Antonin Scalia identified three potentially applicable\nFOIA exem ptions, but conspicuously did not cite exemption 5. Memorandum for the Clemency Board, from An\xc2\xad\ntonin Scalia, Assistant Attorney General, O ffice o f Legal Counsel (Sept. 24, 1974). In 1982, in the process of ren\xc2\xad\ndering an opinion that activities by staff members on task forces to President\xe2\x80\x99s Pnvate Sector Survey on Cost Con\xc2\xad\ntrol did not fall within the ambit o f FACA, we noted in dicta and without analysis that materials made available to\ncom m ittee had to be m ade available to the public under section 10(b), unless exempted under FOIA, in which case\nit \xe2\x80\x9cneed not be made publicly available under 10(b) o f FACA.\xe2\x80\x9d Memorandum for Fred F. Fielding, Counsel to the\nPresident, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re. President\xe2\x80\x99s Private\nSector Survey on Cost C ontrol at 7 (Nov. 1, 1982) We also opined in 1982 that advisory committee documents are\navailable through FOLA requests made to the supervising agency and that the advisory committee must cooperate,\nbut we did not specifically address the impact o f exemption 5 Memorandum for Fred F. Fielding, Counsel to the\nPresident, from Larry L. Simms, Deputy A ssistant Attorney General, Office o f Legal Counsel, Re: Applicability o f\nthe Freedom o f Information Act to Federal Advisory Committee (Dec. 30, 1982).\n\n74\n\n\x0cdocuments. Moreover, since an advisory committee is not itself an agency, this\nconstruction is supported by the express language of exemption 5 which applies\nonly to inter-agency or intra-agency materials.6\nWe emphasize that despite these conclusions many documents that are part of\nthe advisory committee process will not be subject to disclosure. Section 10(b)\nitself applies only to materials made available to or prepared for or by an advi\xc2\xad\nsory committee established by statute or reorganization plan or established or uti\xc2\xad\nlized by the President or an agency. 5 U.S.C. app. I, \xc2\xa7\xc2\xa7 3(2), 10(b). Accordingly,\nin determining whether a document is to be disclosed the first issue is not whether\nit is subject to an exemption under 5 U.S.C. \xc2\xa7 552 but whether it meets this thresh\xc2\xad\nold definition.\n\nAnalysis\nA. Defining the Class of Documents to which Section 10(b) Applies.\nBy the express terms of section 10(b), deliberative materials, in order to be\nsubject to disclosure, must be \xe2\x80\x9cmade available to or prepared for or by\xe2\x80\x9d an advi\xc2\xad\nsory committee, 5 U.S.C. app. I, \xc2\xa7 10(b), which is established by statute or reor\xc2\xad\nganization plan or \xe2\x80\x9cestablished or utilized by the President\xe2\x80\x9d or an agency. Id.\n\xc2\xa7 3(2)(B) (emphasis added).7 The courts and this Office have construed the con\xc2\xad\ncept of advisory committees established or utilized by the President or an agency\nto preclude section 10(b)\xe2\x80\x99s application to the work prepared by a staff member\nof an advisory committee or a staffing entity within an advisory committee, such\nas an independent task force limited to gathering information, or a subcommit\xc2\xad\ntee of the advisory committee that is not itself established or utilized by the Pres\xc2\xad\nident or agency, so long as the material was not used by the committee as a whole.\nThe reasoning behind the construction of the concept is straightforward:\n[Such staffing entities or subcommittees] do not directly advise\nthe President or any federal agency, but rather provide informa\xc2\xad\ntion and recommendations for consideration to the Committee.\nConsequently, they are not directly \xe2\x80\x9cestablished or utilized\xe2\x80\x9d by\nthe President or any agency . . . .\nSee National Anti-Hunger Coalition, 557 F. Supp. at 529. See also Memoran\xc2\xad\ndum for Fred H. Wybrandt, Chairman, National Crime Information Center Ad\xc2\xad\n\n6 We do not address or express any opinion in this memorandum on the separate issue of the disclosure obliga\xc2\xad\ntions of the agency under FOIA with respect to written materials delivered from an agency advisory committee to\nan agency.\n7 FACA defines an advisory committee as \xe2\x80\x9cany committee, board, commission, council, conference, panel, task\nforce, or other similar group, or any subcommittee or other subgroup thereof, . . which is\xe2\x80\x94 (A) established by\nstatute or reorganization plan, or (B) established or utilized by the President, or (C) established or utilized by one\nor more agencies, in the interest o f obtaining advice or recommendations for the President or one or more agencies\nor officers of the Federal Government.\xe2\x80\x9d 5 U S.C. app I, \xc2\xa7 3(2).\n\n75\n\n\x0cvisory Policy Board, from Douglas W. Kmiec, Deputy Assistant Attorney Gen\xc2\xad\neral, Office of Legal Counsel (Apr. 28,1987) (\xe2\x80\x9cWybrandt Memorandum\xe2\x80\x9d). This\nlimitation on section 10(b)\xe2\x80\x99s disclosure requirement has important practical con\xc2\xad\nsequences. For example, the President established a presidential advisory com\xc2\xad\nmittee, the President\xe2\x80\x99s Private Sector Survey on Cost Control (\xe2\x80\x9cSurvey\xe2\x80\x9d), funded\nby the Department of Commerce, but whose staff had to be paid for by the pri\xc2\xad\nvate sector.8 A non-profit Foundation for the Survey, chaired by members of the\nExecutive Committee, organized the private staff into thirty-six task forces to\ngather information, perform studies, and draft recommendations and reports for\nthe Executive Committee. Based on this structure, the district and appellate courts\nconcluded that the non-profit task forces were not subject to FACA because they\ndid not provide advice directly to the President or any agency, but rather per\xc2\xad\nformed activities analogous to staff work. National Anti-Hunger Coalition, 557\nF. Supp. at 529-30; 711 F.2d at 1075-76.9\nBased on the same reasoning, as well as an exhaustive survey of the FACA\nlegislative history, this Office recently concluded that subcommittees of the Na\xc2\xad\ntional Crime Information Center (\xe2\x80\x9cNCIC\xe2\x80\x9d) Advisory Policy Board are likewise\nnot covered by FACA because they \xe2\x80\x9cperform preparatory work or professional\nstaff functions in aid of, but not displacing, the actual advisory committee func\xc2\xad\ntion performed by the Board.\xe2\x80\x9d Wybrandt Memorandum at 1.10Although each ad\xc2\xad\nvisory committee structure will determine the results in a particular case, the gen\xc2\xad\neral point can be made that FACA compels disclosure of a limited subset of\ninformation, namely the material used by the advisory committee or subgroup\nestablished or utilized by the ultimate decision-maker, which typically will be an\nagency or the President.\nB. The Scope of Exemption 5 in the Context o f Section 10(b)\xe2\x80\x99s Disclosure\nRequirements.\nAssuming that documents are subject to section 10(b), we turn to the scope of\nFO IA \xe2\x80\x99s exemption 5 under FACA. First, it is necessary to presume that Congress\ndid not intend to create an irreconcilable conflict between the two laws; i.e., on\nthe one hand, to protect deliberative advisory committee materials from public\ninspection via exemption 5, but on the other, to order detailed disclosure of all\n\xe2\x80\x9crecords, reports, transcripts, minutes, appendixes, working papers, drafts, stud\xc2\xad\n8 Exec. Order No. 12369, sec. 3(e), 3 C F.R. 190 (1983).\n9 On the other hand, the subcommittee officially established by the Survey was held to be covered by FACA be\xc2\xad\ncause it \xe2\x80\x9cis responsible for reviewing the task force reports and making detailed recommendations to the President\nand the affected federal agencies.\xe2\x80\x9d Notional Anti-Hunger Coalition, 711 F.2d at 1072. The D.C. Circuit panel also\nstates in dictum that if the task force reports were in fact not exhaustively reviewed and revised by the Executive\nCommittee, but were merely rubber-stamped recommendations given little or no independent consideration, it\nwould be within a district court\xe2\x80\x99s power to fin d that the provisions of FACA apply to the task forces as well. Id. at\n1075-76.\n10 As in our prior opinion, however, \xe2\x80\x9c[w]e must emphasize that our opinion should not in any way be read as\nsupport for attempting to use subcommittees to evade the . . . requirements o f FACA.\xe2\x80\x9d W ybrandt Memorandum at\n9.\n\n76\n\n\x0cies, agenda, or other documents\xe2\x80\x9d that are otherwise covered by FACA.11 The po\xc2\xad\ntential conflict is underscored by the obligation to disclose committee drafts,\nworking papers and studies, whereas exemption 5 is designed to preserve the in\xc2\xad\ntegrity of precisely these types of \xe2\x80\x9cpredecisional\xe2\x80\x9d internal deliberations from pub\xc2\xad\nlic view.12 The two objectives, if not harmonized, would present an insurmount\xc2\xad\nable internal statutory conflict.\nWe conclude that exemption 5 is not generally applicable to materials prepared\nby or for an advisory committee, but that it does extend to protect privileged doc\xc2\xad\numents delivered from the agency to an advisory committee. This construction\ngives meaning to exemption 5 without vitiating Congress\xe2\x80\x99 enumeration of de\xc2\xad\nliberative documents such as working papers and drafts as subject to disclosure.\nIt is also supported by a close reading of exemption 5 itself. Because by its terms\nexemption 5 protects only inter-agency and intra-agency documents and because\nan advisory committee is not an agency, documents do not receive the protection\nof exemption 5 by virtue of the fact that they are prepared by an advisory com\xc2\xad\nmittee. On the other hand, documents prepared by an agency do not lose the pro\xc2\xad\ntection of exemption 5 by virtue of the fact that they are delivered to an advisory\ncommittee.13\nAt the outset, we note that the application of FOIA to advisory committees\nin the FACA statute is not a model of draftsmanship.14 Most glaringly, Con\xc2\xad\ngress incorporated the FOIA exemptions, yet gave no explicit consideration to\n\n11 Pursuant to section 10(b), the right o f public access to deliberative committee documents expires when the\n\xe2\x80\x9ccommittee ceases to exist.\xe2\x80\x9d The material available for public inspection is thereafter restricted by the statute to the\n\xe2\x80\x9creport made by every advisory committee and, where appropriate, background papers prepared by consultants.\xe2\x80\x9d\n5 U.S.C. app. I, \xc2\xa7 13. The Director o f OMB is responsible for filing this matenal, subject to FOIA, with the Library\nof Congress where it is maintained for public inspection in a depository Id The depository materials will pre\xc2\xad\nsumptively not include the preparatory matenal covered by section 10(b), such as working papers, drafts, studies,\nand agendas, unless the materials are incorporated in the committee report or are appropriate background papers\nprepared by consultants.\n12 Exemption 5 in general protects agency documents that would normally be privileged in civil discovery. See\nNLRB v Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). To date, the Supreme Court has recognized five privi\xc2\xad\nleges, including those expressly mentioned in the legislative history, as well as those that are \xe2\x80\x9cwell-settled\xe2\x80\x9d in the\ncase law or are \xe2\x80\x9crough analogies\xe2\x80\x9d to privileges recognized by Congress. United States v. Weber Aircraft Corp., 465\nU.S. 792, 801-02 (1984). The privilege primarily at issue in the intersection o f FOIA and FACA is that protecting\nadvice and recommendations which are part o f the deliberative processes of government.\nIn addition to deliberative process, exemption 5 protects attorney work product, Hickman v. Taylor, 329 U.S.\n495, 509-10(1947); FTC v. Groher, Inc., 462 U.S 19,25-28 (1983), matters covered by attomey-client privilege,\nNLRB, 421 U.S. at 154, confidential commercial information generated to award contracts, Federal Open M arket\nComm, o f the Fed Reserve Sys. v Merrill, 443 U.S 340, 360 (1979), third-party witness statements to military in\xc2\xad\nvestigators, Weber Aircraft, 465 U.S. at 792, and perhaps other privileges as well, see Durns v. United States Dept\no f Justice, 804 F.2d 701 (D.C. Cir.), reh\xe2\x80\x99g en banc denied, 806 F.2d 1122 (D.C. Cir. 1986) (presentence reports);\nH ooverv. United States Dep\'t. o f In te rio r,6 \\\\ F.2d 1132, 1138-42 (5th Cir. 1980) (expert witness reports).\n13 W e express no opinion on the operation o f exemption 5 in the context of a FOIA request to an agency\n14 The courts have noted the ambiguity of the FACA statute generally, and the problems that would be created\nfor the conduct o f government affairs by the literal application o f its terms See, e g , Natural Resources D efense\nCouncil v Herrington, 637 F. Supp. 116, 118-21 (D.D.C. 1986), National Anti-Hunger Coalition, 557 F. Supp at\n530; Center fo r Auto Safety v. Tiemann, 414 F. Supp 215, 223 (D.D C. 1976), a f f d in part, 580 F.2d 689 (D.C.\nCir 1978), Lombardo v Handler, 397 F. Supp. 792, 800 (D.D.C 1975), a ffd , 546 F 2d 1043 (D.C. C ir 1976),\ncert, denied, 4 3 1 U.S. 932 (1977).\n\n77\n\n\x0cthe difficulties in squaring exemption 5 and section 10. The legislative record\nindicates in fact that minimal attention was given on the whole to the incorpo\xc2\xad\nration of FOIA or its intended operation in the particular context of advisory\ncommittees.\nOn the Senate side, as described in the committee report from the Committee\non Government Operations, the clean FACA bill sent to conference, S. 3529, re\xc2\xad\nflected \xe2\x80\x9ca compromise between the mandatory requirements of openness and pub\xc2\xad\nlic participation contained in S. 1637 and the permissive agency option for pub\xc2\xad\nlic access contained in S. 2064 and S. 1964.\xe2\x80\x9d Congressional Research Service,\n95th Cong., 2d Sess., Federal Advisory Committee Act 166 (Comm. Print 1978)\n(\xe2\x80\x9cLegislative History\xe2\x80\x9d). In tandem with this controversy about access to meet\xc2\xad\nings, the original three bills provided either for unrestricted access to committee\nrecords and reports, S. 163715 and S. 2064,16 or did not provide for any disclo\xc2\xad\nsure of written material whatsoever, S. 1964.17\nBased on the hearings and additional study, it was concluded, according to the\nSenate committee report, that despite \xe2\x80\x9cconsiderable opposition\xe2\x80\x9d \xe2\x80\x9cthere was sub\xc2\xad\nstantial merit in opening advisory committee deliberations and documentation to\nthe public.\xe2\x80\x9d Id. In exchange for granting the public a right of access to meetings\nand documents, the protections o f FOIA were incorporated: \xe2\x80\x9cThe exemptions un\xc2\xad\nder the Freedom of Information Act were chosen because they had received the\nmost thorough scrutiny and consideration by the Congress in this sensitive area\nbetween public disclosure and privileged information. Further, they seemed to\nmeet most of the objections raised as to openness during the hearings.\xe2\x80\x9d 18 Id. at\n166-67. The FOIA exemptions constituted a ready made legislative vehicle for\nbalancing disclosure and privilege. The record, however, contains no additional\n\n15 T he pertinent section o f S 1637, sec. 10(b), pertaining to reports and records provided:\nEach Federal agency shall make available to the public for inspection and copying the records and\nfiles, including agenda, transcrips [sic], studies, analyses, reports, and any other data compilations and\nw orking papers, which were made available to or prepared for or by each advisory committee. Such\nrecords shall be m aintained at a single location in each agency for a period of five years after the com \xc2\xad\nmittee ceases to exist.\nR eprinted in Legislative History at 135.\n16 S. 2064 provided in section 12(d), in pertinent part, as follows:\nEach Federal agency shall make available to the public for inspection and copying the records and\nfiles, including agenda, transcripts, studies, analyses, reports, and any other data compilations and\nw orking papers, which were made available to or prepared for or by each agency advisory committee\n(except to the extent they deal with national security matter).\nR eprinted in Legislative History at 149.\n17 S 1964 did, however, require in section 10(d) that the Comptroller General have access, \xe2\x80\x9cfor the purpose of\naudit and exam ination, to any books, documents, papers, and records of each statutory advisory committee.\xe2\x80\x9d\nR eprinted in Legislative History at 143.\n18 The opposition to open meetings came \xe2\x80\x9c particularly from agencies whose committees dealt with such issues\nas national defense and foreign policy, trade secrets, matters relating to the regulation and supervision o f financial\ninstitutions and markets, and information concerning the competence and character of individuals, such as that taken\nup by the grant review committees o f the National Institutes o f Health, the National Science Foundation, and NASA.\xe2\x80\x9d\nSee Legislative History at 166.\n\n78\n\n\x0cdiscussion that would suggest Congress was even aware of the potential conflict\nposed by exemption 5 as applied to section 10 of FACA.19\nIn the statute as enacted, the language of S. 3529 was adopted in full, but the\nstructure was slightly altered. Rather than providing that all three sections would\nbe subject to 552(b), section 10(b) was prefaced with the \xe2\x80\x9c[s]ubject to section\n552\xe2\x80\x9d language. No further elucidation of the relation between FACA and FOIA\nwas provided. Upon review, therefore, it seems fair to conclude that Congress\nbroadly opted in favor of disclosure for advisory committees, but in response to\nspecific problems raised, adopted FOIA as the vehicle for protecting certain\nclasses of materials. Beyond that, however, Congress did not explain its inten\xc2\xad\ntions with respect to the interaction of FOIA and FACA in general or of exemp\xc2\xad\ntion 5 in particular.\nAbsent apparent recognition by Congress of the problem, the proper applica\xc2\xad\ntion intended for exemption 5 is necessarily drawn from the plain language of\nsection 10(b). At least as to deliberative, predecisional materials, such as work\xc2\xad\ning papers, drafts, and studies, there appears to be no doubt that Congress in\xc2\xad\ntended full disclosure. The enumeration in extensive detail of specific kinds of\ndeliberative material subject to mandatory inspection and copying during the life\nof the committee provides the best evidence that the exemption 5 protection for\ndeliberative materials was intended to have limited application as applied to\nFACA.\nThe legislative history reinforces the view that Congress intended the narrow\napplication of exemption 5 to FACA. In particular, key legislators made numer\xc2\xad\nous and essentially uncontradicted statements that they intended the public to be\nin a position to affect the committee\xe2\x80\x99s deliberations and that they fully intended\nto provide the public with access to deliberative committee materials during the\ncommittee\xe2\x80\x99s lifetime. For example, in sponsoring the bill on the Senate floor,\nSenator Metcalf, as acting subcommittee chairman within the Committee on Gov\xc2\xad\nernment Operations, which submitted S. 3529, stated:20\n\n19 The House bill, H.R. 4383, as amended, is even less illuminating In substance, the provision concerning re\xc2\xad\nports and records seems to be closely analogous to S. 3529: \xe2\x80\x9cThe provisions of section 552 o f title 5, United States\nCode, shall apply to all records and files, including agenda, transcripts, studies, analyses, reports, meeting notices,\nand any other data, compilations, and working papers which were made available to or prepared for or by each ad\xc2\xad\nvisory committee.\xe2\x80\x9d Legislative History at 303. Yet the House committee report impliedly states that the reference\nto 552 is actually to 552(a), namely that portion o f FOIA that broadly states the obligation to disclose, rather than\nto 552(b), which sets forth the nine exemptions:\nThis provision has the effect of assuring openness in the operations o f advisory committees. This\nprovision coupled with the requirement that complete and accurate minutes o f committee meetings be\nkept serves to prevent the surreptitious use o f advisory committees to further the interests o f any spe\xc2\xad\ncial interest group. Along with the provisions for balanced representation contained in \xc2\xa7 4 o f the bill,\nthis requirement o f openness is a strong safeguard o f the public interest.\nLegislative History at 280.\n20 In much the same vein, the subcommittee report accompanying S. 3529 quotes Senator M etcalf\xe2\x80\x99s remarks\nopening subcommittee hearings. His language, while not entirely unambiguous, would again strongly suggest that\nthe rationale for access to committee papers includes, rather than excludes, influence on the deliberative process:\nThose who get information to policymakers, or get information for them, can benefit their cause,\nwhatever it may be. Outsiders can be adversely and unknowingly affected. And decision-makers who\n\n79\n\n\x0cFurther evidence has shown that there exists a tendency among\nadvisory committees to operate in a closed environment, permit\xc2\xad\nting little opportunity for the public to be informed of their delib\xc2\xad\nerations and recommendations, and o f the materials and infor\xc2\xad\nmation on which they rely. . . .\nThus, the legislation provides both a housekeeping function in\nthe interests of efficiency and economy in Government and a func\xc2\xad\ntion of disclosure and objective counsel\xe2\x80\x94 so that the public will\nknow what advice their Government is getting and how they might\nadd their contribution to the information process.\nLegislative History at 198 (emphasis added). On the House side, Congressman\nMoorhead supported H.R. 4383, as amended, emphasizing the following:\nAnother feature of the bill which must be applauded is the re\xc2\xad\nquirement for public access to the deliberations and recommen\xc2\xad\ndations of these advisory committees. All too often, such com\xc2\xad\nmittees meet behind closed doors, and submit advice to Executive\ndepartments without any opportunity for the public to comment\non or be aware of the purport of such advice.\nLegislative History at 297.\nMoreover, this construction is also supported by a close reading of the express\nterms of exemption 5, which protects only inter-agency and intra-agency mem\xc2\xad\norandums. These terms do not apply to documents prepared by and in the pos\xc2\xad\nsession of an advisory committee because an advisory committee within the\nmeaning of FACA is neither an agency nor a sub-group within an agency.21FACA\nspecifically distinguishes between an advisory committee and an agency in its\nsection defining statutory terms, making clear that an advisory committee is not\n20 (. . . continued)\nget information from special interest groups who are not subject to rebuttal because opposing inter\xc2\xad\nests do not know about meetings \xe2\x80\x94 and could not get in the door if they did\xe2\x80\x94 may not make tempered\njudgm ents. We are looking at two fundam entals, disclosure and counsel, the rights o f people to fin d\nout what is going on and, i f they want, to do something about it.\nS. Rep. No. 1098, 92d Cong., 2d Sess at 4 (1972), reprinted in Legislative History at 154 (emphasis added).\nThese views are seconded by Senator Percy:\nThe second m ajor element of the bill is its provisions fo r opening up advisory committees to pub\xc2\xad\nlic scrutiny During the extensive hearings . . we becam e convinced that there were too many in\xc2\xad\nstances where advisory committees w ere consulting with Government offices on important policies\nand decisions w ithout an adequate guarantee that the public interest was being served Meetings are\ntypically closed to the public Minutes and documents used in meetings are typically not available for\npublic inspection.\nRem arks o f Senator Percy, 118 Cong. Rec. 30,274 (1972), reprinted in Legislative History at 202 (endorsing S.\n3529).\n21 D ecisions under FOIA hold that exemption 5 applies when an agency document in the possession of an agency\nhas been transmitted by a non-agency such as Congress, see infra note 29 O ur conclusion, however, applies only\nto documents that are neither prepared by an agency nor in an agency\xe2\x80\x99s possession.\n\n80\n\n\x0can agency. It defines the term agency to have the same meaning as used in FOIA,\n5 U.S.C. app. I, \xc2\xa7 3(3),22 whereas it defines \xe2\x80\x9cadvisory committee\xe2\x80\x9d as \xe2\x80\x9cany com \xc2\xad\nmittee, board, commission, council, conference, panel, task force, or other sim\xc2\xad\nilar group, or any subcommittee or other subgroup thereof\xe2\x80\x99 established by statute\nor reorganization plan or utilized by the President or one or more agencies \xe2\x80\x9cin\nthe interest of obtaining advice or recommendations.\xe2\x80\x9d 5 U.S.C. app. I, \xc2\xa7 3(2).\nMore broadly, FACA is predicated on the assumption, emphasized several times\nin the statute, that advisory committees give advice and recommendations,23\nwhereas agencies are operating arms of government characterized by \xe2\x80\x9csubstan\xc2\xad\ntial independent authority in the exercise of specific functions,\xe2\x80\x9d Soucie v. David,\n448 F.2d at 1073, or the \xe2\x80\x9cauthority in law to make decisions.\xe2\x80\x9d Washington Re\xc2\xad\nsearch Project, Inc. v. HEW, 504 F.2d 238,248 (D.C. Cir. 1974). Several courts,24\nas well as this Office,25 have construed the statutory distinction to signify that\nadvisory committees are not agencies 26\n22 Pursuant to 5 U.S.C. \xc2\xa7 551(1), the term \xe2\x80\x9cagency\xe2\x80\x9d is defined, subject to exceptions, as \xe2\x80\x9ceach authority o f the\nGovernment of the United States, whether or not it is within or subject to review by another agency.\xe2\x80\x9d\n23 FACA in several provisions underscores the self-evident function o f advisory committees to provide advice.\nSee, e g , 5 U.S.C. app. I, \xc2\xa7 2(6) (\xe2\x80\x9cthe function o f advisory committees should be advisory only\xe2\x80\x9d); 5 U.S.C. app. 1,\n\xc2\xa7 9(b) (\xe2\x80\x9c Unless otherwise specifically provided by statute or Presidential directive, advisory committees shall be\nutilized solely for advisory functions.\xe2\x80\x9d). See also Legislative History at 197-98 (Among the enumerated purposes\nof S 3529 is \xe2\x80\x9cto assure that the functions o f Federal advisory committees shall be advisory only and that all mat\xc2\xad\nters under their consideration shall be determined solely by Federal officials and agencies \xe2\x80\x9d). To the extent FACA\nrecognizes that advisory committees in individual circumstances might exceed their advisory function, 5 U.S.C.\napp I, \xc2\xa7 9(b), (c)(F), the general conclusion that advisory committees are not agencies or divisions of agencies\nwould need to be evaluated based on the specific powers and activities o f the committee\n24 See, e.g , Nader v. Dunlop, 370 F. Supp. 177, 178-79 (D.D.C. 1973) (exemption 5 does not exempt from pub\xc2\xad\nlic access meetings o f advisory committees to the Cost o f Living Council); Gates v. Schlesinger, 366 F. Supp. 797,\n798-800 (D D C. 1973) (same with respect to advisory committee to Department o f Defense) These two cases ap\xc2\xad\nply to meetings, 5 U.S C app. I, \xc2\xa7 10(d), not documentary disclosure, 5 U.S.C. app. I, \xc2\xa7 10(b), but because they\npreceded the 1976 amendment to FACA which eliminated the availability of exemption 5 for meetings, but not for\ndocuments, the reasoning is applicable to documentary materials under the statute as presently written\n25 Memorandum for the Clemency Board, from Antonin Scalia, Assistant Attorney General, Office of Legal\nCounsel (Sept 24, 1974) (explaining that if advisory committees were considered to be agencies, the full panoply\nof requirements mandated by the Administrative Procedure Act would apply to committee operations).\n26 We are aware o f no language in FACA\xe2\x80\x99s legislative history supporting the construction that advisory com \xc2\xad\nmittees are agencies. One possible exception is a remark by Congressman Thone in reference to a provision in the\nHouse bill regarding access to advisory committee documents filed with the Library of Congress*\nSubsection (b) provides that the Freedom o f Information Act is applicable to this section.\nThis should remove any doubt as to whether advisory committees are subject to the Freedom of\nInformation Act. Otherwise, 1 assume, it might be argued that advisory committees do not fall within\nthe definition o f agency in section 551(1) o f the Freedom o f Information Act and are, therefore, not\nsubject to the act.\n118 Cong. Rec 16,298(1972).\nThis isolated remark about a provision collateral to section 10 carries little weight, especially since it runs\ncounter to the statute\xe2\x80\x99s language and other legislative history See, e g , Ernst & Ernst v Hochfelder, 425 U S. 185,\n203 n.24 (1976); NLRB v Fruit Packers, 377 U.S. 58, 66 (1964) Moreover, the substance of the remark is am \xc2\xad\nbiguous. The congressman may have intended to say that advisory committees are agencies or, alternatively, that\nthe Act expressly makes FOIA applicable to FACA, and therefore avoids any question whether FOIA is independently applicable to advisory committees as agencies. See, e g , Memorandum for the Clemency Board, from An\xc2\xad\ntonin Scalia, Assistant Attorney General, Office o f Legal Counsel at 9 (Sept. 24, 1974) (\xe2\x80\x9cThere are two routes by\nwhich the Freedom o f Information Act may be applied to the Board. One is through the Federal Advisory C om \xc2\xad\nmittee Act. A second possible route is through the Administrative Procedure Act, of which the Freedom of Infor\xc2\xad\nmation Act is a part, if the [Clemency] Board is to be regarded as an agency, as that term is defined in the A dmin\xc2\xad\nistrative Procedure Act.\xe2\x80\x9d)\n\n81\n\n\x0cFor similar reasons, an advisory committee cannot be deemed a component\nwithin an agency whose deliberative documents are subject to exemption 5. The\nAct requires that all legislation authorizing an advisory committee \xe2\x80\x9cassure that\nthe advice and recommendations of the advisory committee . . . not be inappro\xc2\xad\npriately influenced by the appointing authority or by any special interest, but will\ninstead be the result of the advisory committee\xe2\x80\x99s independent judgment.\xe2\x80\x9d 5 U.S.C.\napp. I, \xc2\xa7 5(b)(3). The emphasis on independence, and on judgment, highlights\nthe separation of committees from agencies, as do the provisions for independent\nstaffing, 5 U.S.C. app. I, \xc2\xa7 5(b)(4), temporary duration, 5 U.S.C. app. I, \xc2\xa7 14, the\nprohibition of committees composed wholly of full-time federal officials or em\xc2\xad\nployees, 5 U.S.C. app. I, \xc2\xa7 3(2), and the requirement that \xe2\x80\x9c[n]o advisory com\xc2\xad\nmittee shall meet or take any action until an advisory committee charter has been\nfiled\xe2\x80\x9d with the appropriate authority, 5 U.S.C. app. I, \xc2\xa7 9(c). As the district court\nin Gates, 366 F. Supp. at 799, observed: \xe2\x80\x9c[T]he exchange of information does\nnot make an advisory committee \xe2\x80\x98part of\xe2\x80\x99 its government agency.\xe2\x80\x9d\nThe committee is not an internal organ, but again by its very nature, is a group\no f \xe2\x80\x98outsiders\xe2\x80\x99 called upon because of their expertise to offer views and comments\nunavailable within the agency.27 In short, given that an advisory committee is\nneither an agency itself nor a component of an agency, exemption 5 cannot gen\xc2\xad\nerally apply to FACA advisory committees\xe2\x80\x99 documents since by its terms it only\nprotects \xe2\x80\x9cinter-agency and intra-agency memorandums.\xe2\x80\x9d28\nOn the other hand, by its express terms exemption 5 would apply to delibera\xc2\xad\ntive documents prepared by an agency and delivered to the advisory committee.29\n27 Moreover, the Senate report urges that advisory committees not be formed if the agency can accomplish the\nadvisory work imemaUy Advisory committees are plainly meant to supplement agency resources, not duplicate\nthem. A lthough the Act authorizes agency officials to call and adjourn meetings, 5 U.S.C. app. I, \xc2\xa7 10(e) and (f),\nand broadly m onitor the operation of advisory committees established by an agency, 5 U.S.C. app. I, \xc2\xa7 8, these pro\xc2\xad\nvisions implement the A ct\xe2\x80\x99s designated purpose to rein in the operation of advisory committees, not place them\nwithin the jurisdictional confines of the agency or subject them to agency mandate on the substantive issue under\nreview by the committee\n28 W e recognize that under FOIA the courts have ruled on several occasions that materials supplied to an agency\nby outside experts and consultants, see, e g., H oover v United States D ep\xe2\x80\x99t o f Interior, 611 F.2d 1132, 1138 (5th\nCir. 1980) (report o f pnvate appraiser); Lead Industries A ss\'n v. OSHA, 610 F.2d 70, 83 (2d Cir. 1979) (analyses\no f scientific testimony prepared by consultants); or the courts, see Durns v Bureau o f Prisons, 804 F.2d 701 (D D.C.\n1986) (presentence reports); or Congress, see, e.g., Ryan v Departm ent o f Justice, 617 F.2d 781,789-90 (D.C. Cir.\n1980) (Senators\xe2\x80\x99 responses to agency\xe2\x80\x99s questionnaire intra-agency records), fall within exemption 5\xe2\x80\x94 thereby\nloosely construing the meaning o f \xe2\x80\x9cintra-agency.\xe2\x80\x9d This line o f cases, however, does not alter our conclusion that\nan advisory committee cannot invoke exemption 5 \xe2\x80\x99s inter-agency exemption to protect materials prepared by it and\nin its possession. These cases simply stand fo r the proposition that an agency may protect certain documents in its\npossession from disclosure. Accordingly, u n d er this line of cases, when an agency makes use of advisory materi\xc2\xad\nals, such materials may indeed properly become deliberative documents to the agency. Section 10(b), however, im\xc2\xad\nposes disclosure requirements on the advisory committee itself.\n29 This is consistent with the holding in Aviation Consumer Action Project v Washburn, 535 F.2d 101, 107-08\n(D.C. Cir. 1976) that agencies may disclose predecisional documents to advisory committees without waiving their\nability to protect the records under exemption 5, at least where such disclosures further the \xe2\x80\x9cfree and candid ex\xc2\xad\nchange o f ideas during the process of decision-making.\xe2\x80\x9d It is also consistent with FOIA caselaw holding that the\ndelivery o f internal documents to Congress does not necessarily vitiate exemption 5 protection. See, e g , Leteher\nv United States Dept, o f Justice, 3 GDS 82,257, 82,714 (D.D.C. 1982) ("documents reflecting consultations be\xc2\xad\ntween CIA and Congress are protected by exem ption 5 since such consultations are an integral part o f the deliber\xc2\xad\native process and to discuss this process in public view would inhibit frank discussions\xe2\x80\x9d); Allen v Department o f\nD efense, 580 F. Supp 74, 83 (D D.C. 1983) (\xe2\x80\x9cexemption 5 may, in an appropriate case, be applied to agency-con\xc2\xad\ngressional communications\xe2\x80\x9d).\n\n82\n\n\x0cAccordingly, our construction still gives vitality to exemption 5 in the context of\nsection 10(b) disclosure requirements. Under this construction, documents trans\xc2\xad\nmitted to an advisory committee by an agency do not lose the protection of an\nagency\xe2\x80\x99s deliberative process exemption under FOIA.\nConclusion\nFor the foregoing reasons, exemption 5 properly applies under FACA when\nthe agency has transmitted to an advisory committee a document that would be\nprotected from disclosure if in the possession of the agency. Under the detailed\nenumeration of covered materials in section 10 of FACA, however, the advisory\ncommittees must, as a general matter, disclose the materials \xe2\x80\x9cmade available to\xe2\x80\x9d\nthe committee, \xe2\x80\x9cprepared by\xe2\x80\x9d the committee or \xe2\x80\x9cprepared for\xe2\x80\x9d the committee, so\nlong as the committee is utilized or established by the President, an agency, or\nstatute or reorganization plan, and then only \xe2\x80\x9cuntil the advisory committee ceases\nto exist.\xe2\x80\x9d 5 U.S.C. app. I, \xc2\xa7 10(b).\nJohn O. M\n\nc G in n is\n\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n83\n\n\x0c'


b"February 21, 1977\n\n77-8\n\nMEMORANDUM OPINION FOR THE\nATTORNEY GENERAL\nInspector General Legislation\n\nCertain questions exist concerning the constitutionality of H.R. 2819,\nwhich would establish an Office of Inspector General in six executive\ndepartments 1 and five other executive establishments.2 It is our opin\xc2\xad\nion that the provisions in this bill, which make the Inspectors General\nsubject to divided and possibly inconsistent obligations to the executive\nand legislative branches, violate the doctrine of separation of powers\nand are constitutionally invalid. This memorandum briefy outlines the\nmajor provisions o f the bill, discusses the constitutional problems pre\xc2\xad\nsented by those provisions, and recommends modifications to remedy\nthose problems.\nA.\n\nDescription of the Inspector General Legislation Pending\nBefore Congress\n\nH.R. 2819 was introduced on February 1, 1977, by Representatives\nFountain and Brooks and has been referred to the Committee on\nGovernm ent Operations. The bill combines and reorganizes the present\ninternal audit and investigative units in each of the 11 agencies that are\nthe subject of the bill into a single office with certain additional respon\xc2\xad\nsibilities. The primary functions of the Inspector General\xe2\x80\x99s Office\nwould be: (1) to develop and supervise programs (including audits and\ninvestigations) in the agency to promote efficiency and to prevent fraud\nand abuse; (2) to keep both the head of the agency and Congress fully\ninformed regarding these matters; and (3) to recommend and report on\nthe implementation o f corrective actions.\nEach Inspector General is required to prepare and submit to Con\xc2\xad\ngress, as well as to the head of the agency, a variety of reports, and is\n1 T h e D epartm ents included are A griculture, C om m erce, Housing and Urban D evelop\xc2\xad\nm ent, Interior, L abor, and T ransportation.\n2 T h e o th er establishm ents are th e E nergy R esearch and D evelopm ent A dm inistration,\nthe E n vironm ental Protection A gency, the G eneral Services Adm inistration, and the\nN ational A eronautics and Space A dm inistration.\n\n16\n\n\x0crequired to supply additional documents and information to Congress\non request. These reports are required to be submitted directly to\nCongress without clearance or approval by the agency head or anyone\nelse in the executive branch. The Inspector General is authorized to\nhave access to a broad range of materials available to the agency and is\ngiven subpoena power to obtain additional documents and information.\nThe Inspectors General are to be appointed by the President (with\nthe advice and consent of the Senate) \xe2\x80\x9cwithout regard to political\naffiliation,\xe2\x80\x9d and whenever the President removes an Inspector General\nfrom office, the bill would require the President to notify both Houses\nof the reasons for removal.\nThe bill is modeled on Title II of Pub. L. No. 94-505, 90 Stat. 2429,\nwhich establishes an Office of Inspector General in the Department of\nHealth, Education, and Welfare (HEW). No Inspector General for\nHEW has been appointed to date.\nB.\n\nConstitutional Objections\n\n1. As a threshold matter, the Justice Department has repeatedly taken\nthe position that continuous oversight of the functioning of executive\nagencies, such as that contemplated by the requirement that the Inspec\xc2\xad\ntor General keep Congress fully and currently informed, is not a proper\nlegislative function. In our opinion, such continuing supervision\namounts to an assumption of the Executive\xe2\x80\x99s role of administering or\nexecuting the laws. However, at the same time it must be acknowl\xc2\xad\nedged that Congress has enacted numerous statutes with similar require\xc2\xad\nments, many of which are currently in force.\n2. An even more serious problem is raised, in our opinion, by the\nprovisions that make the Inspectors General subject to divided and\npossibly inconsistent obligations to the executive and legislative\nbranches, in violation of the doctrine of separation of powers. In partic\xc2\xad\nular, the Inspector General\xe2\x80\x99s obligation to keep Congress fully and\ncurrently informed, taken with the mandatory requirement that he\nprovide any additional information or documents requested by C on\xc2\xad\ngress, and the condition that his reports be transmitted to Congress\nwithout executive branch clearance or approval, are inconsistent with\nhis status as an officer in the executive branch, reporting to and under\nthe general supervision of the head of the agency. Article II vests the\nexecutive power of the United States in the President. This includes\ngeneral administrative control over those executing the laws. See, Myers\nv. United States, 272 U .S .-52, 163-164 (1926). The President\xe2\x80\x99s power of\ncontrol extends to the entire executive branch, and includes the right to\ncoordinate and supervise all replies and comments from the executive\nbranch to Congress. See, Congress Construction Corp. v. United States,\n314 F. 2d 527, 530-532 (Ct. Cl. 1963).\n3. Under the bill, the Inspector General has an unrestricted access to\nexecutive branch materials and information. He has an unqualified and\n17\n\n\x0cindependent obligation to provide such materials and documents to the\nCongress as it may request. Obviously the details of some investigations\nby the Inspector General (or by the Justice Department) might well,\nunder settled principles, require them to be withheld from Congress\nthrough the assertion of executive privilege. But the bill as written\nwould preclude that assertion in view o f the Inspector General\xe2\x80\x99s duty\nto make requested materials and information available to Congress.\n4.\nFinally, we are of the opinion that the requirement that the\nPresident notify both Houses of Congress o f the reasons for his removal\no f an Inspector General constitutes an improper restriction on the\nPresident\xe2\x80\x99s exclusive power to remove Presidentially appointed execu\xc2\xad\ntive officers. Myers v. United States, supra. Although Congress has the\nauthority to limit the President\xe2\x80\x99s power to remove quasi-judicial or\nquasi-legislative officers, Wiener v. United States, 357 U.S. 349 (1958),\nHumphrey's Executor v. United States, 295 U.S. 602 (1935), the power to\nrem ove a subordinate appointed officer within one of the executive\ndepartments is a. power reserved to the President acting in his discre\xc2\xad\ntion.3\nC.\n\nSuggested Modifications\n\nWe believe that the constitutional problems raised by the proposed\nlegislation could only be cured through modification that would clearly\nestablish the Inspector General as an executive officer responsible to\nthe head of the agency.\nThe principal problem w ith the proposed legislation is that the In\xc2\xad\nspector General is neither fish nor fowl. While the Inspector General is\nsupposed to be under the general supervision of the agency head, the\nInspector General reports directly to Congress. He is to have free\naccess to all executive information within the agency, yet he is not\nsubject to the control of the head of the agency or, for that matter,\neven to the control o f the President.\nIn our opinion, the only means by which this bill could be rendered\nconstitutional would be to modify it so as clearly to establish the\nInspector General as an executive officer subject to the supervision of\nthe agency head and subject to the ultimate control of the Chief\nExecutive Officer. We recommend the following modifications:\n1. Reports o f problems encountered and suggestions for remedial\nlegislation may be required of the agencies in question, but those\nreports must come to Congress from the statutory head of the\nagency, who must reserve the power of supervision over the con\xc2\xad\ntents of these reports.\n2. The constitutional principle o f executive privilege must be\npreserved. The provision in the bill requiring reports to Congress\ns W e also question the validity o f the requirem ent that the President appoint each\nIn sp e cto r G eneral \xe2\x80\x9c w ithout regard to political affiliation.\xe2\x80\x9d T his implies som e lim itation on\nthe appointm ent p o w er in addition to the advice and consent o f the Senate.\n\n18\n\n\x0cof all \xe2\x80\x9cflagrant abuses or deficiencies\xe2\x80\x9d within 7 days after discov\xc2\xad\nery would risk jeopardizing ongoing investigations by the agency\nand the Justice Department, many of which would be subject to a\nclaim of privilege. That provision should be qualified by a specific\nreference to the possibility of a claim of privilege, or deleted\nentirely from the bill.\n3.\nFinally, the power of the President to remove subordinate\nexecutive officers must remain intact. The requirement in the bill\nthat the President report to Congress the reasons for his removal\nof an Inspector General would infringe on this power and should\nbe eliminated.\nJohn M . H\n\narm on\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n19\n\n\x0c"


b'Application of 18 U.S.C. \xc2\xa7 209 to Employee-Inventors Who\nReceive Outside Royalty Payments\nA federal g o v ern m en t em ployee w ho obtains p aten t rights to an invention m ade in the course o f\nfederal em p lo y m en t ordinarily does not violate 18 U S.C. \xc2\xa7 2 0 9 by licensing the patent rights to\na private entity and receiving royalty payments in exchange\n\nSeptember 7, 2000\nM\n\nem o ran d u m\n\nO f f ic e\n\nof\n\nO p in io n\n\nfo r t h e\n\nD ir e c t o r\n\nG o v e r n m e n t E t h ic s\n\nY o u have asked for our opinion whether a federal government employee who\nobtains patent rights to an invention made in the course of federal employment\nviolates 18 U.S.C. \xc2\xa7209 by licensing the patent rights to a private entity and\nreceiving royalty payments in exchange. See Letter for Randolph D. Moss, Acting\nAssistant Attorney General, Office o f Legal Counsel, from Stephen D. Potts,\nDirector, Office of Government Ethics (Oct. 19, 1999) (\xe2\x80\x9c Potts letter\xe2\x80\x9d ). We con\xc2\xad\nclude that \xc2\xa7 209 ordinarily does not ban outside royalty payments to employeeinventors.\n\nI.\n\nSection 209(a) states:\nWhoever receives any salary, or any contribution to or\nsupplementation of salary, as compensation for his services as an\nofficer or employee of the executive branch of the United States\nGovernment, of any independent agency of the United States, or\nof the District of Columbia, from any source other than the Govern\xc2\xad\nment of the United States, except as may be contributed out of\nthe treasury of any State, county, or municipality; or\nWhoever, whether an individual, partnership, association, cor\xc2\xad\nporation, or other organization pays, or makes any contribution to,\nor in any way supplements the salary of, any such officer or\nemployee under circumstances which would make its receipt a vio\xc2\xad\nlation of this subsection shall be subject to the penalties set forth\nin section 216 o f this title.\n18 U.S.C. \xc2\xa7 209(a) (1994). This provision, as the Court of Appeals for the Ninth\nCircuit has explained, bars \xe2\x80\x9c (1) an officer or employee of the executive branch\nor an independent agency of the United States government from (2) receiving\n170\n\n\x0cApplication o f 18 U.S.C. \xc2\xa7209 to Employee-lnventors Who Receive Outside Royalty Payments\n\nsalary or any contribution to or supplementation of salary from (3) any source\nother than the United States (4) as compensation for services as an employee\nof the United States.\xe2\x80\x9d United States v. Raborn, 575 F.2d 688, 691-92 (9th Cir.\n1978). You have asked us to focus on the third and fourth elements, see Potts\nletter at 2, and we accordingly assume that the first two elements \xe2\x80\x94 that an\nemployee-inventor is an \xe2\x80\x9c officer or employee of the executive branch\xe2\x80\x9d or an\n\xe2\x80\x9c independent agency,\xe2\x80\x9d and that royalty payments constitute a \xe2\x80\x9c contribution to\nor supplementation of salary\xe2\x80\x9d \xe2\x80\x94 would be established here.\nThe government has the right to obtain the \xe2\x80\x9c entire right, title and interest in\nand to all inventions made by any Government employee (1) during working\nhours, or (2) with a contribution by the Government of facilities, equipment, mate\xc2\xad\nrials, funds, or information, or of time or services of other Government employees\non official duty, or (3) which bear a direct relation to or are made in consequence\nof the official duties of the inventor.\xe2\x80\x9d Exec. Order No. 10096, 3 C.F.R. 292\n(1949-1953 comp.). If an agency determines that the government\xe2\x80\x99s contribution\nto the employee\xe2\x80\x99s invention is \xe2\x80\x9c insufficient equitably to justify\xe2\x80\x9d the government\xe2\x80\x99s\nobtaining all rights to the invention, or that the agency has \xe2\x80\x9c insufficient interest\xe2\x80\x9d\nin the invention, it \xe2\x80\x9c shall leave title to such invention in the employee,\xe2\x80\x9d subject\nto an irrevocable, nonexclusive license to the government. Id. We understand that\nemployee-inventors who are allowed to retain patent rights in their inventions\noften enter into licensing agreements with private entities, under which they\nreceive royalty payments. See Potts letter at 1. In some instances, an employeeinventor may continue to develop the invention as part of his or her job respon\xc2\xad\nsibilities and may participate in a cooperative research and development agreement\n(\xe2\x80\x9c CRADA\xe2\x80\x9d ) between the agency and a private entity. See id.\nII.\nYou have suggested that the third element of a \xc2\xa7 209 violation \xe2\x80\x94 receipt of pay\xc2\xad\nm en t/raw a source other than the United States \xe2\x80\x94 might not be satisified here\nbecause the government could be deemed the source of outside royalty payments\nto employee-inventors. See Potts letter at 2-3; see also 18 U.S.C. \xc2\xa7 209(a) (forbid\xc2\xad\nding salary supplementation \xe2\x80\x9c from any source other than the Government of the\nUnited States\xe2\x80\x9d ). We do not believe that this argument can be sustained.\nThe closest analogue appears to be set out in an opinion of our Office from\n1993. There, we considered the government\xe2\x80\x99s practice, under the Federal Tech\xc2\xad\nnology Transfer Act (\xe2\x80\x9c FTTA\xe2\x80\x9d ), 15 U.S.C. \xc2\xa7\xc2\xa73701-3717 (1994 & Supp. IV\n1998), of sharing with an employee-inventor the royalties that the government\nreceived from licensing the employee\xe2\x80\x99s invention. These payments to the\nemployee, we concluded, did not place the employee in the position of violating\n18 U.S.C. \xc2\xa7208, which generally forbids an employee from working on a par\xc2\xad\n171\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nticular matter in which he or she has a financial interest.1 See Ethics Issues Related\nto the F ederal Technology Transfer A ct o f 1986, 17 Op. O.L.C. 47, 50 (1993).\nThe F IT A, as then written, required government agencies to \xe2\x80\x9c pay at least 15\npercent of the royalties or other income the agency receives on account of any\ninvention to the inventor . . . if the inventor . . . assigned his or her rights in\nthe invention to the United States.\xe2\x80\x9d 15 U.S.C. \xc2\xa7 3710c(a)(l)(A)(i) (1994). Because\nthe government paid the royalties at issue, we determined that they did not con\xc2\xad\nstitute an outside financial interest implicating \xc2\xa7208. See 17 Op. O.L.C. at 505 1.2 Although the opinion primarily dealt with \xc2\xa7208, we also concluded, on the\nsame reasoning, that employees receiving such payments would not violate\n\xc2\xa7 209(a). See id. at 51.\nHere, although private entities pay the royalties, employee-inventors acquire\npatent rights only because the government has decided not to exercise its right\nto obtain title. See Potts letter at 3. We agree, therefore, that the royalties come\nfrom the government in an indirect sense. Nonetheless, the royalties at issue in\nour 1993 opinion came directly from the government and indirectly from a private\nsource; here the converse is true. See 17 Op. O.L.C. at 51 (\xe2\x80\x9c Since an employee\nreceives section 7 payments from the federal agency holding the rights to the\ninvention, the payments are not subject to \xc2\xa7209(a)\xe2\x80\x99s prohibition.\xe2\x80\x9d ). Rather than\nincidentally benefitting by receiving a portion of the royalties from an agreement\nbetween the government and a private entity, employee-inventors in the present\ncase are themselves entering into licensing agreements to which the government\nis not a party. The payments here are thus critically different from those addressed\nin our 1993 opinion. Here, the indirect connection between the government and\nthe royalty payments cannot negate their direct connection to a nongovernmental\nsource. Accordingly, we conclude that the third element of \xc2\xa7209 could be met,\nand we turn to the fourth element.\n\n1Section 208(a) states.\nExcept as permitted by subsection (b) hereof, whoever, being an officer or employee o f the executive\nbranch o f the United States Government, o r o f any independent agency of the United States, a Federal\nReserve bank director, officer, or employee, o r an officer or employee of the District of Columbia, including\na special G overnment employee, participates personally and substantially as a Government officer or\nemployee, through decision, approval, disapproval, recommendation, the rendering of advice, investigation,\nor otherw ise, in a judicial or other proceeding, application, request for a ruling or other determination,\ncontract, claim, controversy, charge, accusation, arrest, or other particular matter in which, to his knowledge,\nhe, his spouse, minor child, general partner, organization in which he is serving as officer, director, trustee,\ngeneral partner or employee, or any person o r organization with whom he is negotiating or has any arrange\xc2\xad\nment concerning prospective employment, has a financial interest [s]hall be subject to [specified] penalties\n18 U S C \xc2\xa7 208(a) (1994)\n2 W e reasoned that such payments would becom e part o f the inventor\xe2\x80\x99s federal employment contract, would nec\xc2\xad\nessarily be known to the government, and therefore would not implicate the central concerns of \xc2\xa7208. See id.\n\n172\n\n\x0cApplication o f 18 U.S.C. \xc2\xa7 209 to Employee-inventors Who Receive Outside Royalty Payments\n\nIII.\nYou have expressed the concern that outside royalty payments might be viewed\nas compensation \xe2\x80\x9c for the employee\xe2\x80\x99s past or present services to the Government\nin developing the invention.\xe2\x80\x9d Potts letter at 6. We recognize that the statute might\nbe given that interpretation. Nonetheless, we believe that, on the better view, the\npayments would not meet this element of the statute.\nIn a 1997 opinion, we interpreted \xc2\xa7209 to require an \xe2\x80\x9c intentional, direct link\xe2\x80\x9d\nbetween the outside compensation and the employee\xe2\x80\x99s government service.\nApplicability o f 18 U.S.C. \xc2\xa7 2 0 9 to Acceptance by FBI Employees o f Benefits\nUnder the \xe2\x80\x9c Make a Dream Come True\xe2\x80\x9d Program, 21 Op. O.L.C. 204, 206\n\n(1997). We did not read \xc2\xa7209 to prohibit \xe2\x80\x9c all non-government payments to an\nindividual where there is any nexus between the payment and the individual\xe2\x80\x99s\nemployment by the government.\xe2\x80\x9d Id. at 209. We largely relied on an amendment\nof the provision in 1962, by which Congress deleted the phrase \xe2\x80\x9c in connection\nwith\xe2\x80\x9d from the earlier version and substituted the \xe2\x80\x9c as compensation for\xe2\x80\x9d lan\xc2\xad\nguage. Congress made this change because the former phrase was thought ambig\xc2\xad\nuous and \xe2\x80\x9c capable of an infinitely broad interpretation.\xe2\x80\x9d Id. at 206 (citing H.R.\nRep. No. 87-748, at 13, 25 (1961)). \xe2\x80\x9c The amendment was designed to clarify\nthat there must be a direct link between the contribution to or supplementation\nof salary and the employee\xe2\x80\x99s services to the government.\xe2\x80\x9d Id. (emphasis added).\nNo intentional, direct link between an employee-inventor\xe2\x80\x99s government services\nand the licensing of patent rights would typically exist here. Our 1997 opinion\nidentified several factors that should be taken into consideration when construing\nthe \xe2\x80\x98 \xe2\x80\x98as compensation for\xe2\x80\x99 \xe2\x80\x99 requirement of \xc2\xa7 209, where the existence of an inten\xc2\xad\ntional, direct link is unclear. Those factors include:\n(1) whether there is a substantial relationship or pattern of dealings\nbetween the agency and the payor; (2) whether the employee is\nin a position to influence the government on behalf of the payor;\n(3) whether the expressed intent of the payor is to compensate for\ngovernment service; (4) whether circumstances indicate that the\npayment was motivated by a desire other than to compensate the\nemployee for her government service . . .; (5) whether payments\nwould also be made to non-government employees; and (6) whether\npayments would be distributed on a basis unrelated to government\nservice.\nId.\n\nThree of these factors support the conclusion that outside royalty payments gen\xc2\xad\nerally are not intended to be compensation for government services. It is unlikely\nthat a payor would expressly indicate an intent \xe2\x80\x9c to compensate for government\nservice.\xe2\x80\x9d Id. (third factor). To the contrary, the circumstances typically would\n173\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nindicate that the payor \xe2\x80\x9c was motivated by a desire other than to compensate the\nemployee for her government service\xe2\x80\x9d Id. (fourth factor) \xe2\x80\x94 the desire to obtain\nproperty rights to an invention that it views as valuable. This value would not\nnormally come from the fact that the employee-inventor developed his or her\ninvention while working as a government employee. Presumably, a payor would\nbe just as interested in acquiring rights to such an invention if the inventor were\nnot a federal employee. Moreover, the payments \xe2\x80\x9c would be distributed on a basis\nunrelated to government service.\xe2\x80\x9d Id. (sixth factor). They would not be calibrated\nto reflect the amount of government time the employee devoted to developing\nthe invention but only to the value o f the invention. In sum, these factors point\nto the conclusion that payors would not be compensating employee-inventors for\ngovernment service, but instead would be motivated by the economic advantages\nof securing property rights to a potentially valuable invention. \xe2\x80\x9c This Department\nhas consistently construed \xc2\xa7 209(a) and its predecessor, 18 U.S.C. \xc2\xa7 1914, to forbid\nonly payments intended to serve as additional compensation to an individual for\nundertaking or performing government service.\xe2\x80\x9d See Gifts Received on Official\nTravel, 8 Op. O.L.C. 143, 144 (1984) (citing 41 Op. Att\xe2\x80\x99y Gen. 217, 221 (1955);\n39 Op. Att\xe2\x80\x99y Gen. 501, 503 (1940)) (emphasis added) (internal quotation marks\nomitted).\nOne other factor\xe2\x80\x94 \xe2\x80\x9c whether payments would also be made to non-government\nemployees\xe2\x80\x9d \xe2\x80\x94 at the least would not point to the contrary conclusion. We have\nnot been apprised of any situation in which a particular licensee has entered into\nlicensing agreements only with government-employed inventors, or in which, in\ninstances where patent rights are held jointly by a federal employee and another\ninventor who is not employed by the federal government, a licensee has paid\na disproportionately large share of the royalties to the federal employee.\nThe two remaining factors set forth in our 1997 opinion\xe2\x80\x94 \xe2\x80\x9c whether there is\na substantial relationship or pattern o f dealings between the agency and the payor\xe2\x80\x9d\nand \xe2\x80\x9c whether the employee is in a position to influence the government on behalf\nof the payor,\xe2\x80\x9d 21 Op. O.L.C. at 206 \xe2\x80\x94 may be applicable to some, though not\nall, licensing arrangements between a private entity and a government employee.\nEven in those circumstances in which these factors are present, however, we\nbelieve the independent prohibition in 18 U.S.C. \xc2\xa7208 should ensure that royalty\npayments are not made \xe2\x80\x9c as compensation for\xe2\x80\x9d the employee-inventor\xe2\x80\x99s govern\xc2\xad\nment services. These two factors follow from the Supreme Court\xe2\x80\x99s explication\nof \xc2\xa7 209 in Crandon v. United States, 494 U.S. 152, 158 (1990). The Crandon\nCourt observed that \xc2\xa7 209 was intended to prevent an outside payor from having\na \xe2\x80\x9c hold on the employee deriving from his ability to cut off one of the employee\xe2\x80\x99s\neconomic lifelines,\xe2\x80\x9d and to address the tendency of an employee \xe2\x80\x9c to favor his\noutside payor even though no direct pressure is put on him to do so.\xe2\x80\x9d Id. at\n174\n\n\x0cApplication o f 18 U.S.C. \xc2\xa7209 to Employee-inventors Who Receive Outside Royalty Payments\n\n165 (quoting Association of the Bar of the City of New York, Conflict o f Interest\nand Federal Service 211 (I960)) (internal quotation marks omitted).3\nWhere a private entity purchases the right to use a government employee\xe2\x80\x99s valu\xc2\xad\nable patent rights and the employee does no further work relating to the patent,\nneither the \xe2\x80\x9c substantial relationship\xe2\x80\x9d nor the \xe2\x80\x9c position to influence\xe2\x80\x9d factors\nshould typically apply. In such situations, therefore, royalty payments would not,\nabsent unusual circumstances, constitute \xe2\x80\x9c compensation for\xe2\x80\x9d government serv\xc2\xad\nices. According to your letter, however, in some cases, \xe2\x80\x9c employee[-inventor]s\nmay continue to work, as part of their official duties, on certain aspects of the\nproduct or process for which they have been permitted to obtain certain patent\nrights. This additional work may include, among other things, technical improve\xc2\xad\nments to the invention or research on new uses for the invention.\xe2\x80\x9d Potts letter\nat 1; see also 17 Op. O.L.C. at 47 (discussing this practice). When the government\nand the payor are collaborating through a CRADA, there would likely be a\n\xe2\x80\x9c substantial relationship or pattern of dealings between the agency and the\npayor.\xe2\x80\x9d 21 Op. O.L.C. at 206. Even when there is no CRADA, concerns may\nbe raised if in developing or refining the invention the employee-inventor \xe2\x80\x9c is\nin a position to influence the government on behalf of the payor.\xe2\x80\x9d Id.\nNevertheless, in the context of employee-inventors who receive outside royalty\npayments, these concerns are largely eliminated by the independent prohibition\nof \xc2\xa7208. C f Crandon, 494 U.S. at 166 (noting that \xe2\x80\x9c the [\xc2\xa7209] concern that\nthe employee might tend to favor his former employer\xe2\x80\x9d can be addressed by\n\xe2\x80\x9c other rules [that] disqualify the employee from participating in any matter\ninvolving a former employer\xe2\x80\x9d ). Section 208 requires employee-inventors to recuse\nthemselves from agency actions when they have a financial interest in a particular\nmatter. Section 208 thus bars employee-inventors who receive outside royalty pay\xc2\xad\nments from continuing to participate in research concerning their inventions,\nincluding CRADAs. See 17 Op. O.L.C. at 53. This prohibition on participation\nin matters in which employee-inventors have financial interests prevents them\nfrom being \xe2\x80\x9c in a position to influence the government on behalf of the payor,\xe2\x80\x9d\neven if \xe2\x80\x9c there is a substantial relationship or pattern of dealings between the\nagency and the payor.\xe2\x80\x9d 21 Op. O.L.C. at 206.4]\nTo be sure, \xc2\xa7208 may be waived \xe2\x80\x9c upon a written determination that the dis\xc2\xad\nqualifying interest of the employee is \xe2\x80\x98not so substantial as to be deemed likely\nto affect the integrity of the services which the government may expect\xe2\x80\x99 from\nthe employee.\xe2\x80\x9d See W aiver o f the Application o f Conflict o f Interest Laws fo r\n3 The Court noted that \xc2\xa7209 is also aimed at preventing the \xe2\x80\x9c suspicion and bitterness among fellow employees\nand other observers\xe2\x80\x9d that can occur when employees are receiving compensation from outside sources Id.\n4 We do not address whether there could be facts under which an employee-inventor would have a financial interest\nunder \xc2\xa7208 before licensing an invention However, although our 1993 opinion did not reach this issue, it noted\nthat after the government decides not to take up foreign patent nghts (but before the em ployee-inventor licenses\nthose nghts), the employee-inventor\xe2\x80\x99s possession o f foreign patent nghts \xe2\x80\x9c consitute[sJ an integral part o f the FTTA\nincentive program created by Congress\xe2\x80\x9d and \xe2\x80\x9c that \xc2\xa7208 can and should be interpreted as consistent with the provi\xc2\xad\nsions o f the FTTA.\xe2\x80\x9d 17 Op O L C . at 50, 53\n\n175\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nM em bers o f the P residen t\xe2\x80\x99s Commission on Strategic Forces, 1 Op. O.L.C. 10,\n\n12-13 (1983) (quoting 18 U.S.C. \xc2\xa7 208(b)). Nevertheless, although that determina\xc2\xad\ntion is left to the discretion of the official who appointed the employee, \xe2\x80\x9c [i]t\nis the responsibility of that official to exercise his considerable discretion soundly\nand in good faith, after a careful and thorough consideration of all of the pertinent\nfacts.\xe2\x80\x9d Id. at 14-15. In these circumstances, possible concerns about the divided\nloyalty of an employee are adequately addressed under \xc2\xa7 208, including the stand\xc2\xad\nards for waivers. See 5 C.F.R. \xc2\xa7 2640.301 (2000).\nIn view of \xc2\xa7 208, a broad interpretation of \xc2\xa7 209 would not advance any statutory\npurpose. Cf. Beth Nolan, Public Interest, Private Income: Conflicts and Control\nLimits on the Outside Income of Government Officials, 87 NW. U. L. Rev. 57,\n80 (1992) ( \xe2\x80\x9c The law prohibits not private gain per se, but rather prohibits private\ngain that impairs the integrity of services provided to the government, that creates\nthe appearance of misuse of government office, or that requires others to pay\nto receive access to or services from the government.\xe2\x80\x9d ). Indeed, a ban on\nemployee-inventors\xe2\x80\x99 receiving any royalties from their inventions might well run\ncounter to congressional intent. As the Crandon Court recognized, \xc2\xa7 209 was not\nintended to \xe2\x80\x9c impair the ability of the Government to recruit personnel of the\nhighest quality and capacity.\xe2\x80\x9d 494 U.S. at 166 (quoting Message from the Presi\xc2\xad\ndent o f the United States Relative to Ethical Conduct in the Government, H.R.\nDoc. No. 145, 87th Cong., 1st Sess. 2 (1961)). We understand that a ban on\noutside royalties could impede, perhaps severely, the government\xe2\x80\x99s ability to\nattract and retain talented employees in the relevant labor markets because it\nwould increase the already considerable income gap between private and public\nsector employment. See Potts letter at 12 (\xe2\x80\x9c The application of section 209 to\nthis situation would mean that employee-inventors would have to leave Govern\xc2\xad\nment if they wanted to commercialize patents obtained under section 8\xe2\x80\x9d of the\nFTTA.); c f Crandon, 494 U.S. at 167 n.22 ( \xe2\x80\x9c The reach of [\xc2\xa7209\xe2\x80\x99s predecessor]\nhad long been recognized as a serious obstacle to recruitment of men for govern\xc2\xad\nment office . . . .\xe2\x80\x9d ).\nAn overly broad interpretation o f \xc2\xa7209 would also frustrate the purposes of\nthe FTTA. Congress passed the FTTA to increase use of federally-developed tech\xc2\xad\nnology by the private sector in order \xe2\x80\x9c to improve the economic, environmental,\nand social well-being of the United States.\xe2\x80\x9d 15 U.S.C. \xc2\xa73702. Congress expected\nemployee-inventors to obtain and exploit patent rights to their inventions when\nthe government opted not to retain its rights. See S. Rep. No. 99-283, at 14 (1986),\nreprinted in 1986 U.S.C.C.A.N. 3442, 3456. As we observed in our opinion inter\xc2\xad\npreting \xc2\xa7208 and the FTTA, \xe2\x80\x9c [i]t is well settled that statutes must be construed\nas consistent if possible.\xe2\x80\x9d 17 Op. O.L.C. at 50 (citing Watt v. Alaska, 451 U.S.\n259, 266-67 (1981) and Patterson v. McLean C redit Union, 491 U.S. 164, 181\n(1989)). \xe2\x80\x9c [A] specific policy embodied in a later federal statute should control\nour construction o f the [earlier] statute, even though it ha[s] not been expressly\n176\n\n\x0cApplication o f 18 U.S C. \xc2\xa7209 to Employee-inventors Who Receive Outside Royalty Payments\n\namended.\xe2\x80\x9d FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143\n(2000) (quoting United States v. Estate o f Romani, 523 U.S. 517, 530-31 (1998));\nsee also Patterson, 491 U.S. at 181 (stating that courts should hesitate to \xe2\x80\x9c read\nan earlier statute broadly where the result is to circumvent\xe2\x80\x9d a later-enacted statu\xc2\xad\ntory scheme). If \xc2\xa7 209 were interpreted to prohibit employee-inventors from\nlicensing their inventions to private entities, the exploitation of those inventions\nwould languish because employees would have little incentive to \xe2\x80\x9c move the[ir]\ninvention[s] into the private sector.\xe2\x80\x9d S. Rep. No. 99-283, at 14, reprinted in 1986\nU.S.C.C.A.N. at 3456. Such a construction would hinder one of the FTTA\xe2\x80\x99s pur\xc2\xad\nposes.5\nFinally, to the extent that the \xe2\x80\x9c as compensation for services\xe2\x80\x9d language of \xc2\xa7209\nis ambiguous, it should be interpreted in light of the rule of lenity. See Crandon,\n494 U.S. at 182-83 (Scalia, J., concurring in the judgment) (referring to that lan\xc2\xad\nguage as a \xe2\x80\x9c troublesome phrase\xe2\x80\x9d devoid of a \xe2\x80\x9c clear and constant meaning\xe2\x80\x9d );\nid. at 178 (describing administrative interpretations of the phrase as \xe2\x80\x9c unpredict\xc2\xad\nable\xe2\x80\x9d ); see also Nolan, supra, at 102 (describing \xc2\xa7209\xe2\x80\x99s meaning as \xe2\x80\x9c uncertain\xe2\x80\x9d\nand noting that \xe2\x80\x9c interpretations of section 209 and its predecessors have some\xc2\xad\ntimes been tortured\xe2\x80\x9d ). Interpreting different language in \xc2\xa7209, the Crandon Court\nlooked to this \xe2\x80\x9c time-honored interpretive guideline\xe2\x80\x9d that ambiguities in criminal\nstatutes should be construed narrowly because of the due process requirement of\n\xe2\x80\x9c fair warning of the boundaries of criminal conduct.\xe2\x80\x9d Crandon, 494 U.S. at 158\n(quoting Liparota v. United States, 471 U.S. 419, 427 (1985)). In general,\n\xe2\x80\x9c [cjriminal statutes should be given the meaning their language most obviously\ninvites. Their scope should not be extended to conduct not clearly within their\nterms.\xe2\x80\x9d United States v. Williams, 341 U.S. 70, 82 (1951) (plurality opinion).\nConclusion\nWe therefore conclude that, in the usual case, \xc2\xa7 209 does not bar employeeinventors from receiving outside royalties. As you observe in your letter, \xe2\x80\x98\xe2\x80\x98in any\nsection 209 analysis, the facts of individual cases would have to be examined.\xe2\x80\x9d\nPotts letter at 11 n.7. In the typical case, however, we do not think that outside\nroyalties would be paid \xe2\x80\x9c as compensation for [the employee-inventor\xe2\x80\x99s] services\nas an officer or employee of the executive branch.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 209(a).\nRANDOLPH D. MOSS\nAssistant Attorney General\nOffice o f Legal Counsel\n5 As you note, the legislative history o f ihe FTTA indicates that Congress intended to \xe2\x80\x9c make no changes in\nthe conflict o f interest laws affecting Federal employees or former Federal employees \xe2\x80\x9d Potts letter at 5 (quoting\nS Rep. No 99-283, at 10, reprinted in 1986 U S C.C A N at 3451) As discussed above, however, we believe\nthat \xc2\xa7209 is best read as ordinarily not bam ng outside royalty payments. On this view, it was not necessary for\nCongress to amend that section when it enactcd the FTTA.\n\n177\n\n\x0c'