Access of Department of Justice Inspector General to Certain Information Protected from Disclosure by Statute

Access of Department of Justice Inspector General to
Certain Information Protected from Disclosure by Statute
Department of Justice officials may disclose information protected by the Federal Wiretap
Act (Title III of the Omnibus Crime Control and Safe Streets Act of 1968), Rule 6(e)
of the Federal Rules of Criminal Procedure, and section 626 of the Fair Credit Report-
ing Act to the Department’s Office of the Inspector General (“OIG”) in connection
with many, but not all, of OIG’s investigations and reviews.
Section 6(a)(1) of the Inspector General Act of 1978 does not supersede the limitations on
disclosure contained in Title III, Rule 6(e), and section 626.
Section 218 of the Consolidated and Further Continuing Appropriations Act, 2015, also
does not supersede the limitations on disclosure contained in Title III, Rule 6(e), and
section 626.

July 20, 2015

MEMORANDUM OPINION FOR THE
DEPUTY ATTORNEY GENERAL *

You have asked whether the Department of Justice (the “Department”)
may lawfully provide the Department’s Office of the Inspector General
(“OIG”) with access to documents containing certain kinds of statutorily

* Editor’s Note: After this opinion was issued, Congress amended section 6(a) of the
Inspector General Act to provide that inspectors general are authorized
to have timely access to all records, reports, audits, reviews, documents, papers,
recommendations, or other materials available to the applicable establishment
which relate to the programs and operations with respect to which that Inspector
General has responsibilities under this Act . . . notwithstanding any other provision
of law, except pursuant to any provision of law enacted by Congress that expressly
. . . refers to the Inspector General; and . . . limits the right of access of the Inspec-
tor General.
Inspector General Empowerment Act of 2016, Pub. L. No. 114-317, sec. 5(1), § 6(a)(1)(A),
(B) (codified at 5 U.S.C. app. § 6(a)(1)(A), (B)). The amended statute also provides a
special procedure for access to “Federal grand jury materials protected from disclosure
pursuant to rule 6(e) of the Federal Rules of Criminal Procedure.” Id. § 6(a)(1)(C)). This
Office analyzed inspector general access under statutory provisions similar to those in
the amended section 6(a) in Effect of Appropriations Rider on Access of DOJ Inspector
General to Certain Protected Information, 40 Op. O.L.C. 39 (2016).

12
 Access of DOJ IG to Certain Information Protected from Disclosure by Statute

protected information. 1 In particular, you have asked whether the Depart-
ment may grant OIG access, in connection with OIG audits, investiga-
tions, and reviews, to information protected by the Federal Wiretap Act;
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as
amended, 18 U.S.C. §§ 2510–2522 (“Title III”); Rule 6(e) of the Federal
Rules of Criminal Procedure (“Rule 6(e)”); and section 626 of the Fair
Credit Reporting Act, 15 U.S.C. § 1681u (“FCRA”). Subject to certain
exceptions, each of these statutes restricts the disclosure of particular
categories of information: Title III limits the Department’s authority to
disclose the contents of intercepted communications; Rule 6(e) limits the
Department’s authority to disclose grand jury materials; and section 626
of FCRA limits the authority of the Federal Bureau of Investigation
(“FBI”) to disclose consumer information obtained pursuant to National
Security Letters issued under section 626. At the same time, however,
section 6(a)(1) of the Inspector General Act of 1978, as amended,
5 U.S.C. app. (the “IG Act”), authorizes OIG “to have access to all rec-
ords, reports, audits, reviews, documents, papers, recommendations, or
other material” available to the Department and relevant to the programs
and operations OIG is charged with reviewing. 5 U.S.C. app. § 6(a)(1).
In views letters submitted in connection with the preparation of this
opinion, OIG, together with certain other interested entities, argues that
section 6(a)(1) of the IG Act grants it an unqualified right of access to
Department records relevant to its audits, investigations, and reviews,
notwithstanding any limitations on disclosure imposed by Title III, Rule
6(e), or section 626 of FCRA. OIG also argues that, even leaving section
6(a)(1) aside, the relevant statutory exceptions in Title III, Rule 6(e), and
section 626 permit the Department and its components to disclose protect-
ed information to OIG when that information is pertinent to its audits,
investigations, or reviews. Certain other Department components disa-
gree, arguing that the statutory exceptions in Title III, Rule 6(e), and

1 See Memorandum for Karl Thompson, Acting Assistant Attorney General, Office of

Legal Counsel, from James M. Cole, Deputy Attorney General (May 24, 2014) (“Opinion
Request”). Our Office received a request for an opinion on the same subject in 2011, but
that request was withdrawn. See Letter for Cynthia Schnedar, Acting Inspector General,
from James M. Cole, Deputy Attorney General (Mar. 16, 2012). In preparing this opinion,
we have considered views submitted in connection with both requests.

13
 39 Op. O.L.C. 12 (2015)

section 626 permit disclosure of protected information to OIG only in a
limited set of circumstances, and that the limits on disclosure apply even
when OIG requests material under section 6(a)(1) of the IG Act. 2

2 See E-mail for John E. Bies, Deputy Assistant Attorney General, Office of Legal

Counsel, from William M. Blier, General Counsel, OIG (Apr. 29, 2015, 6:37 PM) (“OIG
2015 E-mail”); Memorandum for the Acting Assistant Attorney General, Office of Legal
Counsel, from Michael E. Horowitz, Inspector General (June 24, 2014) (“OIG 2014
Memorandum”); Memorandum for the Attorney General from Cynthia A. Schnedar,
Acting Inspector General (Dec. 16, 2011) (“OIG Grand Jury Memorandum”); Memoran-
dum for the Deputy Attorney General from Cynthia A. Schnedar, Acting Inspector
General (Dec. 16, 2011) (“OIG Title III Memorandum”); Memorandum for the Deputy
Attorney General from Cynthia A. Schnedar, Acting Inspector General (Dec. 6, 2011)
(“OIG FCRA Memorandum”); Memorandum for Caroline D. Krass, Principal Deputy
Assistant Attorney General, Office of Legal Counsel, from Carol F. Ochoa, Assistant
Inspector General, Oversight and Review Division (Mar. 9, 2011) (“OIG Supplemental
Memorandum”); Memorandum for Paul P. Colborn, Special Counsel, Office of Legal
Counsel, from Carol F. Ochoa, Assistant Inspector General, Oversight and Review
Division (Dec. 17, 2010) (“OIG Memorandum”); see also Memorandum for John Bies,
Deputy Assistant Attorney General, Office of Legal Counsel, from Leslie R. Caldwell,
Assistant Attorney General, Criminal Division (July 14, 2014); Letter for John E. Bies,
Deputy Assistant Attorney General, Office of Legal Counsel, from Phyllis K. Fong,
Chair, and Lynne A. McFarland, Vice Chair, Council of the Inspectors General on
Integrity and Efficiency (“CIGIE”) (June 24, 2014); Memorandum for John E. Bies,
Deputy Assistant Attorney General, Office of Legal Counsel, from G. Bradley Weins-
heimer, Deputy Counsel, Office of Professional Responsibility (June 24, 2014); E-mail
for John E. Bies, Deputy Assistant Attorney General, Office of Legal Counsel, from
Jocelyn Aqua, National Security Division (Mar. 2, 2012, 3:54 PM) (“NSD E-mail”);
Memorandum for Virginia A. Seitz, Assistant Attorney General, Office of Legal Counsel,
from Lanny A. Breuer, Assistant Attorney General, Criminal Division (Feb. 16, 2012);
Letter for John E. Bies, Deputy Assistant Attorney General, Office of Legal Counsel,
from Phyllis K. Fong, Chair, and Carl Clinefelter, Vice Chair, CIGIE (Oct. 7, 2011);
Memorandum for the Office of the Deputy Attorney General, from Patrick W. Kelley,
Acting General Counsel, FBI (Oct. 5, 2011); Memorandum for John Bies, Deputy Assis-
tant Attorney General, Office of Legal Counsel, from Lanny A. Breuer, Assistant Attor-
ney General, Criminal Division (Apr. 12, 2011); Memorandum for Jonathan G. Cedar-
baum, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from
Valerie Caproni, General Counsel, FBI (Jan. 13, 2011) (“FBI Memorandum”).
In addition, although the Office does not solicit views from outside the Executive
Branch, we received a letter concerning the issues addressed in this opinion from Senator
Charles E. Grassley and Representative John Conyers, then-Ranking Members of the
Senate and House Committees on the Judiciary. See Letter for Karl R. Thompson, Acting
Assistant Attorney General, Office of Legal Counsel, from Charles E. Grassley, Ranking
Member, Committee on the Judiciary, U.S. Senate, and John Conyers, Ranking Member,

14
 Access of DOJ IG to Certain Information Protected from Disclosure by Statute

For the reasons set forth below, we conclude that the statutory excep-
tions in Title III, Rule 6(e), and section 626 of FCRA permit the Depart-
ment to disclose to OIG the covered information it seeks in most, but not
all, of the circumstances in which OIG might request it. In particular,
Title III permits Department officials to disclose to OIG the contents of
intercepted communications when doing so could aid the disclosing
official or OIG in the performance of their duties related to law enforce-
ment, including duties related to Department leadership’s supervision of
law enforcement activities on a programmatic or policy basis. Rule 6(e)
permits disclosure of grand jury materials to OIG if a qualifying attorney
determines that such disclosure could assist her in the performance of her
criminal law enforcement duties, including any supervisory law enforce-
ment duties she may have. And FCRA permits the FBI to disclose to OIG
consumer information obtained pursuant to section 626 if such disclosure
could assist in the approval or conduct of foreign counterintelligence
investigations, including in the supervision of such investigations on a
programmatic or policy basis. In our view, however, Title III and Rule
6(e) forbid disclosures that have either an attenuated or no connection
with the conduct of the Department’s criminal law enforcement programs
or operations, and section 626 of FCRA forbids disclosures that have
either an attenuated or no connection with the approval or conduct of
foreign counterintelligence investigations.
We further conclude that, to the extent that Title III, Rule 6(e), and sec-
tion 626 prohibit Department officials from disclosing information to
OIG, section 6(a)(1) of the IG Act does not override these prohibitions.
Under longstanding interpretive principles, general access provisions like
section 6(a)(1) are generally construed not to override specific, carefully
drawn limitations on disclosure like Title III, Rule 6(e), and section 626
unless Congress has clearly indicated that it intends the general access
provision to have that effect. And in our view, the text of the IG Act
contains no clear indication that Congress intended section 6(a)(1) to
override Title III, Rule 6(e), or section 626. The Act’s legislative history,
moreover, affirmatively indicates that Congress expected an inspector
general’s right of access to be subject to statutory limits on disclosure.

Committee on the Judiciary, U.S. House of Representatives (Oct. 10, 2014). We appreci-
ate Senator Grassley’s and Representative Conyers’s interest in these issues, and have
considered their views in preparing this opinion.

15
 39 Op. O.L.C. 12 (2015)

In reaching these conclusions, our Office’s role has not been to decide
what access OIG should receive as a matter of policy. Rather, we have
endeavored to determine as a matter of law, using established tools of
statutory construction, how best to reconcile the strong privacy protec-
tions embodied in Title III, Rule 6(e), and section 626 with the interest in
access reflected in section 6(a)(1) of the IG Act.
This opinion has four parts. In Part I, we set forth some statutory back-
ground related to the IG Act, and explain the potential statutory conflict
that arises when OIG, relying on the IG Act’s general access provision,
requests material that is also covered by the nondisclosure provisions in
Title III, Rule 6(e), or section 626 of FCRA. In Part II, we examine Title
III, Rule 6(e), and section 626 to determine whether the exceptions in
those statutes permit disclosure of the protected materials OIG seeks,
thereby avoiding the potential conflict between those statutes and the IG
Act. In Part III, having concluded that this conflict cannot be avoided in
all circumstances, we explain why, in our view, the general access provi-
sion in section 6(a)(1) of the IG Act does not override the specific protec-
tions of sensitive information contained in Title III, Rule 6(e), and section
626. Finally, in Part IV, we discuss a Fiscal Year 2015 appropriations
rider concerning the disclosure of Department materials to OIG and
conclude that it too does not abrogate the specific protections of sensitive
information found in those statutes. 3

I.

Congress enacted the IG Act in 1978 to “create independent and objec-
tive units” within the Executive Branch that would promote the integrity
of executive agencies and keep executive officials and Congress fully
informed about their operations. 5 U.S.C. app. § 2. To achieve these
goals, the Act created an Office of Inspector General in a large number of
federal agencies. Id. §§ 2(A), 8G(a)–(b), 12(2). 4 Each office is led by an

3 You have asked only whether it would be “lawful[]” for the Department to provide
OIG information protected by Title III, Rule 6(e), and section 626 of FCRA. Opinion
Request. Accordingly, we do not address in this opinion whether and, if so, under what
circumstances the Department could lawfully withhold information it is legally permitted
to disclose.
4 The IG Act uses the term “establishment” to refer to those enumerated agencies, de-

partments, commissions, boards, and corporations in which Congress created an Office of

16
 Access of DOJ IG to Certain Information Protected from Disclosure by Statute

inspector general who is charged with auditing, investigating, detecting
fraud and abuse in, and making recommendations and reports about the
agency’s “programs and operations.” Id. §§ 3(a), 4(a), 5. Each inspector
general must “keep the head of [his agency] and the Congress fully and
currently informed” about fraud, abuse, deficiencies, and other serious
problems in “the administration of programs and operations administered
or financed by such” agency, and “recommend corrective action” to
address any problems he identifies. Id. § 4(a)(5). Inspectors general must
“report to” and are placed “under the general supervision of ” the heads of
their agencies. However, the head of an agency generally may not “pre-
vent or prohibit the Inspector General from initiating, carrying out, or
completing any audit or investigation.” Id. § 3(a).
Pursuant to their statutory mandate, inspectors general engage in a
wide variety of audits, investigations, and reviews. The Department’s
OIG, for example, conducts investigations of suspected criminal wrong-
doing by Department employees; investigations of administrative mis-
conduct that may or may not rise to the level of criminal wrongdoing;
and broader reviews of Department programs and operations that seek to
assess whether the programs are lawful, well run, or otherwise in the
public interest. See Office of the Inspector General, U.S. Dep’t of Jus-
tice, Semiannual Report to Congress: Apr. 1, 2014–Sept. 30, 2014 at 13–
14 (Oct. 31, 2014) (“Semiannual Report”); 28 C.F.R. § 0.29a(b)(2), (4).
The Department’s OIG also conducts financial and administrative audits
of Department components. See Semiannual Report at 13; 28 C.F.R.
§ 0.29a(b)(1). Significantly, however, while the IG Act affords inspec-
tors general broad authority to investigate an agency’s programs and
operations, it does not in most cases allow inspectors general to conduct
activities “constituting an integral part of the programs involved,” In-
spector General Authority to Conduct Regulatory Investigations, 13 Op.
O.L.C. 54, 62 (1989) (“Authority to Conduct Regulatory Investiga-
tions”), and it prohibits the heads of federal agencies from transferring

the Inspector General. 5 U.S.C. app. § 12(2). The Act also refers to “designated Federal
entit[ies],” defined to include a different list of government corporations and other
entities, and directs that “there shall be established and maintained in each designated
Federal entity an Office of Inspector General.” Id. § 8G(b). Throughout this opinion, we
will refer to the federal establishments and entities subject to the IG Act, collectively, as
“agencies.”

17
 39 Op. O.L.C. 12 (2015)

to inspectors general any of the agency’s “program operating responsi-
bilities,” 5 U.S.C. app. § 9(a). 5
The IG Act also grants inspectors general several enumerated authori-
ties that help them carry out their statutory duties, such as the authority to
issue subpoenas, take sworn testimony, and hire staff. See id. § 6(a)(4),
(5), (7). Especially relevant here is the authority to obtain records and
other materials from the agency over which an inspector general has
investigative jurisdiction. This authority is set forth in section 6(a)(1),
which provides:
[E]ach Inspector General, in carrying out the provisions of this Act,
is authorized . . . to have access to all records, reports, audits, re-
views, documents, papers, recommendations, or other material avail-
able to the applicable [agency] which relate to programs and opera-
tions with respect to which that Inspector General has responsi-
bilities under this Act.
Id. § 6(a)(1). In addition to granting each inspector general access to
materials available to his agency and within his investigative jurisdiction,
this provision implicitly imposes a corresponding duty on the applicable
agency to provide the inspector general with such access upon request.
In the case of the Department (and certain other agencies), however, the
IG Act qualifies this broad disclosure requirement. As originally enacted,
the IG Act did not establish an Office of the Inspector General in the
Justice Department. When Congress extended the Act’s provisions to the
Department in 1988, see Inspector General Act Amendments of 1988,
Pub. L. No. 100-504, § 102(c), 102 Stat. 2515, 2515–16, Congress limited
OIG’s authority to investigate matters involving certain kinds of infor-
mation, in recognition of the sensitivity of much of the Department’s
work, see H.R. Rep. No. 100-1020, at 24 (1988) (Conf. Rep.). Specifical-
ly, section 8E(a)(1) of the Act provides that the Department’s Inspector
General “shall be under the authority, direction, and control of the Attor-

5 Some of OIG’s statutory responsibilities, such as conducting investigations of sus-

pected criminal wrongdoing by Department employees, see 5 U.S.C. app. § 8E(b)(2), (4),
may involve the same kinds of activities as the “program operating responsibilities” of
other Department components. The IG Act does not prevent OIG from carrying out these
activities pursuant to its statutory authority. See Authority to Conduct Regulatory Investi-
gations, 13 Op. O.L.C. at 66–67 & n.21.

18
 Access of DOJ IG to Certain Information Protected from Disclosure by Statute

ney General with respect to audits or investigations, or the issuance of
subpoenas, which require access to sensitive information concerning”
certain enumerated matters, such as “ongoing civil or criminal investiga-
tions or proceedings,” “undercover operations,” and “other matters the
disclosure of which would constitute a serious threat to national security.”
5 U.S.C. app. § 8E(a)(1). Section 8E(a)(2) similarly provides that the
Attorney General may “prohibit the Inspector General from carrying out
or completing any audit or investigation . . . if the Attorney General
determines that such prohibition is necessary to prevent the disclosure of
any information described under [section 8E(a)(1)] or to prevent the
significant impairment to the national interests of the United States.” Id.
§ 8E(a)(2). Section 8E thus provides a mechanism through which the
Attorney General can “prevent the disclosure” of certain sensitive infor-
mation to which OIG would otherwise be entitled under section 6(a)(1).
Id.
The IG Act, moreover, is not in all circumstances the only statute that
governs OIG’s access to Department materials. As noted above, in con-
ducting its audits, investigations, and reviews, OIG has sometimes re-
quested materials that include the contents of wire, oral, or electronic
communications the Department has intercepted pursuant to Title III;
information the Department has acquired in the course of grand jury
proceedings; and consumer information the FBI has obtained using Na-
tional Security Letters issued under section 626 of FCRA. And while such
information falls within the broad terms of section 6(a)(1) of the IG Act,
its use and disclosure is also regulated, and in many circumstances pro-
hibited, by Title III, Rule 6(e), and section 626. 6 Specifically, as we
discuss in more detail below, Title III bars investigative and law enforce-
ment officers from using or disclosing the contents of lawfully intercepted
communications unless a statutory exception to Title III’s disclosure
prohibitions applies, see 18 U.S.C. § 2517, and imposes administrative,
civil, and sometimes criminal sanctions for unauthorized disclosure, see

6 Because Congress enacted Rule 6(e) in 1977, see Pub. L. No. 95-78, § 2, 91 Stat.

319, 319, it is “by any definition . . . a statute.” Fund for Constitutional Gov’t v. Nat’l
Archives & Records Serv., 656 F.2d 856, 867 (D.C. Cir. 1981) (concluding that grand jury
information protected from disclosure by Rule 6(e) is information “specifically exempted
from disclosure by statute” within the meaning of Exemption 3 of the Freedom of Infor-
mation Act, 5 U.S.C. § 552(b)(3)).

19
 39 Op. O.L.C. 12 (2015)

id. §§ 2520(a), (f ), (g), 2511(1)(e), (4)(a). Rule 6(e) prohibits “attorney[s]
for the government” and other specified individuals from disclosing “a
matter occurring before the grand jury” except pursuant to a specific
exception, Fed. R. Crim. P. 6(e)(2)(B), and makes a knowing violation of
that prohibition punishable “as a contempt of court,” Fed. R. Crim. P.
6(e)(7). And section 626 of FCRA prohibits the FBI from disclosing
consumer information obtained pursuant to a National Security Letter (a
kind of written request for information in connection with a counterterror-
ism or intelligence investigation) except as authorized by one of the
exceptions provided in the statute, see 15 U.S.C. § 1681u(f ), and makes
unauthorized disclosure a basis for civil damages and disciplinary action,
see id. § 1681u(i)–( j).
As a result, in responding to OIG requests for materials covered by
Title III, Rule 6(e), or section 626, Department officials face potentially
conflicting statutory directives. Title III, Rule 6(e), and section 626
prohibit the Department from disclosing such materials—on pain of
contempt, administrative and civil sanctions, and sometimes criminal
penalties—unless a statutory exception applies. The IG Act, in contrast,
requires the Department to disclose “all” materials that are available to
the Department, relate to an OIG review of programs or operations with-
in its investigative jurisdiction, and are not covered by a determination to
withhold them under section 8E.
Where two statutes govern the same subject matter, the Supreme
Court has instructed that the statutes are to be read in pari materia and
construed, where possible, as part of a single and coherent regulatory
scheme. See Morton v. Mancari, 417 U.S. 535, 551 (1974) (“When there
are two acts upon the same subject, the rule is to give effect to both if
possible.” (quoting United States v. Borden Co., 308 U.S. 188, 198
(1939))); see also, e.g., FCC v. NextWave Personal Commc’ns, 537 U.S.
293, 304 (2003); J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc.,
534 U.S. 124, 143–44 (2001); Vimar Seguros y Reaseguros, S.A. v. M/V
Sky Reefer, 515 U.S. 528, 533 (1995); Ruckelshaus v. Monsanto Co.,
467 U.S. 986, 1018 (1984). Only where a harmonious construction of
two statutes is impossible should one be construed as overriding or
implicitly repealing the other. Mancari, 417 U.S. at 551. Accordingly,
before considering whether the general access requirement in section
6(a)(1) of the IG Act overrides the disclosure restrictions in Title III,

20
 Access of DOJ IG to Certain Information Protected from Disclosure by Statute

Rule 6(e), and section 626 of FCRA, we examine the latter three statutes
to determine whether and to what extent they permit disclosures to OIG.

II.

A.

We begin with Title III. Congress enacted this statute in the wake of the
Supreme Court’s decisions in Berger v. New York, 388 U.S. 41 (1967),
and Katz v. United States, 389 U.S. 347 (1967), which held that electronic
surveillance constitutes a search subject to the limits imposed by the
Fourth Amendment. In response to these rulings, Congress created a
comprehensive statutory scheme governing the interception, use, and
disclosure of wire, oral, and electronic communications, see 18 U.S.C.
§§ 2510–2522, thereby establishing a mechanism through which law en-
forcement officials could conduct electronic surveillance in a manner that
“me[t] the constitutional requirements” enunciated in Berger and Katz.
United States v. U.S. Dist. Court for E. Dist. of Mich., S. Div., 407 U.S.
297, 302 (1972); see Scott v. United States, 436 U.S. 128, 130 (1978)
(noting that Title III was intended to “provide law enforcement officials
with some of the tools thought necessary to combat crime without unnec-
essarily infringing upon the right of individual privacy”). Title III permits
the Attorney General and other Department leadership officials to author-
ize investigative or law enforcement officers to apply for court orders
allowing them to intercept wire, oral, or electronic communications. See
18 U.S.C. §§ 2510, 2516(1), (3), 2518(1)(a); see also id. § 2516(2) (au-
thorizing applications by certain state attorneys). And it permits courts to
grant such orders if the government makes a series of procedural and
evidentiary showings, including a showing that the interception “may
provide or has provided” evidence of any of dozens of enumerated federal
offenses (or, for the interception of an electronic communication, evi-
dence of “any Federal felony”). Id. §§ 2516(1), (3), 2518.
Once an investigative or law enforcement officer has lawfully inter-
cepted a communication, Title III prohibits that officer from further
disclosing the contents of the communication—and, as noted above,
subjects her to potential administrative, civil, or criminal sanctions if she
does so—unless section 2517 authorizes the disclosure. See Title III
Electronic Surveillance Material and the Intelligence Community, 24 Op.

21
 39 Op. O.L.C. 12 (2015)

O.L.C. 261, 270–71 n.12, 272 (2000) (“Title III Intelligence Communi-
ty”); 18 U.S.C. § 2520(a), (f ), (g) (authorizing civil damages and adminis-
trative discipline for willful disclosures); id. § 2511(1)(e), (4)(a) (author-
izing criminal penalties for certain intentional disclosures). One provision
in section 2517, section 2517(1), is particularly relevant here. It provides
that
[a]ny investigative or law enforcement officer who, by any means
authorized by this chapter, has obtained knowledge of the contents
of any wire, oral, or electronic communication, or evidence derived
therefrom, may disclose such contents to another investigative or law
enforcement officer to the extent that such disclosure is appropriate
to the proper performance of the official duties of the officer making
or receiving the disclosure.
18 U.S.C. § 2517(1). This provision thus permits disclosure of the con-
tents of a lawfully intercepted communication if the disclosure is made
(1) by an “investigative or law enforcement officer,” (2) “to another
investigative or law enforcement officer,” (3) “to [an] extent . . . appro-
priate to the proper performance of the official duties of the officer
making or receiving the disclosure.” A separate provision in Title III,
section 2510(7), defines an “[i]nvestigative or law enforcement officer”
as “any officer of the United States or of a State or political subdivision
thereof, who is empowered by law to conduct investigations of or to
make arrests for offenses enumerated in this chapter, and any attorney
authorized by law to prosecute or participate in the prosecution of such
offenses.” Id. § 2510(7).
OIG contends that section 2517(1) authorizes Department investigative
and law enforcement officers to disclose the contents of lawfully inter-
cepted communications to OIG whenever OIG deems such information
pertinent to any of its investigations. It observes that, in a prior opinion,
this Office “determined that OIG agents . . . qualify as ‘investigative
officers’ authorized to disclose or receive Title III information.” OIG
2014 Memorandum at 11 (citing Whether Agents of the Department of
Justice Office of Inspector General are “Investigative or Law Enforce-
ment Officers” Within the Meaning of 18 U.S.C. § 2510(7), 14 Op. O.L.C.
107, 109–10 (1990) (“Investigative Officers”)). And OIG contends that
disclosures to assist in its audits, investigations, and reviews are invaria-

22
 Access of DOJ IG to Certain Information Protected from Disclosure by Statute

bly “appropriate to the proper performance of the official duties of the
officer making or receiving the disclosure” for two different (and in its
view independently sufficient) reasons. First, it argues that under an
ordinary understanding of the term “official duties,” disclosing Title III
materials to OIG will always be appropriate to both the official duties of
the Department officials disclosing the materials (because those officials
have a duty to cooperate with OIG’s audits, investigations, and reviews)
and the official duties of the OIG agents receiving the materials (because
the IG Act gives them a duty to investigate the Department). Second, OIG
argues that even if “official duties” are limited to duties related to law
enforcement—as this Office concluded in a 2000 opinion—all of OIG’s
audits, investigations, and reviews still qualify for disclosure, because
they involve either investigations of alleged criminal wrongdoing by
Department employees, investigations of alleged administrative miscon-
duct that might lead to discovery of criminal violations, or reviews of the
Department’s criminal law enforcement programs for purposes of “super-
vision or oversight.” OIG Title III Memorandum at 2; see OIG 2014
Memorandum at 10–12; cf. OIG Supplemental Memorandum at 35–38.
We address these arguments in the two sections that follow. In the first
section, we conclude that OIG is correct that OIG agents qualify as “in-
vestigative officers” who may receive Title III information, but—con-
sistent with the conclusion in our 2000 opinion—disagree with OIG’s
broad argument that Title III permits disclosure in connection with duties
unrelated to law enforcement. In the second section, we substantially
agree with OIG’s narrower argument—namely, that disclosures to OIG
agents will frequently assist the official law-enforcement-related duties of
either the officer making or the officer receiving the disclosure. In par-
ticular, we conclude that Title III permits disclosure in connection with
OIG reviews that concern, or are designed to develop recommendations
about, the conduct of the Department’s criminal law enforcement pro-
grams, policies, or practices. As we explain, many—but not all—OIG
investigations and reviews are likely to qualify for disclosure under this
standard.

1.

OIG’s first argument is that section 2517(1) invariably permits De-
partment officials to disclose Title III information to OIG agents. See OIG

23
 39 Op. O.L.C. 12 (2015)

2014 Memorandum at 10–12. We agree that disclosures between Depart-
ment officials and OIG agents generally comply with the statute’s first
two requirements: Numerous officers of the Department are “investigative
or law enforcement officer[s]” entitled to disclose Title III information
under section 2517(1), and OIG agents are “investigative or law enforce-
ment officer[s]” entitled to receive such information. But, as we explain
below, a prior opinion of this Office concluded that the statutory phrase
“official duties” refers only to official duties related to law enforcement.
That conclusion applies here, and means that disclosing information to
OIG is not in itself, and without some further link to law enforcement,
“appropriate to the proper performance of [an] official dut[y]” within the
meaning of section 2517(1).
The first requirement for a disclosure under section 2517(1) is that it be
made by an “investigative or law enforcement officer,” defined as an
officer of the United States (or a state or locality) empowered to “conduct
investigations of,” “make arrests for,” or, if the officer is an attorney,
“prosecute or participate in the prosecution of ” offenses enumerated in
section 2516. 18 U.S.C. § 2510(7). Numerous officials in the Department
qualify as “investigative or law enforcement officer[s]” who may disclose
intercepted communications under this provision. The officers who typi-
cally possess Title III information, such as FBI agents, qualify as investi-
gative or law enforcement officers by virtue of their authority to “investi-
gat[e]” and “make arrests for” crimes enumerated in section 2516. Id.;
see, e.g., 28 C.F.R. § 0.85 (enumerating investigatory functions of the
FBI). And prosecutors, such as Assistant United States Attorneys, qualify
because they are federal officers “authorized by law to prosecute or par-
ticipate in the prosecution of ” enumerated offenses. 18 U.S.C. § 2510(7);
see, e.g., 28 U.S.C. §§ 542, 547 (authorizing United States Attorneys and
their assistants to prosecute federal offenses). Officers of the Department
with leadership or supervisory responsibilities, such as the Attorney
General and Deputy Attorney General, also qualify as investigative or law
enforcement officers. They too are executive officers generally vested
with authority to investigate, make arrests for, and prosecute offenses
enumerated in section 2516. See, e.g., 28 U.S.C. §§ 509, 515; 28 C.F.R.
§ 0.15(a). In addition, as we explain below, these officers participate in
investigations, arrests, and prosecutions through their direction and super-

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 Access of DOJ IG to Certain Information Protected from Disclosure by Statute

vision of those actions on an individual or programmatic basis. See infra
pp. 29–30.
Section 2517(1)’s second requirement is that the person receiving a
disclosure of Title III material also be an investigative or law enforce-
ment officer. As OIG observes, this Office has already concluded, in a
1990 opinion, that OIG agents “qualify as ‘investigative officer[s]’ under
section 2510(7).” Investigative Officers, 14 Op. O.L.C. at 109 (alteration
in original). OIG agents, as officers in the Executive Branch, are “of-
ficer[s] of the United States.” 18 U.S.C. § 2510(7). Further, as we ex-
plained in our 1990 opinion, the IG Act “entrusts [OIG] with investiga-
tive, auditing, and other responsibilities relevant to the detection and
prosecution of fraud and abuse within [Department] programs or opera-
tions.” 14 Op. O.L.C. at 109–10. When OIG agents, exercising those
responsibilities, “discover evidence that . . . Department personnel, con-
tractors, or grantees are engaging in [offenses enumerated in section
2516]”—such as “bribery of public officials and witnesses,” “influencing
or injuring an officer, juror, or witness,” or “obstruction of criminal
investigations”—they have the authority to investigate those crimes. Id.
at 110. Indeed, the portion of the IG Act that created OIG specifically
authorizes it to “investigate allegations of criminal wrongdoing” by De-
partment employees. 5 U.S.C. app. § 8E(b)(2), (4); see also id. § 8E(d);
28 C.F.R. §§ 0.29a(b)(2), 0.29c(a). Furthermore, upon learning of “‘rea-
sonable grounds to believe there has been a violation of Federal criminal
law,’” inspectors general are required to “‘report [such violations] expe-
ditiously to the Attorney General,’” Investigative Officers, 14 Op. O.L.C.
at 109 (quoting 5 U.S.C. app. § 4(d)), presumably so that the Attorney
General can consider the matter for prosecution. OIG’s investigative
jurisdiction thus “carries with it the power to investigate offenses enu-
merated in section 2516,” and as a result, OIG agents—“including spe-
cial agents, auditors and investigators”—are “investigative officers”
entitled to receive disclosures of Title III information under section
2517(1). Id. at 110. 7

7 Some OIG agents may also qualify as “investigative or law enforcement officer[s]”
because they are authorized by the Attorney General, pursuant to specific provisions in
the IG Act, to make warrantless arrests and execute arrest warrants. See 5 U.S.C. app.
§ 6(e); 28 C.F.R. § 0.29j(d)–(e).

25
 39 Op. O.L.C. 12 (2015)

The conclusion that both Department officials who maintain Title III
information and OIG agents who seek it are “investigative or law en-
forcement officer[s]” under section 2517(1), however, does not mean that
those officers may share Title III information with each other in all cir-
cumstances. Section 2517(1)’s third requirement is that any disclosure of
Title III information between qualifying officers must be “appropriate to
the proper performance of the official duties of the officer making or
receiving the disclosure.” 18 U.S.C. § 2517(1). In our 2000 Title III
Intelligence Community opinion, this Office concluded that the phrase
“official duties,” despite its apparent breadth, includes only the “law
enforcement duties” of the relevant officer—that is, those “duties related
to the prevention, investigation, or prosecution of criminal conduct.” 24
Op. O.L.C. at 264 n.7, 265. We reasoned that if “official duties” were
read to “permit disclosure . . . for purposes unrelated to law enforcement,”
section 2517(1) “would constitute only a highly elastic limitation on
disclosure among law enforcement officers”—allowing, for instance, an
attorney with both civil and criminal duties to receive wiretap information
for use in civil litigation. Id. at 265. We found this result “unlikely in light
of Congress’s effort in Title III to protect privacy to the maximum extent
possible, consistent with permitting electronic surveillance for law en-
forcement purposes.” Id.; see id. at 267–69 (discussing the statute’s pur-
pose). We also noted that Title III’s legislative history demonstrated that
“Congress sought in § 2517 to serve ‘criminal law investigation and
enforcement objectives,’” id. at 265 (quoting Am. Friends Serv. Comm. v.
Webster, 720 F.2d 29, 73 (D.C. Cir. 1983)), and observed, based on a
survey of judicial decisions applying section 2517, that “the uses of Title
III information permitted by courts have all related to law enforcement,”
id. at 266. We therefore concluded that “the phrase ‘appropriate to the
proper performance of . . . official duties’” in section 2517 “authorizes
disclosure of Title III material only for purposes related to law enforce-
ment.” Id. at 265, 267.
OIG argues that this conclusion does not apply to disclosures made to
OIG in connection with its investigations. It points out that our Title III
Intelligence Community opinion concerned disclosures of Title III infor-
mation to members of the intelligence community, who we concluded
were not “investigative or law enforcement officer[s]” within the meaning
of sections 2510(7) and 2517. See OIG 2014 Memorandum at 11. As a

26
 Access of DOJ IG to Certain Information Protected from Disclosure by Statute

result, our conclusion there—that Title III information could be disclosed
to members of the intelligence community in certain circumstances—was
based not on section 2517(1), but on section 2517(2), a different excep-
tion that permits investigative or law enforcement officers to “use” Title
III information, including by disclosing it, “to the extent such use is
appropriate to the proper performance of [the] official duties” of the dis-
closing officer. 18 U.S.C. § 2517(2). As OIG observes, its agents are
investigative or law enforcement officers, and thus, unlike members of the
intelligence community, may in principle receive disclosures on the basis
of their own “official duties” under section 2517(1), rather than the duties
of the disclosing officer. OIG argues that, as a result, the conclusions in
Title III Intelligence Community should not control the scope of the dis-
closures it may receive. See OIG 2014 Memorandum at 11.
We disagree. Both sections 2517(1) and 2517(2) use the phrase “offi-
cial duties,” and as we explained in Title III Intelligence Community,
“under basic canons of statutory construction,” these “identical phrase[s]
. . . must be interpreted consistently” each time they appear in the same
statute. 24 Op. O.L.C. at 265 (citing Sullivan v. Stroop, 496 U.S. 478,
484–85 (1990); United Sav. Ass’n v. Timbers of Inwood Forest Assocs.,
484 U.S. 365, 371 (1988)). Indeed, the Title III Intelligence Community
opinion expressly analyzed section 2517(1) to determine how best to
interpret “official duties” for purposes of section 2517(2), and concluded,
in the discussion summarized above, that the phrase was best read in both
sections as limited to a relevant official’s law enforcement duties. See id.
Nor is there any basis for understanding the “official duties” of a receiv-
ing officer in section 2517(1) to have a broader scope than those of a
disclosing officer in the same section, since the same phrase applies
equally to both kinds of officers. See 18 U.S.C. § 2517(1) (requiring that
disclosure assist “the official duties of the officer making or receiving the
disclosure” (emphasis added)). The interpretation of “official duties” in
Title III Intelligence Community thus extends to section 2517(1), and
applies to the duties of both receiving and disclosing officers.
For this reason, we disagree with OIG’s contention that “providing
documents to . . . OIG in the context of [any] duly authorized review
would typically be ‘appropriate to the proper performance of the official
duties of the official making . . . the disclosure’” solely because of “that
official’s duty to cooperate fully with . . . OIG’s investigations and re-

27
 39 Op. O.L.C. 12 (2015)

views.” OIG 2014 Memorandum at 11. The duty to cooperate with OIG’s
investigations is certainly an “official dut[y]” in the broadest sense of that
term. But that duty does not invariably “relate to law enforcement.” Title
III Intelligence Community, 24 Op. O.L.C. at 270. Indeed, we explained in
Title III Intelligence Community that neither an officer’s “general duty to
share [information] with another government entity,” nor the duty to
respond to a “proper request or demand by a congressional committee,”
automatically constitutes an “official dut[y]” within the meaning of sec-
tion 2517(1). Id. at 264, 271. Similarly, OIG’s duty (as the potential re-
ceiving officer) to audit, investigate, and review the Department’s activi-
ties does not automatically justify Title III disclosure, because it too may
not always relate to law enforcement. As a result, we do not believe
Department investigative or law enforcement officers can disclose Title
III information to OIG without regard to whether the disclosure would be
appropriate to the proper performance of an official duty related to law
enforcement.

2.

OIG’s second argument is that even if (as we have concluded) “official
duties” are limited to duties related to law enforcement, OIG’s audits,
investigations, and reviews still qualify for disclosure, because they in-
volve investigations of alleged criminal wrongdoing or administrative
(and potentially criminal) misconduct by Department employees, or re-
views of the Department’s criminal law enforcement programs for pur-
poses of “supervision and oversight.” OIG Title III Memorandum at 2.
For the reasons set forth below, we agree that many—but not all—of
OIG’s investigations and reviews are sufficiently related to law enforce-
ment to support disclosure based on either the official duties of the officer
making the disclosure, or the official duties of the officer receiving it.
We begin with those disclosures appropriate to the official duties of the
officer “making . . . the disclosure.” 18 U.S.C. § 2517(1). As explained
above, numerous officers within the Department qualify as “investigative
or law enforcement officer[s]” under section 2510(7). Their “official
duties” related to law enforcement—and, thus, the functions in connection
with which they may disclose Title III information—vary according to
their roles. Line-level officials, such as FBI agents and Assistant U.S.
Attorneys, perform duties related to law enforcement through on-the-

28
 Access of DOJ IG to Certain Information Protected from Disclosure by Statute

ground activities, such as investigating, making arrests for, and prosecut-
ing crimes. See id. § 2510(7). Higher-ranking Department officials per-
form duties related to law enforcement when they direct and supervise
those activities, such as by approving search warrant and wiretap applica-
tions, managing criminal investigations, and setting trial strategy—all
functions that are integral parts of the prevention, investigation, and
prosecution of criminal offenses. See, e.g., United States v. Sells Eng’g,
Inc., 463 U.S. 418, 429 n.11 (1983) (recognizing that a prosecutor “con-
duct[s] criminal matters” in his role as a “supervisor” as well as by
appearing before a grand jury); 18 U.S.C. § 2510(7) (stating that any
attorney who is authorized to “participate in the prosecution” of an enu-
merated offense is an investigative or law enforcement officer). These
officials may therefore disclose Title III information to OIG agents to the
extent that doing so would be appropriate to the proper performance of
these various functions, including “for the purpose of obtaining assis-
tance” in carrying them out. Title III Intelligence Community, 24 Op.
O.L.C. at 269; see id. at 261. 8
In addition, in our view, members of Department leadership perform
official duties related to law enforcement when they supervise law en-
forcement activities on a programmatic or policy basis—for example,
when they issue guidelines for the exercise of prosecutorial discretion, or
set rules governing the conduct of line-level officers. See, e.g., Memoran-
dum for Heads of Department of Justice Components and United States
Attorneys from the Attorney General, Re: Federal Prosecution Priorities
(Aug. 12, 2013) (listing factors that prosecutors should consider in setting
prosecution priorities); FBI, Domestic Investigations and Operations
Guide (Oct. 15, 2011) (establishing policies for the conduct of the FBI’s
domestic investigations). Although these programmatic and policy deci-
sions are somewhat removed from on-the-ground law enforcement activi-
ties, they frequently affect these activities just as directly as supervisory
decisions made on a case-by-case basis: A Department policy prohibiting
a particular law enforcement tactic or mandating certain charging deci-

8 For example, if OIG investigated a Department employee for alleged criminal mis-
conduct and then referred the matter for prosecution, the prosecutor might subsequently
seek to consult with OIG about its investigation in the course of preparing or conducting
the prosecution. During that consultation, the prosecutor could disclose Title III infor-
mation to OIG if doing so would help the prosecutor prepare or conduct the prosecution.

29
 39 Op. O.L.C. 12 (2015)

sions, for instance, can affect the conduct of a large number of investiga-
tions and prosecutions all at once. See Van de Kamp v. Goldstein, 555
U.S. 335, 346 (2009) (stating that “supervisory prosecutors” are entitled
to the same degree of prosecutorial immunity when formulating “general
methods of supervision and training” as when taking “actions related to an
individual trial,” because both activities are “directly connected with the
prosecutor’s basic trial advocacy duties”). Such broad-based supervision
thus “relate[s] to law enforcement” in the ordinary sense of that phrase.
Cf. Disclosure of Grand Jury Material to the Intelligence Community,
21 Op. O.L.C. 159, 171 (1997) (“Rule 6(e) Intelligence Community”)
(stating that the Attorney General’s “duty to enforce federal criminal law”
within the meaning of Federal Rule of Criminal Procedure 6(e)(3)(A)(ii)
includes the supervision of “a broad criminal law enforcement program”).
Moreover, given the size of the Department, such programmatic and
policy supervision is a primary means by which the Attorney General and
other Department leadership officials evaluate and direct the Depart-
ment’s law enforcement activities, including its use of Title III authorities.
If that supervision did not constitute an “official dut[y]” within the mean-
ing of section 2517(1), then leadership officials would be unable to pro-
grammatically review the contents of wiretaps in order to ensure that
officers were exercising their Title III authorities responsibly and lawful-
ly, or to conduct general management and supervision of Department law
enforcement activities that made use of Title III materials. We think it
unlikely that Congress intended to handicap leadership officials in this
way. Indeed, interpreting Title III to impair programmatic or policy su-
pervision of the use of Title III authorities and materials would undermine
Congress’s goal of “protect[ing] privacy to the maximum extent possible,
consistent with permitting electronic surveillance for law enforcement
purposes.” Title III Intelligence Community, 24 Op. O.L.C. at 265; cf.
United States v. Giordano, 469 F.2d 522, 527 (4th Cir. 1972) (noting that
“[b]ecause of the delicate nature of the power to initiate surveillance
applications,” Congress took care to ensure that “the implementation” of
this authority “was reserved to” high-level leadership officials within the
Department). These considerations reinforce our conclusion that supervis-
ing law enforcement activities on a programmatic or policy basis qualifies
as an “official dut[y]” related to law enforcement within the meaning of
section 2517(1).

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 Access of DOJ IG to Certain Information Protected from Disclosure by Statute

A Department leadership official may therefore disclose Title III mate-
rials to OIG agents when doing so would be appropriate to the perfor-
mance of that official’s duty to supervise law enforcement activities on a
programmatic or policy basis. And, while we will not attempt to specify in
the abstract all situations in which such disclosures would be appropriate,
we think that, in general, a wide range of OIG investigations and reviews
would likely assist Department leadership officials in conducting such
programmatic and policy supervision. One of the central purposes of
OIG’s reviews and investigations is to assist Department leadership in
supervising the Department: As noted above, Congress enacted the IG Act
in part to “provide a means for keeping the head of [each] [agency] . . .
fully and currently informed about problems and deficiencies relating to
the administration of [the agency’s] programs and operations and the
necessity for and progress of corrective action,” 5 U.S.C. app. § 2(3), and
it assigned OIG the statutory duty of providing reports and recommenda-
tions about such issues to Department leadership, see id. § 4(a)(5). More-
over, consistent with Congress’s purpose, “OIG’s reports of its investiga-
tions and reviews have historically provided the Attorney General and
Deputy Attorney General with critical advice, information, and insights in
connection with the exercise of their supervisory responsibilities over the
Department’s programs and operations.” Letter for Michael E. Horowitz,
Inspector General, from Sally Quillian Yates, Acting Deputy Attorney
General, at 2 (Apr. 23, 2015) (“Yates Letter”). We therefore believe that it
would generally be “appropriate to the proper performance of the official
duties” of a member of the Department’s leadership to disclose Title III
information to OIG agents in connection with investigations or reviews of
law enforcement programs and operations that could inform supervisory
decisions made by Department leadership about such programs and opera-
tions; that is, investigations or reviews that concern, or are designed to
develop recommendations about, the manner in which the Department
prevents, investigates, or prosecutes crimes. 9

9 For example, the initial request for this opinion was prompted by three recent OIG

reviews: a review of Operation Fast and Furious (an investigation of firearms trafficking,
conducted by the Department’s Bureau of Alcohol, Tobacco, Firearms, and Explosives,
that employed a controversial investigative technique); a review of the FBI’s alleged
misuse of the material witness statute, 18 U.S.C. § 3144, to detain persons suspected of
criminal conduct rather than potential witnesses; and a review of the FBI’s use of Nation-

31
 39 Op. O.L.C. 12 (2015)

We now turn to disclosures that would be appropriate to the proper per-
formance of the official duties of the officer “receiving the disclosure”—
in this case, OIG agents. As noted above, this Office has previously
concluded that OIG agents qualify as “investigative officer[s]” under
section 2510(7) by virtue of their authority to investigate allegations of
criminal wrongdoing—including offenses enumerated in section 2516—
by Department employees, contractors, and grantees. Investigative Offic-
ers, 14 Op. O.L.C. at 109 (alteration in original). Because investigations
of alleged criminal wrongdoing are plainly “official duties” related to law
enforcement, section 2517(1) authorizes Department investigative and law
enforcement officers to disclose Title III information to OIG agents as
“appropriate to the proper performance” of OIG’s investigations of al-
leged criminal wrongdoing by Department employees, contractors, or
grantees, including administrative misconduct investigations that have a
reasonable prospect of identifying criminal wrongdoing.
We further believe that OIG officials perform “official duties” related
to law enforcement within the meaning of section 2517(1) when they
conduct investigations and reviews that could help Department leadership
officials make supervisory decisions regarding the Department’s law
enforcement programs, policies, and practices. As we have already noted,
Congress placed OIG within the Department of Justice, the nation’s
principal law enforcement agency, see 5 U.S.C. app. §§ 2(A), 12(2); 28
U.S.C. § 501 et seq., and assigned it the “duty and responsibility” of
reviewing the Department’s programs and operations, including its pro-
grams and operations related to law enforcement, in order to help the
Attorney General and her assistants better manage those programs and
operations, 5 U.S.C. app. § 4(a). OIG agents thus have responsibilities
that are closely related to Department leadership’s duty to supervise and
manage the Department’s law enforcement functions on a programmatic
and policy basis, and are therefore sufficiently related to law enforcement
to constitute “official duties” under section 2517(1).

al Security and Exigent Letters. All three of these investigations concerned operational
questions related to the Department’s prevention, investigation, or prosecution of criminal
conduct, and all promised to directly inform Department leadership’s supervision of these
activities. Department leadership could therefore properly disclose Title III information to
OIG in connection with all three investigations under section 2517(1).

32
 Access of DOJ IG to Certain Information Protected from Disclosure by Statute

We recognize that, in at least two respects, OIG reviews of Depart-
ment law enforcement operations have a more attenuated relationship to
the actual conduct of those operations than policy and programmatic
supervision conducted by Department leadership; but we do not think
that either of these distinctions prevents the conduct of such reviews
from constituting an “official dut[y]” under section 2517(1). First, OIG
provides information and recommendations that may inform supervisory
decisions made by Department leadership, but it does not—and cannot—
actually make operational decisions concerning the Department’s law
enforcement activities. See Authority to Conduct Regulatory Investiga-
tions, 13 Op. O.L.C. at 62 (concluding that inspectors general may not
conduct “investigations constituting an integral part of the programs
involved”); 5 U.S.C. app. § 9(a) (prohibiting the Attorney General from
transferring to OIG “program operating responsibilities”). Neither the
statutory phrase “official duties,” however, nor our prior conclusion that
this phrase encompasses duties that “relate to law enforcement,” Title III
Intelligence Community, 24 Op. O.L.C. at 271, requires that such duties
involve operational law enforcement responsibilities. Indeed, such a
requirement would exclude activities that are essential to the effective
conduct of core law enforcement functions. It is difficult to imagine how
most law enforcement duties, including the duty to set relevant policy
and conduct programmatic supervision, could be carried out responsibly
without the benefit of the fact-finding and evaluative work necessary to
inform them. And it would make little sense to conclude that, for exam-
ple, the Attorney General and her assistants are not engaged in “official
duties” related to law enforcement, and thus cannot obtain relevant Title
III information, when they conduct a review of a law enforcement pro-
gram that relies on such information, but that the Attorney General is
engaged in a law enforcement duty, and thus may obtain such access,
when she ultimately issues direction or guidance about that program. We
therefore think that the duty to review and investigate law enforcement
programs, like the duty to supervise those programs on a programmatic
or policy level, qualifies as an “official dut[y]” related to law enforce-
ment under section 2517(1).
Second, in providing its recommendations and analysis to the Attorney
General, OIG is insulated to some degree from the Attorney General’s
direction and supervision. See 5 U.S.C. app. § 3(a) (providing that the

33
 39 Op. O.L.C. 12 (2015)

Attorney General may not “prevent or prohibit the Inspector General from
initiating, carrying out, or completing any audit or investigation”); id.
§ 8E(a) (qualifying this limitation with respect to “audits or investigations
. . . which require access to [certain] sensitive information”). Moreover,
unlike other Department components or officials that conduct fact-finding
investigations or make recommendations to Department leadership, OIG
exercises authority conferred directly by Congress in the IG Act, rather
than authority shared with or delegated by the Attorney General. Compare
id. §§ 4(a), 6(a) (granting various authorities to inspectors general), with
28 U.S.C. § 509 (vesting in the Attorney General, with certain minor
exceptions, “[a]ll functions of other officers of the [Department] and all
functions of agencies and employees of the [Department]”), and id. § 510
(authorizing the Attorney General to “authoriz[e] the performance by any
other officer, employee, or agency of the [Department] of any function of
the Attorney General”). OIG thus falls in important respects outside the
Department’s chain of command when it conducts investigations and
develops recommendations.
But OIG’s relative independence from the Department’s leadership
does not in our view undermine the value of its reviews or advice, or
mean that its “official dut[y]” to undertake such reviews and provide
such advice is unrelated to the ultimate supervisory law enforcement
decisions made by Department leadership. To the contrary, Congress
created OIG precisely because it believed that establishing an independ-
ent and objective entity to evaluate the Department’s programs and
operations would enhance the quality of such evaluations. See H.R.
Rep. No. 100-771, at 8–9 (1988) (explaining that a lack of independence
impaired the effectiveness of the Department’s internal audit and investi-
gation components). We are reluctant to conclude that the relative inde-
pendence that Congress determined would improve the value of OIG’s
reviews at the same time renders them insufficiently “related to law
enforcement” to support disclosure of the Title III information OIG needs
to perform such reviews effectively.
Consequently, we believe that OIG investigations and reviews that con-
cern, or are designed to develop recommendations about, the manner in
which the Department prevents, investigates, or prosecutes crimes “serve
criminal law investigation and enforcement objectives” and “relate to law
enforcement,” as our Title III Intelligence Community opinion requires.

34
 Access of DOJ IG to Certain Information Protected from Disclosure by Statute

24 Op. O.L.C. at 265, 271 (internal quotation marks omitted). As a result,
we think that OIG agents can obtain Title III information directly from
Department investigative and law enforcement officers, for use in such
investigations and reviews, based on the OIG agents’ own “official du-
ties” to conduct such reviews for the benefit of Department leadership—
and not simply from Department leadership based on the leadership
officials’ duty to supervise Department operations.
Finally, although we have concluded that the “official duties” of De-
partment leadership officials and OIG agents for Title III purposes en-
compass many of their responsibilities, it does not follow that disclosing
Title III materials in connection with an OIG audit, investigation, or
review is “appropriate to the proper performance of the official duties” of
Department leadership or OIG agents in every instance. Cf. OIG 2014
Memorandum at 11. In particular, reviews that are either unrelated to, or
have only an attenuated connection with, the conduct of the Department’s
law enforcement programs and operations do not, in our view, constitute
(or promise to assist with) “official duties” related to law enforcement.
For example, it is unlikely that an OIG review of one of the Department’s
non-law enforcement activities, such as civil litigation, would be suffi-
ciently related to the Department’s law enforcement programs and opera-
tions to justify disclosure under section 2517(1), unless that review were
aimed at uncovering criminal misconduct. Similarly, we doubt that a
routine financial audit of a Department component, or a review of a com-
ponent’s record-keeping practices, would justify disclosure of Title III
information under section 2517(1) merely because that component en-
gaged in law enforcement activities. Although sound finances and good
record-keeping may enable a law enforcement component to conduct its
functions more effectively, such an audit or investigation would not be
aimed at evaluating the conduct of law enforcement activities themselves,
or uncovering criminal conduct by Department employees. Construing
section 2517(1) to permit disclosure of Title III information in connection
with reviews that are so tangentially related to law enforcement activities
would reduce that provision to the kind of “highly elastic limitation on
disclosure” among law enforcement and investigative officers that Con-
gress did not intend. Title III Intelligence Community, 24 Op. O.L.C. at
265; cf. Rural Housing Alliance v. U.S. Dep’t of Agric., 498 F.2d 73, 81
(D.C. Cir. 1974) (rejecting a construction of the exemption for “investiga-

35
 39 Op. O.L.C. 12 (2015)

tory files compiled for enforcement purposes” in the Freedom of Infor-
mation Act under which that exemption would encompass records from a
compliance audit that might result in administrative or criminal sanctions,
because that construction would cause the exemption to “swallow[] up the
Act”).
In sum, we conclude that section 2517(1) permits Department investi-
gative or law enforcement officers to disclose Title III information to OIG
agents in connection with many, but not all, OIG investigations and
reviews. Line-level Department officers may disclose Title III information
to OIG agents to assist the disclosing officers in preventing, investigating,
or prosecuting criminal conduct. Any Department officer may disclose
Title III information to OIG agents to assist OIG in its investigations of
criminal misconduct by Department employees, contractors, or grantees,
including administrative misconduct investigations that have a reasonable
prospect of uncovering criminal violations. And because Department
leadership officials have a duty to conduct policy and programmatic
supervision of the Department’s law enforcement activities—and because
OIG has a duty to conduct investigations and reviews that could assist
Department leadership in carrying out that supervision—any Department
officer may disclose Title III information to assist OIG in performing such
investigations and reviews where they concern, or are designed to develop
recommendations about, the manner in which the Department prevents,
investigates, or prosecutes crimes. Section 2517(1) does not, however,
permit OIG agents to obtain Title III information in connection with
reviews that are either unrelated to, or have only an attenuated relation-
ship with, the conduct of the Department’s law enforcement activities.

B.

We now turn to OIG’s eligibility to obtain grand jury materials. Feder-
al Rule of Criminal Procedure 6(e) “codifies the traditional rule of grand
jury secrecy,” which is designed to ensure “the proper functioning of our
grand jury system” by encouraging prospective witnesses to “come
forward” and “testify fully and frankly,” lessening the “risk that those
about to be indicted w[ill] flee, or w[ill] try to influence individual grand
jurors to vote against indictment,” and protecting the innocent from
“be[ing] held up to public ridicule.” Sells, 463 U.S. at 424–25 (quoting
Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 218–19 (1979)). In

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 Access of DOJ IG to Certain Information Protected from Disclosure by Statute

order to achieve these objectives, Rule 6(e) prohibits several specified
classes of individuals, including “attorney[s] for the government,” from
disclosing “a matter occurring before the grand jury.” Fed. R. Crim. P.
6(e)(2)(B). This rule of secrecy, however, is not absolute: A court may
authorize the disclosure of grand jury materials in certain circumstances,
Fed. R. Crim. P. 6(e)(3)(E), and an attorney for the government may
disclose information without court authorization pursuant to several
exceptions enumerated in paragraph (3) of Rule 6(e).
OIG contends that these exceptions authorize its attorneys to receive
grand jury materials that are relevant to OIG investigations. Principally,
OIG argues that Department attorneys may disclose grand jury infor-
mation to OIG under the exception set forth in Rule 6(e)(3)(A)(i) (“excep-
tion (A)(i)”), which permits the disclosure of grand jury information to
“an attorney for the government for use in performing that attorney’s
duty.” See OIG 2015 E-mail; OIG 2014 Memorandum at 9–10; OIG
Supplemental Memorandum at 19–26. In addition, although OIG does not
rely on the provision, we have considered whether OIG attorneys may
obtain grand jury information under the exception set forth in Rule
6(e)(3)(A)(ii) (“exception (A)(ii)”), which authorizes disclosures to “any
government personnel . . . that an attorney for the government considers
necessary to assist in performing that attorney’s duty to enforce federal
criminal law.” For the reasons set forth below, we conclude that exception
(A)(i) does not authorize Department attorneys to disclose grand jury
materials to OIG attorneys, but that exception (A)(ii) authorizes disclo-
sures to OIG officials in a wide range of circumstances, including in
connection with OIG reviews that a member of Department leadership
concludes could assist her in supervising the Department’s criminal law
enforcement programs and operations. 10

10 OIG also argues that it is entitled to disclosure of some grand jury materials un-

der subsection 6(e)(3)(D) (“exception (D)”), which authorizes an attorney for the
government to disclose grand jury material “involving foreign intelligence, counterin-
telligence . . . , or foreign intelligence information” to a range of officials, including
“federal law enforcement . . . official[s],” in order to “assist the official receiving the
information in the performance of that official’s duties.” See OIG Supplemental
Memorandum at 26–45. We believe the applicability of exception (D) to OIG presents
a difficult question. In light of our conclusion that exception (A)(ii) permits the
Department leadership to provide OIG with access to grand jury material in a wide
range of circumstances, see infra Part II.B.2, we decline to address the scope of ex-

37
 39 Op. O.L.C. 12 (2015)

1.

We begin with exception (A)(i). It provides: “Disclosure of a grand-
jury matter—other than the grand jury’s deliberations or any grand juror’s
vote—may be made to . . . an attorney for the government for use in
performing that attorney’s duty.” Fed. R. Crim. P. 6(e)(3)(A). A person
may make a disclosure under this provision without obtaining authoriza-
tion from the court that impaneled the grand jury or notifying the court of
the disclosure. Cf. Fed. R. Crim. P. 6(e)(3)(B), (E).
OIG argues that exception (A)(i) authorizes Department attorneys to
disclose grand jury information to OIG attorneys for use in conducting
any OIG audit, investigation, or review. OIG observes that, in a prior
memorandum, this Office concluded that attorneys from the Department’s
Office of Professional Responsibility (“OPR”) could obtain grand jury
information under exception (A)(i) for use in investigating charges of
misconduct by prosecutors or other Department employees who had
assisted in grand jury investigations. See OIG Supplemental Memoran-
dum at 20–22 (citing Memorandum for Michael Shaheen, Jr., Counsel,
OPR, from Robert B. Shanks, Deputy Assistant Attorney General, Office
of Legal Counsel, Re: Disclosure of Grand Jury Material to the Office of
Professional Responsibility (Jan. 6, 1984) (“OPR Memorandum”)). OIG
contends that because its attorneys, like OPR attorneys, are authorized to
assist the Attorney General in supervising the Department, they qualify as
“attorney[s] for the government” who may receive disclosures under
exception (A)(i). See OIG 2015 E-mail. OIG further argues that its attor-
neys perform a “duty” closely analogous to OPR’s when they investigate
allegations of misconduct by the Department’s law enforcement officers.
OIG claims that as a result, exception (A)(i) likewise permits its attorneys
to receive grand jury information in connection with its investigations.
See OIG Supplemental Memorandum at 22–24.

ception (D) here. Rule 6(e)(3) also includes exceptions to Rule 6(e)’s secrecy require-
ments for (1) certain disclosures relating to banking matters and civil forfeiture au-
thorized by 18 U.S.C. § 3322, see Fed. R. Crim. P. 6(e)(3)(A)(iii); (2) disclosures to
another federal grand jury, see Fed. R. Crim. P. 6(e)(3)(C); and (3) disclosures author-
ized by a court under certain conditions, see Fed. R. Crim. P. 6(e)(3)(E). We likewise
do not address the application of those exceptions in this opinion.

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 Access of DOJ IG to Certain Information Protected from Disclosure by Statute

The starting point for OIG’s argument is United States v. Sells Engi-
neering. In that case, the Supreme Court considered whether exception
(A)(i) authorizes the Department’s Civil Division to obtain grand jury
materials for use in preparing and litigating civil lawsuits. See 463 U.S.
at 420. The Court concluded first that Civil Division attorneys, like “vir-
tually every attorney in the Department of Justice,” were “within the class
of ‘attorneys for the government’ to whom (A)(i) allows disclosure with-
out a court order.” Id. at 426, 427–28. The Federal Rules of Criminal
Procedure, the Court explained, define “attorneys for the government” to
include “‘authorized assistants of the Attorney General’”; and the Attor-
ney General may direct almost “any attorney employed by the Depart-
ment”—including Civil Division attorneys—“to conduct ‘any kind of
legal proceeding, civil or criminal, including grand jury proceedings.’” Id.
at 428 (quoting Fed. R. Crim. P. 54(c) (1983); 28 U.S.C. § 515(a)). 11 It
was therefore “immaterial,” in the Court’s view, that “certain attorneys
happen[ed] to be assigned to a unit called the Civil Division, or that their
usual duties involve[d] only civil cases.” Id. Because such attorneys,
notwithstanding such an assignment, could be detailed or assigned to con-
duct “criminal grand jury investigation[s],” they counted as “attorneys for
the government” under the Rules. Id.
Nonetheless, the Court held that the use of grand jury information for
civil purposes—even by an “attorney for the government” exercising her
official duties—did not constitute “use in the performance of such attor-
ney’s duty” within the meaning of exception (A)(i). 12 In the Court’s view,
Congress did not intend exception (A)(i) to mean “that any Justice De-
partment attorney is free to rummage through the records of any grand
jury in the country, simply by right of office,” id., or to authorize access
to grand jury material to serve “the general and multifarious purposes of
the Department of Justice,” id. at 429. The Court based its conclusion
primarily on the purpose behind exception (A)(i). It explained that Rule
6(e) permits government attorneys to obtain otherwise secret grand jury

11 Rule 54(c) was transferred to Rule 1(b)(1) when the Rules were amended in 2002.
12 The language of this provision has been modified slightly since Sells. Compare Fed.
R. Crim. P. 6(e)(3)(A)(i) (1979) (“an attorney for the government for use in the perfor-
mance of such attorney’s duty”), with Fed. R. Crim. P. 6(e)(3)(A)(i) (2015) (“an attorney
for the government for use in performing that attorney’s duty”). We believe this change is
immaterial for purposes of this opinion.

39
 39 Op. O.L.C. 12 (2015)

materials only “because both the grand jury’s functions and their own
prosecutorial duties require it.” Id.; see id. at 428–29 (quoting Fed. R.
Crim. P. 6(e) advisory committee’s note (1944)). A prosecutor working on
a criminal matter “needs to know what transpires before the grand jury,”
in order to “bring[] matters to the attention of the grand jury,” “advise[]
the lay jury on the applicable law,” and “determine whether it is in the
interests of justice to proceed with prosecution.” Id. at 430. A civil attor-
ney’s “need for access,” in contrast, “is ordinarily nothing more than a
matter of saving [the] time and expense” of civil discovery. Id. at 431. As
a result, “disclosure for civil use [is] unjustified by the considerations
supporting prosecutorial access.” Id. Moreover, the Court continued,
granting attorneys the right to obtain grand jury materials for use in civil
litigation would “threaten[] to do affirmative mischief.” Id. Such a broad
right of access might discourage witnesses from testifying before the
grand jury “for fear that [they] will get [themselves] into trouble in some
other forum,” “tempt[]” prosecutors to “manipulate the grand jury’s
powerful investigative tools . . . to elicit evidence for use in a civil case,”
and “subvert the limitations applied outside the grand jury context on the
Government’s powers of discovery and investigation.” Id. at 432–33.
Significantly, the Court made clear that it did “not mean to suggest that
(A)(i) access to grand jury materials is limited to those prosecutors who
actually did appear before the grand jury.” Id. at 429 n.11. Rather, the
Court noted that “anyone working on a given prosecution would clearly
be eligible under [the Federal Rules] to enter the grand jury room,” even
if such a person did not do so. Id. Accordingly, the Court found that the
intent of the rule was to authorize “every attorney (including a supervisor)
who is working on a prosecution [to] have access to grand jury materials,
at least while he is conducting criminal matters,” in order “to facilitate
effective working of the prosecution team.” Id. (emphasis omitted).
In the wake of the Supreme Court’s decision in Sells, OPR asked this
Office whether its attorneys could continue to obtain access to grand jury
materials under exception (A)(i) when “investigating charges that prose-
cutors or Department employees assisting grand jury investigations ha[d]
engaged in misconduct.” OPR Memorandum at 1. In an unpublished
memorandum that forms the basis for OIG’s argument here, we advised
that OPR attorneys could “probably” do so. Id. at 2. We acknowledged
that “the broad language in Sells, on its face, would appear to prohibit

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automatic disclosure” to OPR attorneys, because they “would usually be
using the materials for civil, not criminal, purposes”—i.e., in connection
with administrative misconduct proceedings—and because “they are not
the ‘attorneys who conduct the criminal matters to which the materials
pertain.’” Id. at 4 (quoting Sells, 463 U.S. at 427). Nonetheless, we ob-
served that two “strong arguments [could] be made” in support of OPR’s
eligibility for disclosure under exception (A)(i). Id.
First, we noted that permitting the automatic disclosure of grand jury
materials to OPR attorneys would not “raise[] the same type of policy
concerns that were relied upon by the Sells Court.” Id. at 6. The Civil
Division attorneys in Sells, we explained, had sought grand jury materials
“for possible use in civil actions against the targets of the grand jury
inquiry,” while OPR attorneys sought those materials “to oversee the
conduct of the government attorneys and investigators assisting the grand
jury.” Id. at 4–5. Thus, unlike in Sells, “only the conduct of government
prosecutors,” and not the conduct of the targets of the grand jury inquiry,
“would be subject to scrutiny.” Id. at 5. As a result, disclosing grand jury
materials to OPR attorneys would neither “hinder[]” the “willingness of
witnesses to testify” nor “create an incentive for criminal attorneys to
abuse the grand jury process in order to pursue civil discovery.” Id.
Second, we believed that disclosures to OPR attorneys would “fall
generally within the supervisor exception” articulated in Sells. Id. at 7.
We noted that the Sells Court had recognized that grand jury materials
could be “disclosed to some persons who may not technically be consid-
ered ‘prosecutors,’ such as Department ‘supervisors’ and members of the
‘prosecution team,’ but who nevertheless are indispensable to an effec-
tive criminal law enforcement effort.” Id. at 6 (citation omitted) (quoting
Sells, 463 U.S. at 429 n.11). We thought this exception “would clearly
cover certain exchanges [of grand jury information]” that were “analo-
gous” to disclosures to OPR. Id. In particular, we thought there was “no
question” that prosecutors could “ask ethics counselors to accompany
them into the grand jury room to give direct counsel when problems
[arose],” or that prosecutors could “disclose grand jury materials to their
superiors,” as well as to “ethics attorneys” advising those supervisors, in
order “to seek their instructions on ethical responsibilities.” Id. at 7. We
therefore thought it probable, although “not free from doubt,” that, by the
same logic, Department attorneys could obtain grand jury materials “to

41
 39 Op. O.L.C. 12 (2015)

evaluate in the course of a separate administrative investigation the
propriety of prior conduct.” Id. We reasoned that, “[t]o perform properly
their oversight role, supervisors not only must be able to review grand
jury materials for purposes of instructing subordinates on future activi-
ties, but also must be able to evaluate that conduct once a course of
action has been set.” Id. “A supervisor’s access to grand jury materials,”
we explained, “should not be terminated artificially once his subordinates
have acted, but should properly include post mortem review of his staff ’s
activities.” Id. at 7–8. We further noted that OPR attorneys are, by regu-
lation, “delegee[s] of the Attorney General for purposes of overseeing
and advising with respect to the ethical conduct of department attorneys.”
Id. at 8 (citing 28 C.F.R. § 0.39a (1983)). Accordingly, we concluded
that it was appropriate for OPR attorneys to review grand jury materials
in order to “make recommendations to the Attorney General or other
supervisors regarding conduct in particular cases.” Id. 13
OIG argues that it is eligible to receive grand jury materials under ex-
ception (A)(i) for much the same reason as OPR attorneys. OIG asserts
that its attorneys qualify as “attorney[s] for the government” because they
are charged with “assisting the [Attorney General] in [her] capacity of
overseeing the operations of the Department.” OIG 2015 E-mail. And OIG
argues that its investigations and reviews are comparable to the work
performed by OPR attorneys, and thus qualify as “dut[ies]” for which OIG
may receive grand jury information, because OIG, like OPR, performs
those investigations to “oversee[] and advis[e] with respect to the ethical
conduct” of Department personnel, and to assist members of the Depart-
ment’s leadership in “evaluat[ing] . . . the propriety of prior conduct” and
improving the Department’s law enforcement policies and programs. OPR
Memorandum at 7–8; see OIG Supplemental Memorandum at 22–24.
We think that OIG is correct that its duties are similar to OPR’s in im-
portant respects; indeed, for the reasons described in Part II.B.2 below, we
believe that OIG personnel may obtain grand jury information under

13 Recognizing, however, that the broad language in Sells could be read to prohibit

automatic disclosure of grand jury materials to OPR attorneys, we suggested “as a pru-
dential matter” that OPR seek a court order sanctioning disclosure under exception (A)(i)
in the first few cases in which it reviewed grand jury materials so that it might “obtain
some clear guidance from the courts on whether the automatic exemption may be em-
ployed.” OPR Memorandum at 9.

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exception (A)(ii) in part because of their responsibility to assist Depart-
ment leadership in supervising the Department’s law enforcement func-
tions. See infra p. 54. But we disagree that OIG attorneys qualify as
“attorney[s] for the government” within the meaning of the Federal Rules.
As we explain below—and as both Sells and numerous courts of appeals
have confirmed—an “attorney for the government” under the Rules must
not merely assist the Attorney General, but must (at a minimum) be capa-
ble of conducting criminal proceedings on behalf of the government.
Because the IG Act prohibits OIG personnel from engaging in such activi-
ties, OIG attorneys cannot qualify for disclosure under exception (A)(i).
The Rules define an “attorney for the government” as:
(A) the Attorney General or an authorized assistant;
(B) a United States attorney or an authorized assistant;
(C) when applicable to cases arising under Guam law, the Guam
Attorney General or other person whom Guam law authorizes to act
in the matter; and
(D) any other attorney authorized by law to conduct proceedings
under these rules as a prosecutor.
Fed. R. Crim. P. 1(b)(1). Most of the categories listed in this definition
clearly consist of attorneys who are authorized to conduct criminal pro-
ceedings on behalf of the government. The Attorney General is authorized
to “conduct any kind of legal proceeding, civil or criminal, including
grand jury proceedings,” 28 U.S.C. § 515(a); United States Attorneys are
charged with “prosecut[ing] . . . all offenses against the United States,” id.
§ 547(1); attorneys for the government acting in Guam criminal cases
must be “authorize[d] to act in th[os]e matter[s]” under Guam law; and
“other attorney[s]” must be “authorized by law to conduct proceedings
under [the Rules] as a prosecutor.” Only the “authorized assistant[s]” to
the Attorney General and United States Attorneys described in subpara-
graphs (A) and (B) are not in plain terms limited to attorneys who are
authorized to represent the government in criminal proceedings. In isola-
tion, the phrase “authorized assistant” might be read to encompass per-
sons who “assist[]” the Attorney General or a United States Attorney in
ways other than by conducting prosecutions (such as by conducting the
kinds of investigations of misconduct or law enforcement programs un-
dertaken by OIG). Read in context, however, we think that the term “au-

43
 39 Op. O.L.C. 12 (2015)

thorized assistant” in subparagraphs (A) and (B) refers, like the other
categories in Rule 1(b)(1), to prosecutors or other attorneys with authority
to conduct criminal proceedings on the government’s behalf. This is so for
at least three reasons.
First, the text of Rule 1(b)(1) supports this reading. The word “author-
ized” in “authorized assistant” must be read in light of the meaning it has
in the other parts of the same provision. As noted, subparagraph (C)
refers to persons “whom Guam law authorizes to act in [a criminal]
matter,” and subparagraph (D) refers to other attorneys “authorized by
law to conduct proceedings under these rules as a prosecutor” (emphases
added). Because “similar language contained within the same section of a
statute must be accorded a consistent meaning,” Nat’l Credit Union
Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 501 (1998), it is
reasonable to presume that Congress used the term “authorized” in a
similar sense in subparagraphs (A) and (B), to refer to official authoriza-
tion to conduct proceedings under the Rules as a prosecutor, or otherwise
to “act” in a criminal proceeding in an official capacity. As noted above,
moreover, the other categories of government attorneys listed in Rule
1(b)(1) are clearly authorized to conduct criminal proceedings. In that
context, the term “authorized assistant” is best read to refer as well to
attorneys who are authorized to conduct criminal proceedings. See Unit-
ed States v. Williams, 553 U.S. 285, 294 (2008) (noting that “a word is
given more precise content by the neighboring words with which it is
associated”). Additionally, the catchall category set forth in subparagraph
(D) refers to “any other attorney authorized by law to conduct proceed-
ings under these rules as a prosecutor” (emphasis added). That formula-
tion reinforces our conclusion that the preceding categories in the Rule
consist of attorneys authorized by law to conduct proceedings under the
rules as a prosecutor. See Paroline v. United States, 134 S. Ct. 1710,
1721 (2014) (“Here, [18 U.S.C.] § 2259(b)(3)(F) defines a broad, final
category of ‘other losses suffered . . . as a proximate result of the of-
fense.’ That category is most naturally understood as a summary of the
type of losses covered—i.e., losses suffered as a proximate result of the
offense.” (ellipsis in original)).
Second, consistent with this reading, Sells and many lower court deci-
sions have held or assumed that an “authorized assistant” to the Attorney
General must be an attorney who is, or at least may be, authorized to

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conduct criminal proceedings on the government’s behalf. As noted, Sells
concluded that Civil Division attorneys qualify as “authorized assistant[s]
of the Attorney General” because the Attorney General may assign them
to “conduct a criminal grand jury investigation” or other criminal matters.
Sells, 463 U.S. at 428 (citing 28 U.S.C. §§ 515(a), 518(b)). The Attorney
General’s authority to reassign attorneys in this way would be pertinent
only if the Court thought that an “authorized assistant” had to be capable
of conducting criminal matters on the government’s behalf. Courts of
appeals have interpreted the phrase even more strictly. The Sixth Circuit,
for instance, has held that “an ‘authorized assistant of the Attorney Gen-
eral’ is one whose superiors have assigned him or her to work in some
official capacity on the criminal proceeding.” United States v. Forman,
71 F.3d 1214, 1220 (6th Cir. 1995) (emphasis omitted). Other courts of
appeals have reached similar conclusions. See Sells, 463 U.S. at 429 n.12
(citing courts of appeals that had “held or assumed that” even a Criminal
Division attorney could qualify as an “‘authorized assistant of the Attor-
ney General’” only if she had actually been “authorized to conduct grand
jury proceedings”); United States v. Fort, 472 F.3d 1106, 1111 (9th Cir.
2007) (“Rule 1(b)(1) defines restrictively the term ‘attorney for the gov-
ernment’ to mean (as relevant here) a federal prosecutor.”); United States
v. Balistrieri, 779 F.2d 1191, 1207 (7th Cir. 1985) (holding that attorneys
employed by the Department’s Criminal Division were “authorized assis-
tants of the Attorney General” and thus “attorneys for the government”
because they “were assigned to assist the United States Attorney for the
Eastern District of Wisconsin in investigating and prosecuting” a criminal
case). There is some apparent tension between the conclusion in Sells that
any attorney who could be authorized to conduct criminal proceedings
qualifies as an “attorney for the government,” see 463 U.S. at 428, and the
conclusions of other courts that an actual authorization is required, see,
e.g., Forman, 71 F.3d at 1220. But we need not attempt to resolve this
tension here, because at a minimum, all courts agree that an attorney who
is incapable of being authorized to conduct criminal proceedings on the
government’s behalf is not an “authorized assistant” for purposes of the
Federal Rules.
Third, numerous provisions of the Federal Rules make clear that an
“attorney for the government,” including an authorized assistant to the
Attorney General, refers to an attorney capable of representing the gov-

45
 39 Op. O.L.C. 12 (2015)

ernment in criminal proceedings—a meaning that makes sense given the
Rules’ purpose of establishing the “procedure” governing “all criminal
proceedings in the United States [courts].” Fed. R. Crim. P. 1(a)(1); see
Robinson v. Shell Oil Co., 519 U.S. 337, 345 (1997) (resolving the mean-
ing of a statutory term by considering “[t]he broader context provided by
other sections of the statute”). More than 50 provisions of the Rules use
the term “attorney for the government,” and all are consistent with this
understanding. For example, Rule 11(c) provides that “[a]n attorney for
the government and the defendant’s attorney, or the defendant when
proceeding pro se, may discuss and reach a plea agreement.” Fed. R.
Crim. P. 11(c)(1). Rule 12.1 provides that “[a]n attorney for the govern-
ment may request in writing that the defendant notify an attorney for the
government of any intended alibi defense,” Fed. R. Crim. P. 12.1(a)(1),
and that, following such a request, “the defendant must serve written
notice on an attorney for the government of any intended alibi defense,”
Fed. R. Crim. P. 12.1(a)(2). Rule 14 provides that “[b]efore ruling on a
defendant’s motion to sever [his trial from a codefendant’s], the court
may order an attorney for the government to deliver to the court for in
camera inspection any defendant’s statement that the government intends
to use as evidence.” Fed. R. Crim. P. 14(b). And Rule 26.2 provides that
[a]fter a witness other than the defendant has testified on direct ex-
amination, the court, on motion of a party who did not call the wit-
ness, must order an attorney for the government or the defendant and
the defendant’s attorney to produce . . . any statement of the witness
that is in their possession and that relates to the subject matter of the
witness’s testimony.
Fed. R. Crim. P. 26.2(a). A person who lacks authority to appear in a
criminal matter on behalf of the government could not perform these or
many other functions assigned to “attorney[s] for the government” by the
Federal Rules.
OIG attorneys cannot qualify as “authorized assistant[s],” or any other
type of “attorney for the government,” under this standard. As an initial
matter, nothing in the IG Act authorizes OIG attorneys to conduct crimi-
nal proceedings. See 5 U.S.C. app. §§ 4(a), 6(a), 8E(b) (listing OIG’s
duties and authorities). Ordinarily, 28 U.S.C. § 515 and related statutes
permit the Attorney General to delegate to any “officer of the Department

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of Justice,” or to any “attorney specially appointed by the Attorney Gen-
eral,” the authority to conduct criminal proceedings on the government’s
behalf. 28 U.S.C. § 515(a); see also id. §§ 518(b), 543(a). But section 9(a)
of the IG Act provides that the Attorney General may transfer “functions,
powers, [and] duties” to OIG only if those functions are “properly related
to the functions of [OIG],” transferring them would “further the purposes
of th[e] Act,” and the functions do not constitute “program operating
responsibilities.” 5 U.S.C. app. § 9(a), (a)(2); see also Authority to Con-
duct Regulatory Investigations, 13 Op. O.L.C. at 61 (stating that the IG
Act prohibits inspectors general from “conduct[ing] investigations consti-
tuting an integral part of the programs involved” (internal quotation marks
omitted)). The duty to conduct grand jury or other criminal proceedings
on behalf of the United States is unrelated to OIG’s statutory functions of
investigation, auditing, and oversight. See 5 U.S.C. app. § 4(a). Transfer-
ring criminal litigating responsibilities to OIG would undermine its inde-
pendence—preservation of which is one of the principal concerns of the
Act—by making its attorneys “responsible official[s]” who “set and
implement [Department] policy” at the same time as they oversee and
critique it. Authority to Conduct Regulatory Investigations, 13 Op. O.L.C.
at 61. And the conduct of criminal litigation is one of the Department’s
central program operating responsibilities. See 28 U.S.C. §§ 515(a), 516,
519. The plain language of section 9(a) therefore bars the Attorney Gen-
eral from assigning this responsibility to OIG.
The IG Act’s legislative history further supports this reading of section
9(a). When Congress initially enacted the IG Act in 1978, the House
Report explained that “Inspector[s] General would not conduct prosecu-
tions or decide whether prosecutions should or should not be conducted.”
H.R. Rep. No. 95-584, at 13 (1977). And when Congress extended the IG
Act to the Department in 1988, the House Report responded to concerns
that OIG’s creation would interfere with the Department’s law enforce-
ment functions: “[P]rosecution of suspected violations of Federal law and
the conduct of litigation are parts of the basic mission or program func-
tions of the Department of Justice,” the Report explained, “[and] the [IG]
[A]ct does not authorize inspectors general to engage in program func-
tions.” H.R. Rep. No. 100-771, at 9. “[I]n fact,” the Report continued,
“[section 9(a)] specifically prohibits the assignment of such responsibili-
ties to an inspector general.” Id. at 9 & n.48. The Conference Report

47
 39 Op. O.L.C. 12 (2015)

accompanying the 1988 amendments likewise indicated that OIG person-
nel would not be permitted to engage in prosecutorial functions, noting
that “[t]he conferees do not intend that the IG should render judgments on
the exercise of prosecutorial or other litigative discretion in a particular
case or controversy.” H.R. Rep. No. 100-1020, at 25 (Conf. Rep.).
Because section 9(a) prohibits the Attorney General from transferring
to OIG the authority to conduct criminal proceedings, the Attorney
General may not assign OIG that authority pursuant to 28 U.S.C. § 515
or similar general delegation statutes. As we have noted, different stat-
utes that regulate the same subject matter must be read in pari materia
and given full effect to the extent possible. See Mancari, 417 U.S. at 551.
If a general delegation statute such as 28 U.S.C. § 515 were construed to
permit assignments to OIG that section 9(a) prohibits, then section 9(a)
would be effectively inapplicable to the Department and many agencies
subject to the IG Act, because numerous statutes grant the heads of
agencies equally broad or broader authority to delegate their statutory
functions to subordinate officers. See, e.g., 28 U.S.C. § 510 (providing
that the Attorney General may authorize “any other officer” of the De-
partment to perform “any function of the Attorney General” (emphases
added)); 6 U.S.C. § 112(b)(1) (granting similar authority to the Secretary
of Homeland Security); 20 U.S.C. § 3472 (Secretary of Education); 31
U.S.C. § 321(b)(2) (Secretary of the Treasury). It is in our view implau-
sible that Congress intended section 9(a) to have such a limited effect,
particularly in light of the legislative history expressing Congress’s belief
that this provision would in fact prohibit OIG from engaging in prosecu-
tion or litigation. See H.R. Rep. No. 100-1020, at 25 (Conf. Rep.); H.R.
Rep. No. 100-771, at 9; H.R. Rep. No. 95-584, at 13. We therefore think
that, given the absence of any indication of congressional intent to the
contrary, section 9(a)—a specific provision limiting the transfer of func-
tions to inspectors general—is best construed as an exception to general
delegation provisions, like 28 U.S.C. § 515(a), that broadly authorize the
assignment of the Department’s functions to any subordinate officer or
attorney. See infra p. 74 (explaining that if “‘a general permission or
prohibition is contradicted by a specific prohibition or permission,’” then
“‘the specific provision is construed as an exception to the general one,’”
absent strong “‘textual indications that point in the other direction’”

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(quoting RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct.
2065, 2071–72 (2012))).
As a result, while the analysis in our OPR memorandum might inform
the question whether OIG investigations and reviews qualify as “dut[ies]”
justifying disclosure of grand jury materials under exception (A)(i), OIG
attorneys are unlike OPR attorneys in at least one critical respect. Like
“virtually every attorney in the Department of Justice,” OPR attorneys
may in principle be delegated the Attorney General’s authority to conduct
criminal proceedings for the Department. Sells, 463 U.S. at 426; see id. at
428; OPR Memorandum at 8 (noting that OPR attorneys are “delegee[s]
of the Attorney General”). But OIG attorneys, as we have discussed, are
barred from being assigned this authority under the IG Act. Consequently,
although OIG personnel may seek to use grand jury materials in a manner
that parallels the use discussed in our OPR Memorandum, they do not fall
within the category of persons—attorneys for the government—who may
obtain disclosure under exception (A)(i). 14

14 OIG contends that multiple district court decisions have determined that OIG attor-
neys qualify for disclosure under exception (A)(i), and questions whether this Office may
render a legal opinion disagreeing with those decisions. See OIG 2014 Memorandum at
15 & att. The decisions OIG cites are one-page memorandum orders, issued by a single
district judge, that authorized disclosure to OIG attorneys under exception (A)(i). The
relevant parts of the orders state, in their entirety, that because a particular OIG investiga-
tion of “alleged misconduct before the grand jury” was “supervisory in nature with
respect to ethical conduct of Department employees,” “disclosure of grand jury materials
to the OIG constitutes disclosure to ‘an attorney for the government for use in the perfor-
mance of such attorney’s duty’” under exception (A)(i). In re Matters Occurring Before
the Grand Jury Impaneled July 16, 1996, Misc. No. 39 (W.D. Okla. June 4, 1998) (Rus-
sell, C.J.) (order) (quoting Fed. R. Crim. P. 6(e)(3)(A)(i)); id. (Dec. 8, 1998) (same); see
id. (Nov. 15, 1999) (“Because in taking such actions, these Department personnel would
be engaged in a supervisory function, disclosure of grand jury materials to them consti-
tutes disclosure to ‘an attorney for the government for use in the performance of such
attorney’s duty.’”). Neither these orders, nor the underlying Department filings that
sought disclosure, discussed or analyzed the meaning of the terms “attorney for the
government” or “authorized assistant.” As the Supreme Court has explained, a “‘decision
of a federal district court judge is not binding precedent in either a different judicial
district, the same judicial district, or even upon the same judge in a different case.’”
Camreta v. Greene, 131 S. Ct. 2020, 2033 n.7 (2011) (quoting 18 J. Moore et al., Moore’s
Federal Practice § 134.02[1][d] (3d ed. 2011)). Nor is a district court decision binding on
the Executive Branch in activities unrelated to the case in which the court’s decision was
rendered. See In re Exec. Office of the President, 215 F.3d 20, 24–25 (D.C. Cir. 2000)

49
 39 Op. O.L.C. 12 (2015)

2.

Because exception (A)(i) does not authorize the disclosure of grand ju-
ry materials to OIG, we have also considered whether a separate excep-
tion would authorize that disclosure. Exception (A)(ii) provides:
Disclosure of a grand-jury matter—other than the grand jury’s delib-
erations or any grand juror’s vote—may be made to . . . any govern-
ment personnel—including those of a state, state subdivision, Indian
tribe, or foreign government—that an attorney for the government
considers necessary to assist in performing that attorney’s duty to
enforce federal criminal law.
Fed. R. Crim. P. 6(e)(3)(A)(ii). Like disclosure under exception (A)(i),
disclosure under this exception may be made without prior judicial ap-
proval. However, unlike in the case of disclosures under exception (A)(i),
the Rules provide that an attorney for the government must “promptly
provide the court that impaneled the grand jury with the names of all
persons to whom a disclosure has been made” under exception (A)(ii),
and “certify that the attorney has advised those persons of their obligation
of secrecy under this rule.” Fed. R. Crim. P. 6(e)(3)(B). And a person to
whom information is disclosed under this exception “may use that infor-
mation only to assist an attorney for the government in performing that
attorney’s duty to enforce federal criminal law.” Id.

(per curiam). Consistent with this rule, the Office has previously disagreed with district
court decisions after independently analyzing the questions presented and reaching
contrary conclusions, including where the court espoused a view previously advanced by
the Department. See, e.g., Whether the Wire Act Applies to Non-Sports Gambling, 35 Op.
O.L.C. 134, 138 (2011) (disagreeing with the decisions of courts that had adopted a
position previously advanced by the Criminal Division); Applicability of the Antideficien-
cy Act to a Violation of a Condition or Internal Cap Within an Appropriation, 25 Op.
O.L.C. 33, 52 (2001) (disagreeing with the “unexplained decision” of a district court that
appeared to interpret the Antideficiency Act in a manner “inconsistent with the Antidefi-
ciency Act’s legislative history and evolution and with the rest of the (limited) caselaw”);
Authority of the President to Remove the Staff Director of the Civil Rights Commission
and Appoint an Acting Staff Director, 25 Op. O.L.C. 103, 105 (2001) (disagreeing with a
district court decision subsequently vacated as moot). For the reasons offered above, we
respectfully disagree with the district court’s conclusion that OIG attorneys may qualify
for disclosure under exception (A)(i) solely because they perform supervisory functions.

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OIG employees clearly qualify as “government personnel” who may
receive disclosures under this exception. The language of that phrase is
broad—particularly when considered in light of the Rule’s explanation
that it extends to personnel of a “state, state subdivision, Indian tribe, or
foreign government”—and comfortably encompasses OIG employees.
Fed. R. Crim. P. 6(e)(3)(A)(ii). In addition, we have previously observed
that the use of the permissive phrase “considers necessary” in exception
(A)(ii) suggests that “Congress intended federal prosecutors to have broad
leeway in deciding what government personnel should have access to
grand jury materials for purposes of facilitating enforcement functions.”
Disclosure of Grand Jury Matters to the President and Other Officials, 17
Op. O.L.C. 59, 62 (1993) (“Disclosure to the President”). 15 Consistent
with this broad understanding of the term, we have advised that exception
(A)(ii) permits disclosures to law enforcement officers, members of the
intelligence community, and senior Administration officials, among
others. See Rule 6(e) Intelligence Community, 21 Op. O.L.C. at 161;
Disclosure to the President, 17 Op. O.L.C. at 61. See generally Sells,
463 U.S. at 436 (explaining that exception (A)(ii) was prompted by the
need to make disclosures to individuals such as “accountants” and “hand-
writing experts”); Fed R. Crim. P. 6 advisory committee’s note (1977
amendments) (“The phrase ‘other government personnel’ includes, but is
not limited to, employees of administrative agencies and government
departments.”). OIG employees are likewise “government personnel” who
may receive disclosures under exception (A)(ii).
In addition, a wide variety of Department attorneys qualify as “attor-
ney[s] for the government” who may authorize disclosures under this
exception. As we have discussed, that term includes the Attorney General,
United States Attorneys, their “authorized assistant[s],” and “any other

15 Consistent with our prior opinions, we presume that Congress intended “necessary”

in this context to mean useful or conducive, rather than strictly required. See Disclosure
to the President, 17 Op. O.L.C. at 61 (stating that exception (A)(ii) permits disclosure
“for purposes of obtaining . . . assistance”); Rule 6(e) Intelligence Community, 21 Op.
O.L.C. at 161 (similar); cf., e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413,
415 (1819) (construing the word “necessary” in the Necessary and Proper Clause to mean
“convenient,” “useful,” or “conducive”); Cellular Telecomms. & Internet Ass’n v. FCC,
330 F.3d 502, 504 (D.C. Cir. 2003) (deferring to agency’s interpretation of “necessary” in
telecommunications statute as referring to “a strong connection” between means and
ends).

51
 39 Op. O.L.C. 12 (2015)

attorney authorized by law to conduct proceedings under these rules as a
prosecutor”—and thus extends to any Department attorney who is (and
perhaps any Department attorney who may be) authorized to conduct
criminal proceedings on behalf of the federal government. Fed. R. Crim.
P. 1(b)(1); see supra pp. 43–46.
The scope of permissible disclosure to OIG officials under exception
(A)(ii) thus turns on the circumstances in which a Department attorney—
including a member of Department leadership—may reasonably “consid-
er[]” an OIG official “necessary to assist in performing that attorney’s
duty to enforce federal criminal law.” Fed. R. Crim. P. 6(e)(3)(A)(ii).
This Office has previously noted several relatively straightforward ways
in which this language limits the permissible scope of disclosures. To
begin with, consistent with the plain language of this provision, a De-
partment attorney may make a disclosure only for the purpose of obtain-
ing assistance in performing her duty to enforce “federal criminal law.”
Id. (emphasis added). Thus, an attorney may not authorize disclosures
under exception (A)(ii) to assist in the performance of her civil or admin-
istrative duties, or to senior White House policymakers for purposes of
“general policymaking.” Disclosure to the President, 17 Op. O.L.C. at
61–62, 64; see Sells, 463 U.S. at 427. We have also observed that, be-
cause disclosures under exception (A)(ii) may be made only to a person
whom a Department attorney “considers necessary to assist in performing
that attorney’s duty,” Fed. R. Crim. P. 6(e)(3)(A)(ii) (emphasis added),
an attorney may not make disclosures to assist in the performance of
duties she herself does not hold. See Rule 6(e) Intelligence Community,
21 Op. O.L.C. at 171. In addition, we have advised that the same phrase
requires that any disclosure be made “in accordance with an actual de-
termination made by an attorney.” Memorandum for Philip B. Heymann,
Assistant Attorney General, Criminal Division, and William P. Tyson,
Acting Director, Executive Office for United States Attorneys, from John
M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re:
Computerized Preservation and Use of Grand Jury Material at 4 (May 2,
1980). Hence, while an attorney has “broad leeway” in judging what dis-
closures are proper, Disclosure to the President, 17 Op. O.L.C. at 62
(citing S. Rep. No. 95-354, at 8 (1977)), she must always exercise her
independent judgment before authorizing the disclosure of grand jury
information to a particular recipient. Thus, for example, we concluded

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that an attorney could not place grand jury materials on a computerized
database that law enforcement officers could use for purposes of which
the attorney was unaware. See Memorandum for Roger B. Clegg, Acting
Assistant Attorney General, Office of Legal Policy, and John Mintz,
Assistant Director and Legal Counsel, FBI, from Robert B. Shanks,
Deputy Assistant Attorney General, Office of Legal Counsel, Re: Author-
ity of FBI Agents to Exchange Grand Jury Material Pursuant to Rule
6(e)(3)(A)(ii) of the Federal Rules of Criminal Procedure (Feb. 14, 1984)
(“Shanks Memorandum”).
Within these limitations, we believe exception (A)(ii) permits Depart-
ment attorneys to authorize the disclosure of grand jury information to
OIG both to assist with individual law enforcement actions and, where the
disclosures are authorized by members of the Department leadership, to
assist in the direction and supervision of the Department’s law enforce-
ment programs and operations. First, because an attorney’s “duty to
enforce federal criminal law” plainly includes his duty to prosecute crimi-
nal offenses, exception (A)(ii) permits Department attorneys to authorize
disclosure of grand jury materials to OIG in connection with OIG investi-
gations and reviews those attorneys believe could assist them with ongo-
ing or potential prosecutions. Exception (A)(ii) was drafted specifically in
order to enable prosecutors to make disclosures to investigators who could
develop the basis for and aid in prosecutions. See Sells, 463 U.S. at 436
(stating that exception (A)(ii) was enacted “because Justice Department
attorneys found that they often need active assistance from . . . investiga-
tors from the [FBI], IRS, and other law enforcement agencies”); Fed. R.
Crim. P. 6 advisory committee’s note (1977 enactment) (stating that
“[o]ften the prosecutors need the assistance of the agents in evaluating
evidence” or conducting “further investigation”). As we have discussed,
OIG agents have a number of investigative duties, and are required to
“report expeditiously to the Attorney General whenever the Inspector
General has reasonable grounds to believe there has been a violation of
Federal criminal law.” 5 U.S.C. app. § 4(d); see Investigative Officers, 14
Op. O.L.C. at 109. Hence, a Department attorney may authorize disclo-
sure of information to OIG in connection with an OIG investigation that
the attorney concludes will be likely to aid in an ongoing or potential
prosecution in which the attorney is involved.

53
 39 Op. O.L.C. 12 (2015)

Second, we think that exception (A)(ii) permits a Department leader-
ship official to authorize disclosure of grand jury information to OIG in
connection with OIG investigations or reviews that the official believes
could assist her in carrying out her duty to conduct programmatic or
policy supervision of the Department’s criminal law enforcement activi-
ties. As we discussed in analyzing the scope of permissible disclosure
under Title III, programmatic and policy supervision can affect the pre-
vention, investigation, or prosecution of criminal conduct as directly as
individual trial decisions, see Van de Kamp, 555 U.S. at 346, and consti-
tute a central means by which the Attorney General and her assistants
direct and control the Department’s law enforcement and prosecutorial
functions. See supra pp. 29–30. Such activities are thus part of Depart-
ment leadership’s “duty to enforce federal criminal law” under the plain
language of that phrase. Further, it would be reasonable for a member of
Department leadership to “consider[]” many OIG reviews “necessary to
assist” her in performing this duty. Fed. R. Crim. P. 6(e)(3)(A)(ii). As we
also noted in the Title III context, Congress established OIG to “keep[]
the head of the [Department] . . . informed about problems” in the De-
partment and to recommend “corrective action,” 5 U.S.C. app. § 2(3), and
OIG’s reviews have historically provided the Department’s leadership
with “critical advice, information, and insights in connection with the
exercise of their supervisory responsibilities over the Department’s crimi-
nal law enforcement programs, policies, and practices,” Yates Letter at 3.
It would therefore generally be reasonable for a member of Department
leadership to conclude that an OIG investigation or review that concerns,
or is designed to develop recommendations about, the manner in which
the Department enforces federal criminal law is “necessary to assist” in
the disclosing official’s supervision of that function on a programmatic or
policy basis.
We acknowledge that certain language in Sells might be read to sug-
gest a narrower scope of appropriate disclosures. In particular, various
statements in the opinion could be read to suggest that an attorney’s
“duty” under exception (A)(i) includes only her duty to conduct or su-
pervise a particular pending prosecution. See, e.g., Sells, 463 U.S. at 427
(“We hold that (A)(i) disclosure is limited to use by those attorneys who
conduct the criminal matters to which the materials pertain.” (emphasis
added)); id. at 429 n.11 (stating that “every attorney (including a super-

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visor) who is working on a prosecution may have access to grand jury
materials, at least while he is conducting criminal matters” (emphasis
added)); id. at 438 (noting that the “primary objection” to a proposal to
allow disclosures to other governmental personnel was a concern that
they would use grand jury information “to pursue civil investigations or
unrelated criminal matters” (emphasis added)). And although Sells
concerned exception (A)(i)—which authorizes disclosures for use in
performing an attorney’s “duty”—rather than exception (A)(ii)—which
authorizes disclosure in connection with an attorney’s “duty to enforce
federal criminal law”—the Sells Court explained that the “criminal-use
limitation” in exception (A)(ii) “merely ma[de] explicit what [Congress]
believed to be already implicit in the existing (A)(i) language.” Id.
at 436. This suggests that the Court would have viewed its analysis of the
limitations on exception (A)(i) as applicable to exception (A)(ii) as well.
Thus, it might be argued that programmatic and policy supervision does
not fall within an attorney’s “duty to enforce federal criminal law” be-
cause it differs from the duties discussed in Sells in two respects: first,
it involves supervision of law enforcement agents in addition to prosecu-
tors; and second, it concerns criminal matters unrelated to the grand
jury investigation in which the information to be disclosed was devel-
oped. It might also be argued that disclosure to OIG is different from the
disclosures contemplated in Sells because OIG will frequently use grand
jury information to investigate past conduct in completed law enforce-
ment operations, rather than to assist in ongoing prosecutions.
In our view, however, notwithstanding these distinctions, Sells and sub-
sequent opinions support reading exception (A)(ii) to permit disclosures
to OIG in connection with Department leadership’s duties of programmat-
ic and policy supervision. With respect to the first arguable distinction—
between supervision of law enforcement officers and supervision of
prosecutors—Sells expressly recognized that a prosecutor’s authority to
“command[]” law enforcement officers is a critical means by which she
carries out her prosecutorial duties and renders assistance to the grand
jury. Sells, 463 U.S. at 430 (stating that “a modern grand jury would be
much less effective without the assistance of the prosecutor’s office and
the investigative resources it commands”); id. at 430 n.13 (“Not only
would the prosecutor ordinarily draw up and supervise the execution of
subpoenas, but also he commands the investigative forces that might be

55
 39 Op. O.L.C. 12 (2015)

needed to find out what the grand jury wants to know.”). Moreover, as
Sells also recognized (and as we noted above), Congress added exception
(A)(ii) in part to ensure that prosecutors could obtain the assistance of law
enforcement officers in developing the basis for and conducting prosecu-
tions. See id. at 436. Sells therefore fully supports the proposition that the
duty to supervise prosecutions includes a duty to supervise law enforce-
ment officers in conduct that assists with prosecutions.
We likewise believe that the second arguably distinctive characteristic
of programmatic and policy supervision—that it concerns criminal mat-
ters unrelated to the grand jury investigation in which the materials being
sought were originally developed—is consistent with Sells. Lower courts,
treatises, and this Office have repeatedly interpreted Sells to permit dis-
closure in connection with any “criminal matters to which [grand jury]
materials pertain,” id. at 427, and not merely those matters in which the
information was developed. See, e.g., Impounded, 277 F.3d 407, 413 (3d
Cir. 2002) (holding that the disclosure of grand jury materials to a federal
prosecutor in another district was permissible under exception (A)(i));
1 Sara Sun Beale et al., Grand Jury Law and Practice § 5:8, at 5-58 (2d
ed. 2014) (“Beale”) (stating that an attorney may make a disclosure under
exception (A)(i) “in connection with a separate prosecution”); Shanks
Memorandum at 2 (concluding that exception (A)(ii) authorizes disclosure
to FBI agents assisting in “a specific criminal investigation” unrelated to
the initial grand jury investigation); cf. Fed. R. Crim. P. 6(e)(3)(C) (per-
mitting the automatic disclosure of grand jury materials to “another feder-
al grand jury”). This Office has also previously concluded that the disclo-
sure authorization in exception (A)(ii) extends to general supervision of
law enforcement activities as well as to specific prosecutions: In our Rule
6(e) Intelligence Community opinion, for example, we advised that the
Attorney General may make disclosures to assist “a broad criminal law
enforcement program for which [she] is responsible,” 21 Op. O.L.C. at
171; and in our Disclosure to the President opinion, we cited legislative
history supporting the view that “Congress intended federal prosecutors to
have broad leeway in deciding what government personnel should have
access to grand jury materials for purposes of facilitating enforcement
functions,” 17 Op. O.L.C. at 62. See also 1 Beale § 5:8, at 5-58 (stating
that attorneys may disclose materials “in connection with the evaluation
or planning of broad prosecutorial policies”).

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Consistent with these authorities, we do not think the language in Sells
referring to specific “prosecutions,” e.g., 463 U.S. at 429 n.11, should be
read to preclude disclosures that an attorney believes could aid the general
supervision of the Department’s law enforcement programs and activities.
To begin with, the Court in Sells addressed the permissibility of disclo-
sure only in connection with civil litigation, see id. at 420; it did not
discuss, and had no occasion to address, the permissible scope of disclo-
sure in connection with programmatic supervision of criminal law en-
forcement. Moreover, other language in the opinion is consistent with
permitting disclosure for broad supervisory purposes. The Court expressly
noted that exception (A)(ii) gives prosecutors a “free hand concerning use
of grand jury materials” in connection with criminal matters. Id. at 441–
42; see also Disclosure to the President, 17 Op. O.L.C. at 62 (noting the
“broad leeway” possessed by attorneys under exception (A)(ii)). Further,
permitting disclosure for broad supervisory purposes would not raise the
policy concerns that led the Sells Court to deem disclosure for civil pur-
poses unlawful: because such disclosure would not be used in connection
with investigating the subjects of or witnesses in the underlying grand
jury investigations, it would not discourage witnesses from testifying,
create incentives for prosecutors to misuse the grand jury, or subvert
limits on civil discovery. See Sells, 463 U.S. at 432–34; OPR Memoran-
dum at 4–6 (similarly distinguishing Sells on this basis). In addition,
prohibiting such disclosure would have the same kinds of disruptive
effects we identified in connection with Title III, by preventing Depart-
ment leadership from obtaining (or disclosing) Rule 6(e) information for
the purpose of conducting policy or programmatic supervision of grand
jury proceedings or other law enforcement programs that used grand jury
information. For all these reasons, we doubt that if the Supreme Court had
squarely addressed the question, it would have concluded that exception
(A)(ii) does not permit the Attorney General and her assistants to obtain
or disclose grand jury information in order to set policies and develop
guidance for law enforcement purposes.
Finally, while it is true that OIG officials would frequently use grand
jury information to evaluate completed law enforcement operations
rather than to assist in ongoing operations or prosecutions, “supervisors
. . . must be able to evaluate [past] conduct once a course of action has
been set” to “perform properly their oversight role.” OPR Memorandum

57
 39 Op. O.L.C. 12 (2015)

at 7. As we explained in our OPR Memorandum, “post mortem review”
of the conduct of a prosecution is necessary to evaluate and, if appropri-
ate, take administrative action with respect to that conduct. Id. at 8. OIG
investigations and reviews of the past conduct of Department criminal
law enforcement programs likewise help Department leadership evaluate
that conduct and take appropriate corrective action if necessary. We
therefore believe that, notwithstanding the apparently narrow language in
Sells, Department leadership’s “duty to enforce federal criminal law”
includes its duties to supervise Department law enforcement efforts on a
programmatic and policy basis, and that it would generally be reasonable
for Department leadership to “consider[]” it “necessary to assist” it in
performing these duties to authorize the disclosure of grand jury infor-
mation to OIG in connection with investigations or reviews that concern,
or are designed to develop recommendations about, the manner in which
the Department carries out its criminal law enforcement functions. Fed.
R. Crim. P. 6(e)(3)(A)(ii).
As in the Title III context, however, we do not think that exception
(A)(ii) would permit Department attorneys to disclose grand jury material
to OIG in relation to all OIG audits, investigations, and reviews. In par-
ticular, we doubt that a Department leadership official may authorize
disclosures in connection with investigations that are only tangentially
related to programmatic and policy supervision of law enforcement activi-
ties, such as routine financial audits of components that happen to engage
in law enforcement functions. Similarly, especially in light of Sells, we do
not believe a Department attorney may authorize disclosure of grand jury
information to OIG in connection with OIG investigations or reviews that
primarily relate to civil enforcement or recovery efforts (such as investi-
gations designed to assist the Department in recovering funds through a
False Claims Act suit), rather than criminal prosecutions.

C.

The third and final statutory prohibition on disclosure we consider is
section 626 of FCRA. Congress enacted FCRA to ensure “fair and accu-
rate credit reporting,” which it deemed “essential to the continued func-
tioning of the banking system.” 15 U.S.C. § 1681(a)(1). FCRA compre-
hensively regulates the “confidentiality, accuracy, relevancy, and proper
utilization” of information held by consumer credit reporting agencies. Id.

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 Access of DOJ IG to Certain Information Protected from Disclosure by Statute

§ 1681(b). Among other things, it restricts the circumstances in which
consumer reporting agencies may disclose consumer credit reports, id.
§ 1681b; specifies what information may be contained in those reports, id.
§ 1681c; and imposes civil, administrative, and sometimes criminal liabil-
ity for failure to comply with its requirements, id. §§ 1681n–1681s.
In 1996, Congress amended FCRA to add a new basis for disclosure of
consumer credit information. See Intelligence Authorization Act for Fiscal
Year 1996, Pub. L. No. 104-93, sec. 601(a), § 624, 109 Stat. 961, 974
(codified at 15 U.S.C. § 1681u). The new provision, now FCRA section
626, authorizes the FBI to present a consumer credit reporting agency
with a written request, signed by the Director of the FBI or his designee,
certifying that the FBI seeks certain information “for the conduct of an
authorized investigation to protect against international terrorism or
clandestine intelligence activities.” 15 U.S.C. § 1681u(a). Upon receipt of
such a National Security Letter (“NSL”), a credit agency must disclose to
the FBI the “names and addresses of all financial institutions . . . at which
a consumer maintains or has maintained an account,” id., and “identifying
information respecting a consumer, limited to name, address, former
addresses, places of employment, or former places of employment,” id.
§ 1681u(b). Section 626(f ) bars further dissemination of this information
except in limited circumstances. It provides:
The Federal Bureau of Investigation may not disseminate infor-
mation obtained pursuant to this section outside of the Federal Bu-
reau of Investigation, except to other Federal agencies as may be
necessary for the approval or conduct of a foreign counterintelli-
gence investigation, or, where the information concerns a person
subject to the Uniform Code of Military Justice, to appropriate in-
vestigative authorities within the military department concerned as
may be necessary for the conduct of a joint foreign counterintelli-
gence investigation.
Id. § 1681u(f ).* FCRA makes any violation of this section by a federal
agency or officer grounds for civil damages or disciplinary action. Id.
§ 1681u(i)–( j).

* Editor’s Note: Section 626(f ) was redesignated as section 626(g) in 2015. See USA
FREEDOM Act of 2015, Pub. L. No. 114-23, § 503(c)(1), 129 Stat. 268, 290.

59
 39 Op. O.L.C. 12 (2015)

OIG argues that under the terms of section 626(f ), it may obtain unre-
stricted access to consumer information that the FBI has obtained under
section 626. In OIG’s view, it is exempt from the limitations on disclo-
sure contained in section 626(f ) because it is part of the same agency as
the FBI. See OIG 2014 Memorandum at 12–13; OIG FCRA Memoran-
dum at 3. We consider this argument below. In addition, although OIG
does not make the argument, we consider whether OIG may obtain sec-
tion 626 information under the first exception set forth in section 626(f ),
which permits the FBI to make disclosures “to other Federal agencies as
may be necessary for the approval or conduct of a foreign counterintel-
ligence investigation.” 15 U.S.C. § 1681u(f ). As we will explain, we
conclude that although OIG is subject to section 626(f )’s prohibition on
disclosure, it may nonetheless obtain covered information under that
provision’s first exception in certain circumstances.

1.

OIG argues that it is permitted to obtain section 626 information from
the FBI in connection with any of its audits, investigations, or reviews. It
contends that, while section 626(f ) bars the FBI from disclosing infor-
mation obtained pursuant to an NSL to “other Federal agencies,” except
“as may be necessary for the approval or conduct of a foreign counterin-
telligence investigation,” this bar does not apply to OIG because both OIG
and the FBI are components of the Department. See OIG FCRA Memo-
randum at 3. OIG argues that this reading of section 626(f ) is supported
by the text of that provision’s first exception, by implication from a stat-
ute enacted subsequent to section 626, and by the general purposes of
OIG reviews. See OIG 2014 Memorandum at 12–14; OIG FCRA Memo-
randum at 2–4.
OIG’s interpretation is difficult to square with the plain language of the
statute. Section 626(f ) states that the FBI “may not disseminate infor-
mation obtained pursuant to this section outside of the Federal Bureau of
Investigation” except in two specific circumstances. On its face, this
provision unambiguously bars the FBI from disclosing information out-
side of the FBI, unless an exception applies. OIG is outside of the FBI,
and so falls within this prohibition on disclosure. OIG’s argument—that it
is exempt from the prohibition because it is a Department component—

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would require reading “Federal Bureau of Investigation” to mean “De-
partment of Justice.” But these two entities are not equivalent, and Con-
gress chose to refer to the former rather than the latter in section 626(f ).
OIG disputes this straightforward reading of section 626(f ) by pointing
to the provision’s first exception, which permits the FBI to disclose sec-
tion 626 information to “other Federal agencies.” OIG reasons that be-
cause other components of the Department are part of the same agency as
the FBI, and “not an ‘other Federal agency’” relative to the FBI, they
cannot qualify for disclosure under this exception. OIG FCRA Memoran-
dum at 2. As a consequence, this argument continues, reading section
626(f ) as its plain text indicates would lead to the unlikely result that the
FBI could never disclose section 626 information to Department officials
outside the FBI—a result that, as OIG explains, would be inconsistent
with the Department’s longstanding practice of making section 626 in-
formation available to the National Security Division (“NSD”) for pur-
poses of overseeing the FBI’s operations. See id.
We agree that it is highly unlikely that Congress would have barred the
FBI from disclosing section 626 information within the Department,
particularly while permitting such disclosure to agencies outside the
Department. However, we disagree that the statute’s reference to “other
Federal agencies” compels such a result. Although the term “agency” is
sometimes used to refer to the Department of Justice as a whole, it is also
used to refer to components within the Department. Compare 28 U.S.C.
§ 527 (distinguishing between “the Department of Justice” and “other
Federal agencies”), and 5 U.S.C. § 5721(1)(A) (“[f ]or the purpose of this
subchapter . . . ‘agency’ means . . . an Executive agency”), with 28 U.S.C.
§ 509 (vesting “all functions of agencies and employees of the Depart-
ment of Justice” in the Attorney General), and 5 U.S.C. § 551 (“For the
purpose of this subchapter . . . ‘agency’ means each authority of the Gov-
ernment of the United States, whether or not it is within or subject to
review by another agency.”). In our view, the term “agency” is best read
in the latter sense in section 626(f ). Notably, the statute does not simply
state that the FBI “may not disseminate [section 626 information], except
to other Federal agencies” for certain purposes; it says the FBI “may not
disseminate [section 626 information] outside of the Federal Bureau of
Investigation, except to other Federal agencies” for those purposes. 15
U.S.C. § 1681u(f ) (emphasis added). The express reference to “outside of
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 39 Op. O.L.C. 12 (2015)

the [FBI]” strongly suggests that “other Federal agencies” refers to any
federal entity other than the Federal Bureau of Investigation, including
other components of the Department.
This conclusion is reinforced by the significant role that other De-
partment components play in “the approval or conduct of [the FBI’s]
foreign counterintelligence investigation[s].” Id. For decades, the Attor-
ney General has been authorized to “supervis[e]” and “establish” “regu-
lations” concerning the FBI’s counterintelligence activities. Exec. Order
No. 12333, § 1.14, 46 Fed. Reg. 59,941, 59,949 (Dec. 4, 1981); see The
Attorney General’s Guidelines for Domestic FBI Operations at 5 (Sept.
29, 2008) (“AG Guidelines”), http://www.justice.gov/sites/default/files/
ag/legacy/2008/10/03/guidelines.pdf (setting guidelines for the conduct
of domestic FBI operations, including “counterintelligence activities”);
Memorandum for the Director, FBI, et al., from the Attorney General,
Re: Intelligence Sharing Procedures for Foreign Intelligence and For-
eign Counterintelligence Investigations Conducted by the FBI (Mar. 6,
2002); 28 C.F.R. § 0.72 (assigning counterintelligence oversight func-
tions to NSD). By permitting disclosure for the “approval” of counterin-
telligence investigations, Congress presumably intended to permit the
FBI to make disclosures consistent with this longstanding grant of super-
visory authority. Indeed, a prior version of the bill would have made the
first exception applicable exclusively to disclosures within the Depart-
ment of Justice. See Comprehensive Terrorism Prevention Act of 1995,
S. 735, 104th Cong. § 502(a) (1995) (“The [FBI] may not disseminate
information obtained pursuant to this section outside of the [FBI], except
. . . to the Department of Justice, as may be necessary for the approval or
conduct of a foreign counterintelligence operation.”). It is unlikely that,
in later broadening the scope of the exception to allow disclosures to
“other Federal agencies,” Congress intended to exclude disclosures to the
agency that was previously the exception’s sole beneficiary.
OIG also argues that its view that section 626(f ) permits disclosure to
OIG finds support in a statutory provision Congress enacted after section
626: section 119 of the USA PATRIOT Improvement and Reauthorization
Act of 2005, Pub. L. No. 109-177, 120 Stat. 192, 219 (“Patriot Reauthori-
zation Act”). As OIG points out, section 119 of the Patriot Reauthoriza-
tion Act directed OIG to “perform an audit of the effectiveness and use,
including any improper or illegal use, of national security letters issued by
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the Department of Justice,” including NSLs issued pursuant to section
626. Id. § 119(a), (g)(4). OIG argues that “[f ]ulfilling the mandates of the
Patriot Reauthorization Act . . . clearly required [it] to have access to the
‘raw data’ the Department obtained through [NSLs], including Section
[626] credit report information.” OIG 2014 Memorandum at 13. And
because that Act “contained no provision granting the OIG access to
Section [626] information,” OIG reasons that “in 2005 Congress believed
the OIG already had access to FCRA information in order to audit such
dissemination.” Id. (emphasis added). But this provision suggests at most
that the Congress that enacted the Patriot Reauthorization Act believed
OIG would have access to section 626 information as necessary for OIG
to evaluate the legality and effectiveness of the Department’s use of
NSLs. And for reasons we explain below, we believe OIG is eligible to
receive section 626 information for that purpose under section 626(f )’s
first exception. See infra Part II.C.2. The Patriot Reauthorization Act thus
does not provide a basis for reading section 626(f ), contrary to its plain
text, to grant OIG unfettered access to such information.
Finally, OIG contends that the limits on dissemination contained in
section 626 were intended to protect consumer privacy, and that it
would undermine rather than further that purpose to prohibit OIG from
obtaining the information necessary to determine whether the FBI is
abiding by section 626’s requirements. See OIG 2014 Memorandum at
12–13; OIG FCRA Memorandum at 3. We agree that, in enacting sec-
tion 626, Congress sought to build “safeguards . . . into the legislation”
that would “minimiz[e]” the “threat to privacy” posed by the FBI’s
ability to use NSLs. H.R. Rep. No. 104-427, at 36 (1995); see also 15
U.S.C. § 1681(a)(4) (finding “a need to insure that consumer reporting
agencies exercise their grave responsibilities with . . . a respect for the
consumer’s right to privacy”). But it is entirely consistent with Con-
gress’s purpose of protecting consumer privacy to prevent broad disclo-
sure of consumer information even within the Department of Justice.
Nor would a restriction on disclosure outside the FBI necessarily pre-
clude all oversight of the use of section 626 authority, insofar as the
FBI’s internal audit department or Office of Professional Responsibility
could conduct reviews of the use of that authority. Further, as we ex-
plain below, we believe OIG may obtain section 626 information in
order to monitor the FBI’s compliance with FCRA’s disclosure re-

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 39 Op. O.L.C. 12 (2015)

strictions pursuant to section 626(f )’s first exception. The statute’s pur-
pose thus does not require OIG to have blanket access to section 626
information.

2.

We now consider whether OIG is eligible to receive disclosures under
section 626(f )’s first exception, which authorizes the FBI to disclose
information obtained pursuant to an NSL “to other Federal agencies as
may be necessary for the approval or conduct of a foreign counterintelli-
gence investigation.” 15 U.S.C. § 1681u(f ). As we have discussed, com-
ponents of the Department outside the FBI, including OIG, are “other
Federal agencies” within the meaning of this provision. See supra pp. 61–
62. Consequently, this exception permits OIG to obtain access to section
626 information “as may be necessary for the approval or conduct of a
foreign counterintelligence investigation.” 15 U.S.C. § 1681u(f ).
In our view, this language authorizes disclosure in two broad circum-
stances. First, and most straightforwardly, it authorizes disclosures as
necessary to facilitate approval of a particular foreign counterintelligence
investigation, or to obtain assistance in conducting such an investiga-
tion. 16 For example, the first exception would allow the FBI to disclose
information to Department attorneys in order to enable those attorneys to
file an application for electronic surveillance pursuant to Title III or the
Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1801 et seq.,
or to advise the FBI on the legality of a method the FBI proposes to use in
an investigation. In addition, the first exception would allow the FBI to
disclose information to Department supervisors to enable them to monitor
a particular foreign counterintelligence operation, to ensure that it was
being conducted lawfully and in conformance with Department guide-
lines.
Second, we believe that section 626(f )’s first exception permits disclo-
sure of information as necessary for the programmatic and policy supervi-
sion of foreign counterintelligence investigations generally—that is, to
ensure that investigations are (or were) approved or conducted in accord-

16 As in the case of Rule 6(e)(3)(A)(ii), we presume that Congress used the word “nec-

essary” to mean useful or conducive rather than required. See supra note 15.

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ance with applicable statutes, regulations, and guidelines; to identify
systemic problems in the approval or conduct of investigations; and to
update guidelines and procedures in response to identified deficiencies. It
is true that section 626(f ) authorizes disclosures only as necessary for the
approval or conduct of “a foreign counterintelligence investigation.”
(Emphases added.) But Congress has instructed that “unless the context
indicates otherwise . . . words importing the singular include and apply to
several persons, parties, or things.” 1 U.S.C. § 1; see also Caraco Pharm.
Labs., Ltd. v. Novo Nordisk A/S, 132 S. Ct. 1670, 1681 (2012) (explaining
that the meaning of the word “a” and its variants “turns on its context”).
In this case, we have not found any indication in the statute or its legisla-
tive history—apart from the use of the phrase “a[n] . . . investigation”
itself—that Congress intended to permit disclosures in connection with
only one investigation at a time. Nor, of particular relevance here, can we
find any indication that Congress intended to prevent Department leader-
ship officials from obtaining information protected by section 626(f ) for
use in supervising the FBI’s conduct of foreign counterintelligence inves-
tigations. In a manner similar to that discussed in the Title III and Rule
6(e) contexts, Department leadership would be severely constrained in its
ability to supervise the FBI’s conduct of such investigations on a pro-
grammatic or policy basis, and to supervise the FBI’s use of NSLs issued
pursuant to section 626 on a similar basis, if it could not obtain section
626 information for that purpose. Indeed, under guidance issued by De-
partment leadership, the FBI routinely provides section 626 information to
other Department components to assist in such supervision. See, e.g., AG
Guidelines at 10–11 (authorizing disclosure of section 626 information to
NSD for supervisory purposes). And, as noted above, Congress likewise
assumed in the Patriot Reauthorization Act that OIG would be able to
obtain the “raw data” needed to conduct a review of the FBI’s use of
NSLs. See supra p. 63. In light of these considerations, we believe that
section 626(f )’s first exception permits the FBI to disclose section 626
information not only to obtain assistance in “the approval or conduct” of a
particular foreign counterintelligence investigation, but also to aid in
supervision of “the approval or conduct” of foreign counterintelligence
investigations generally.
OIG may in principle obtain section 626 information under either of
these rationales. It appears unlikely that the FBI would need to disclose

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 39 Op. O.L.C. 12 (2015)

section 626 information to OIG to obtain assistance in the approval or
conduct of a particular foreign counterintelligence investigation, since
OIG involvement in such investigations would generally entail exercising
“program operating responsibilities” that the Attorney General may not
assign to OIG. 5 U.S.C. app. § 9(a); see also Authority to Conduct Regu-
latory Investigations, 13 Op. O.L.C. at 61–62. However, there might be
rare circumstances in which a foreign counterintelligence investigation
was intertwined with an investigation of internal misconduct. In such
circumstances, it is conceivable that OIG could obtain section 626 infor-
mation to facilitate the conduct of that investigation.
In other circumstances, OIG could obtain information under the broader
supervisory rationale. As we have noted elsewhere, OIG plays a central
role in helping Department leadership supervise the Department’s law
enforcement activities through both reviews of misconduct and program-
matic reviews intended to help improve law enforcement operations in the
future. See supra pp. 32–35, 54. In the context of section 626, it is reason-
able to conclude that OIG investigations and reviews that could inform
decisions by Department leadership concerning supervision of foreign
counterintelligence investigations—such as OIG’s congressionally man-
dated review of the FBI’s use of NSLs—are “necessary for the approval
or conduct of ” those investigations within the meaning of section 626(f ).
An OIG review of foreign counterintelligence investigations could, for
example, lead to changes in the process for authorizing such investiga-
tions, or help leadership officials ensure that investigations are carried out
lawfully. Indeed, OIG’s review of the FBI’s use of NSLs illustrates how
such a process might work. After that review uncovered serious problems
with the FBI’s use of NSLs, the Department implemented a number of
measures aimed at ensuring greater supervision and control of the FBI’s
activities. See Fact Sheet: Department of Justice Corrective Actions on
the FBI’s Use of National Security Letters (Mar. 20, 2007), http://www.
justice.gov/archive/opa/pr/2007/March/07_nsd_168.html (“Corrective Ac-
tions on the FBI’s Use of NSLs”). These measures included retrospective
and continuing audits of the FBI’s NSL usage designed to identify poten-
tial legal violations, as well as measures intended to allow the Attorney
General to promptly address needed changes in policy, training, and
oversight. Id. Because investigations and reviews of this kind concern, or
are designed to develop recommendations about, leadership decisions

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regarding the approval or conduct of foreign counterintelligence investi-
gations, they are in our view “necessary to the approval or conduct” of
such investigations as that phrase is used in section 626(f ).
This reading of section 626(f ) is further supported by the FBI’s practice
of providing information obtained through NSLs to NSD to facilitate
NSD’s supervision of the FBI’s compliance with applicable laws and
guidelines in matters relating to national security and foreign intelligence.
See AG Guidelines at 10–11. OIG correctly notes that NSD was given
responsibility to oversee the FBI’s activities following OIG’s critical
review of the FBI’s use of NSLs, and that NSD’s reviews are patterned
after OIG reviews. See NSD E-mail; see also OIG FCRA Memorandum;
Corrective Actions on the FBI’s Use of NSLs. It would be incongruous to
conclude that the FBI may disseminate section 626 information to NSD
because its reviews are “necessary for the approval or conduct of a for-
eign counterintelligence investigation,” but that the FBI is barred from
providing the same information to OIG in connection with reviews that
share a similar purpose and methodology, and likewise assist the Depart-
ment’s leadership in its supervisory functions. For reasons similar to those
set forth in our discussion of Title III, see supra p. 34, we do not believe
that OIG’s relative independence from the Department’s leadership makes
its reviews less valuable to leadership, or less “necessary for the approval
or conduct” of foreign counterintelligence investigations, than the compa-
rable reviews performed by NSD.
Accordingly, we conclude that the FBI may disseminate section 626
information to OIG in connection with investigations and reviews that
concern, or are designed to develop recommendations about, leadership
decisions regarding the approval or conduct of foreign counterintelligence
investigations. This conclusion, however, is subject to the same limitation
we have explained in other contexts: OIG audits, investigations, and
reviews that have only an attenuated connection to Department leader-
ship’s supervisory responsibilities relating to foreign counterintelligence
investigations, such as routine financial audits of the FBI entities that
carry out such investigations, would likely not qualify for disclosure
under section 626. See supra pp. 35–36, 58 (discussing similar limits in
the context of Title III and Rule 6(e) disclosures).

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 39 Op. O.L.C. 12 (2015)

* * * * *

In sum, Title III, Rule 6(e), and FCRA permit the disclosure of covered
information in connection with many of OIG’s investigations and reviews.
Title III permits a Department investigative or law enforcement officer to
disclose to OIG the contents of intercepted communications to the extent
that disclosure could aid either the disclosing official or OIG in the per-
formance of their respective duties related to law enforcement—including
duties related to Department leadership’s programmatic or policy supervi-
sion of the Department’s law enforcement activities. Rule 6(e), similarly,
permits the disclosure of grand jury materials to OIG if an attorney for the
government determines that such disclosure could assist her in the per-
formance of her criminal law enforcement duties, including any supervi-
sory law enforcement duties that attorney may have. And FCRA permits
the FBI to disclose to OIG consumer information it obtained pursuant to
section 626, if such a disclosure could assist in the approval or conduct of
foreign counterintelligence investigations, including in the supervision of
such investigations on a programmatic or policy basis. 17
These statutes do not, however, authorize Department officials to dis-
close protected information to OIG in connection with all of OIG’s activi-
ties. As we have noted, Title III and Rule 6(e) do not permit disclosures
that have either an attenuated or no connection with the conduct of the
Department’s criminal law enforcement programs and operations, and
section 626 of FCRA does not permit disclosures that have either an
attenuated or no connection with the approval or conduct of foreign
counterintelligence investigations. Thus, for example, Title III, Rule 6(e),
and section 626 do not permit OIG to obtain covered information to assist
in investigations of the Department’s civil activities that are only tangen-
tially related to criminal law enforcement or foreign counterintelligence
efforts, or to conduct routine financial audits of Department components.
Even when these statutes permit disclosures to OIG, moreover, they im-

17 You have not asked, and this opinion does not address, what further disclosures OIG

may make of sensitive information it receives under Title III, Rule 6(e), or FCRA. We
stress, however, that nothing in this opinion is intended to suggest that OIG may disclose
protected materials in a public report. Information received by OIG remains subject to the
statutory restrictions on disclosure, and OIG may further disclose that information only to
the extent permitted by those restrictions and any other applicable laws.

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pose certain procedural preconditions on those disclosures. Disclosures
under Title III require an assessment of whether a particular OIG investi-
gation is appropriate to the proper performance of an official duty related
to law enforcement. Disclosures under Rule 6(e) require an independent
judgment, made by an attorney for the government, that OIG assistance is
necessary to perform that attorney’s duty to enforce criminal law, and
further require compliance with certain additional procedural obligations.
And disclosures under section 626 of FCRA require an assessment of
whether an OIG investigation is “necessary for the approval or conduct”
of foreign counterintelligence investigations.
If section 6(a)(1) of the IG Act displaced the limitations on disclosure
in these statutes, it would—unlike these statutory exceptions—permit
unconstrained disclosure of all protected information to OIG. Thus, OIG
could receive information protected by Title III, Rule 6(e), and section
626 in connection with its investigations of the Department’s civil activi-
ties, its routine financial or administrative audits, and any other of its
authorized activities. Moreover, information already available to OIG
under the terms of Title III, Rule 6(e), and section 626 would be available
without a prior assessment of whether that information was related to the
Department’s law enforcement functions or the FBI’s conduct of foreign
counterintelligence investigations, and, in the case of Rule 6(e) infor-
mation, without a prior determination by an attorney for the government
that OIG assistance was necessary to assist in performing the attorney’s
duty to enforce federal criminal law. Because section 6(a)(1) would thus
provide OIG with access to protected information in more circumstances
and on broader terms than are provided for in Title III, Rule 6(e), and
section 626 themselves, we must consider whether section 6(a)(1) over-
rides the limits imposed by those statutes.

III.

In this Part, we address whether section 6(a)(1) overrides the disclo-
sure limitations in Title III, Rule 6(e), and section 626. We first discuss
the general interpretive principles that will guide our analysis, conclud-
ing that only a clear statement of congressional intent to override con-
flicting statutes would be sufficient to abrogate the detailed prohibitions
on disclosing sensitive information contained in Title III, Rule 6(e), and
section 626. We then analyze the text, structure, and history of the IG

69
 39 Op. O.L.C. 12 (2015)

Act to determine whether it contains such a clear statement. Finding that
it does not, we conclude that the Department remains bound by Title III,
Rule 6(e), and section 626 when it responds to OIG requests under sec-
tion 6(a)(1), and thus that it may not disclose information covered by
those statutes outside the circumstances permitted by the statutes them-
selves.

A.

Both the Supreme Court and this Office have repeatedly confronted
apparent conflicts between statutes that address the same subject matter.
Two lines of authority are particularly relevant here. In the first, the Court
and this Office have considered whether statutory provisions protecting
highly sensitive information can be overridden by competing statutory
rights of access. In the second, which is sometimes intertwined with the
first, the Court and this Office have considered the circumstances in
which a general statute can be construed to override a more specific
statutory provision. In addressing these subjects, the Court and this
Office have identified two salient interpretive principles that will guide
our analysis.
First, in a range of contexts—including contexts involving information
protected by Rule 6(e) and Title III—the Supreme Court and this Office
have declined to infer that Congress intended to override statutory limits
on the disclosure of highly sensitive information about which Congress
has expressed a special concern for privacy, absent a clear statement of
congressional intent to that effect. In Illinois v. Abbott & Associates, Inc.,
460 U.S. 557 (1983), for example, the Court held that an antitrust statute
authorizing state attorneys general to obtain, “to the extent permitted by
law, any investigative files or other materials” relevant to an antitrust suit,
15 U.S.C. § 15f(a) (1976), did not supersede the limits of Rule 6(e). 460
U.S. at 565. The Court relied primarily on the statute’s use of the phrase
“to the extent permitted by law,” which it read to exclude from the stat-
ute’s scope any disclosures not authorized by Rule 6(e). Id. at 566–69.
But in response to the argument that such a reading would frustrate the
statute’s purpose by “severely limit[ing] the amount of additional disclo-
sure to state attorneys general” it made possible, id. at 572, the Court
further explained that because the rule of grand jury secrecy was “so
important, and so deeply-rooted in our traditions,” it would “not infer that

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Congress has exercised [the] power [to modify it] without affirmatively
expressing its intent to do so,” id. at 572–73.
The Court and this Office have since applied this clear statement rule to
Rule 6(e) information on multiple occasions. In Sells, discussed above,
the Court concluded that Department attorneys could not disclose grand
jury information for use in civil cases in part because “the long-es-
tablished policy” and “importan[ce]” of grand jury secrecy meant that,
“[i]n the absence of a clear indication in a statute or Rule,” the Court
“must always be reluctant to conclude that a breach of [grand jury] secre-
cy has been authorized.” 463 U.S. at 424–25 (internal quotation marks
omitted); see id. at 435 (refusing to adopt a “plausible” but broad con-
struction of exception (A)(i) in light of the policy of grand jury secrecy
and the Rule’s legislative history). And in our Rule 6(e) Intelligence
Community opinion, this Office concluded that section 104(a) of the
National Security Act, which granted the Director of Central Intelligence
access to “all intelligence related to the national security,” did not “over-
ride grand jury secrecy restrictions” because it did not “clearly manifest
an intent to reach grand jury information.” 21 Op. O.L.C. at 165 (empha-
sis added); see also Memorandum for Richard K. Willard, Assistant
Attorney General, Civil Division, from Samuel A. Alito, Jr., Deputy
Assistant Attorney General, Office of Legal Counsel, Re: Authority of the
FBI to Transfer Restricted Records to the National Archives and Records
Administration at 2 (Feb. 27, 1986) (“FBI NARA Memorandum”).
This Office has concluded that “a similar approach is appropriate” to
the protection of Title III information. Title III Intelligence Community,
24 Op. O.L.C. at 273. In our Title III Intelligence Community opinion, we
considered whether the same provision of the National Security Act ad-
dressed in our Rule 6(e) Intelligence Community opinion, section 104(a),
superseded Title III’s limits on the disclosure of the contents of electronic
communications. We reasoned that even though “Title III does not have
the historical roots of the grand jury secrecy rule,” we should be similarly
reluctant to conclude that Congress had abrogated Title III’s limits. Id.
This was so, we explained, because of the strong “privacy interests under-
lying” and reflected in Title III, and the “constitutional concerns” that
might be raised by permitting government entities to broadly disclose the
contents of intercepted communications between private parties. Id. at
272–73 (citing In re Application of Nat’l Broad. Co., 735 F.2d 51 (2d Cir.

71
 39 Op. O.L.C. 12 (2015)

1984)); see also Scott, 436 U.S. at 132 (noting that Berger and Katz “pro-
scribed” the “indiscriminate use of wire surveillance” (internal quotation
marks omitted)). We also observed that “[n]othing in the language of
section 104(a) . . . refers to Title III information,” and that “there is noth-
ing in the legislative history of that section that suggests that Congress
considered Title III information” in enacting that statute. Title III Intelli-
gence Community, 24 Op. O.L.C. at 272. We therefore advised that “in
the absence of at least some evidence that Congress intended to create a
new exception to Title III’s limits on disclosure,” section 104(a) of the
National Security Act should not be read to “permit otherwise prohibited
disclosure of Title III information to members of the intelligence commu-
nity.” Id. at 273. Likewise, facing an apparent conflict between Title III
and a statute authorizing the FBI to transfer records to the National Ar-
chives and Records Administration, we explained that because Title III,
like Rule 6(e), “enact[s] [a] strict rule[] of secrecy,” makes violations of
the rule a felony, and “protect[s] highly important privacy rights,” its
provisions had to “take precedence” over the statute governing transfers
to the National Archives, absent “evidence that Congress contemplated”
the transfer of Title III information to the Archives. FBI NARA Memo-
randum at 2.
We have not previously considered whether a similar clear statement
rule should apply to information protected by section 626 of FCRA. But
we have applied much the same clear statement rule to other highly sensi-
tive information, in addition to Title III and Rule 6(e) information, that
Congress has protected from disclosure through statutes that suggest a
special concern for privacy. For instance, we concluded in 1977 that “any
doubts” about Congress’s intent to permit disclosure of tax return infor-
mation “should be resolved in favor” of confidentiality, in light of the
“rigid safeguards” Congress set up in the statute and the strict penalties
that Congress imposed for unauthorized disclosure. Transfer of Watergate
Special Prosecution Task Force Records to the National Archives, 1 Op.
O.L.C. 216, 218–19 (1977) (“Transfer of Watergate Records”); see id. at
219 (advising that disclosure of such records would be lawful only if there
were “explicit legislative authorization”). Reaffirming this conclusion
in 1986, we explained that the reasons for applying a clear statement rule
to tax return information were “similar” to those underlying the rule for
Title III and Rule 6(e) information: the language of all three statutory

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regimes, together with their legislative history, “express[ed] a strong
congressional intent to maintain very strict privacy for such information.”
FBI NARA Memorandum at 1–2. Similarly, we have long concluded that
in light of “the federal government’s longstanding commitment to confi-
dentiality” of census information, and the “broad confidentiality protec-
tion[s]” that Congress enacted for such information, we must not infer
that a statute authorizes its disclosure unless “the evidence of congres-
sional intention compel[s] such a conclusion.” Census Confidentiality and
the PATRIOT Act, 34 Op. O.L.C. 1, 7, 12 (2010) (“Census Confidentiali-
ty”) (internal quotation marks omitted); see also Confidential Treatment
of Census Records, 40 Op. Att’y Gen. 326, 328 (1944); United States v.
Bethlehem Steel Corp., 21 F.R.D. 568, 572 (S.D.N.Y. 1958) (stating that
“the purpose to protect the privacy of [census] information . . . is so clear
and the public policy underlying the purpose so compelling” that authority
to abrogate that privacy should not be inferred “absent a clear Congres-
sional grant”).
In our view, the logic of these opinions, and of the prior opinions con-
cerning Rule 6(e) and Title III information, extends to section 626 of
FCRA. All of these opinions involved highly sensitive information with
respect to which Congress has “expressed a strong congressional intent to
maintain very strict privacy” in various ways, including through “strict”
or “rigid” rules of secrecy applicable to government officials, FBI NARA
Memorandum at 1–2; Transfer of Watergate Records, 1 Op. O.L.C. at
219; penalties for unauthorized disclosure, FBI NARA Memorandum at
2–3; Transfer of Watergate Records, 1 Op. O.L.C. at 218; and, in some
but not all circumstances, a “long-established policy” of confidentiality,
Sells, 463 U.S. at 424; see also Census Confidentiality, 34 Op. O.L.C. at
12; cf. Title III Intelligence Community, 24 Op. O.L.C. at 273 (noting that
“Title III does not have the historical roots of the grand jury secrecy
rule”). Further, “the privacy interests at stake” in these opinions were “not
primarily those of the government but of third parties, such as taxpayers
and grand jury witnesses,” whose rights the federal government has “a
duty to protect.” FBI NARA Memorandum at 3; accord Title III Intelli-
gence Community, 24 Op. O.L.C. at 273. As discussed above, section 626,
like Rule 6(e), Title III, and the statutes governing protection and disclo-
sure of tax return and census information, imposes a strict duty of confi-
dentiality, enforced by penalties for improper disclosure. See supra Part

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 39 Op. O.L.C. 12 (2015)

II.C; 15 U.S.C. § 1681u(f ), (i)–( j). Further, section 626 information, like
grand jury, Title III, tax return, and census information, is highly sensitive
information about private individuals rather than the government—
indeed, it is information that the government may have obtained without
the subject’s knowledge. See 15 U.S.C. § 1681u(d) (authorizing the FBI
to bar the provider of section 626 information, in certain circumstances,
from informing others about the disclosure). We thus think there is a
strong argument that the federal government has a similar “duty to protect
[the statutory privacy] rights” in section 626 unless “Congress’s command
is clear.” FBI NARA Memorandum at 3. See generally Sossamon v.
Texas, 131 S. Ct. 1651, 1661 (2011) (“‘[C]lear statement rules ensure
Congress does not, by broad or general language, legislate on a sensitive
topic inadvertently or without due deliberation.’” (alteration in original)
(quoting Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 139 (2005)
(plurality opinion))).
A second general principle, complementary to and often applied in con-
junction with the first, also informs our analysis. Where the Court and this
Office have faced apparent conflicts between two competing statutes, they
have frequently resolved the question by applying the “rule of relative
specificity.” This “cardinal axiom of statutory construction,” GAO Access
to Trade Secret Information, 12 Op. O.L.C. 181, 182 (1988) (“GAO
Access”), holds that “[w]here there is no clear [congressional] intention
otherwise, a specific statute will not be controlled or nullified by a general
one, regardless of the priority of enactment,” Mancari, 417 U.S. at 550–
51. Under this rule, if “a general permission or prohibition is contradicted
by a specific prohibition or permission,” then “the specific provision is
construed as an exception to the general one,” absent strong “textual
indications that point in the other direction.” RadLAX Gateway Hotel, 132
S. Ct. at 2071–72; see, e.g., Mancari, 417 U.S. at 535 (construing section
12 of the Indian Reorganization Act of 1934 as an exception to the Equal
Employment Opportunity Act of 1972). This rule ensures that congres-
sional commands are followed to the fullest extent possible, by giving
effect to the more focused or particularized expression of Congress’s will
on the particular question at hand.
Applying the rule of relative specificity, we have often concluded that
statutes barring the disclosure of particular types of information by partic-
ular entities, subject to particular exceptions, take precedence over stat-

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utes broadly entitling an entity to examine federal records. In our GAO
Access opinion, for instance, we determined that a statute prohibiting the
Food and Drug Administration from disclosing trade secrets except to
certain specified individuals and entities took precedence over 31 U.S.C.
§ 716(a), a statute providing that “[e]ach agency shall give the Comptrol-
ler General information [he] requires about the duties, powers, activities,
organization, and financial transactions of the agency.” See 12 Op. O.L.C.
at 182. “Since [the trade secrets statute] is a specific statute directly
addressing one executive branch agency’s handling of trade secret infor-
mation, while [the Comptroller General statute] is a general statute ad-
dressed to all kinds of information in possession of the executive branch,”
we reasoned, “[the trade secrets statute] controls in the absence of con-
gressional intent to the contrary.” Id. at 182–83. Applying the same rea-
soning, we later concluded that section 716(a) also had to give way to a
“specific provision” that restricted “which recipients” could obtain certain
employment information from the Department of Health and Human Serv-
ices “and under what circumstances.” GAO Access to National Directory
of New Hires, 35 Op. O.L.C. 106, 113 (2011). In yet another opinion, we
concluded that this principle required that a statute specifically regulating
“the disclosure of information received pursuant to” the National Traffic
and Motor Vehicle Safety Act “prevails over” the Federal Reports Act,
which “deals with . . . the general matter of the intragovernmental ex-
change of information.” Disclosure of Confidential Business Records
Obtained Under the National Traffic and Motor Vehicle Safety Act,
4B Op. O.L.C. 735, 736 (1980).
In other instances, we have concluded that the rule of relative specifici-
ty operates in tandem with the clear statement rule protecting highly
sensitive information about which Congress has expressed a special
concern for privacy. For instance, we have repeatedly stated that the rule
of relative specificity, in conjunction with the other clear statement rule
discussed above, favors the “subsequently enacted, more specific prohibi-
tion” on the disclosure of tax returns contained in 26 U.S.C. § 6103 over
the “general access provisions” permitting the Archivist of the United
States to obtain the records, including the confidential records, of any
federal agency. National Archives Access to Taxpayer Information, 21
Op. O.L.C. 92, 94–95 (1997). We reasoned that Congress had provided
that “tax returns and tax return information would be disclosed only under

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 39 Op. O.L.C. 12 (2015)

the carefully prescribed conditions set out in” section 6103, and thus that
it would be “unrealistic to assume that Congress intended (but neglected
to mention) that such materials would also be subject to disclosure under
the Archives provisions.” FBI NARA Memorandum at 2; see also Memo-
randum for Alice Daniel, Assistant Attorney General, Civil Division, from
Leon Ulman, Deputy Assistant Attorney General, Office of Legal Coun-
sel, Re: Applicability of the Non-Disclosure Provisions of the Tax Reform
Act (Nov. 7, 1980); Transfer of Watergate Records, 1 Op. O.L.C. at 218–
19. We have similarly relied on the rule of relative specificity to bolster
our conclusions that Congress would not, absent a clear statement, have
overridden the “specific” and “carefully delineated” schemes protecting
Rule 6(e), Title III, and census information through general statutes
providing broad access to large categories of information held by multiple
government agencies. FBI NARA Memorandum at 2; see Census Confi-
dentiality, 34 Op. O.L.C. at 15.
The rule of relative specificity, of course, does not always favor a with-
holding statute over an access statute. Sometimes we have deemed the
rule inapplicable because two competing statutes were comparably specif-
ic. In resolving a conflict between Rule 6(e)’s secrecy requirement and
the right of access under section 104(a) of the National Security Act, for
example, we found the rule inconclusive because both statutes dealt with
“narrow and specialized categories of information”—although we none-
theless found that Rule 6(e) prevailed over section 104(a) because of the
clear statement rule protecting highly sensitive information. Rule 6(e)
Intelligence Community, 21 Op. O.L.C. at 165 n.9; see also Gulf War
Veterans Health Statutes, 23 Op. O.L.C. 49, 52 (1999) (deeming the
canon inconclusive where “the two provisions are at the same order of
specificity”). In another circumstance, we concluded that the rule of
relative specificity was inconclusive in resolving a conflict between two
statutes because each was “more specific” in one respect but “less specif-
ic” in another. Restrictions on Travel by Voice of America Correspond-
ents, 23 Op. O.L.C. 192, 195 n.2 (1999).
Here, we believe the rule of relative specificity applies, and suggests
that the nondisclosure provisions in Title III, Rule 6(e), and section 626
should prevail over the general right of access contained in section 6(a)(1)
absent a clear indication of congressional intent to the contrary. Most
obviously, the withholding statutes address with greater specificity the

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type of information they regulate: where section 6(a)(1) directs agencies
to disclose “all records” and other materials within an inspector general’s
investigative jurisdiction, Title III, Rule 6(e), and section 626 address the
treatment of narrow and well-defined classes of information. See 18
U.S.C. § 2517 (“the contents of any [intercepted] wire, oral, or electronic
communication”); Fed. R. Crim. P. 6(e)(2)(B) (“a matter occurring before
the grand jury”); 15 U.S.C. § 1681u(a)–(c) (“the names and addresses of
all financial institutions . . . at which a consumer maintains or has main-
tained an account,” the consumer’s “name, address, former addresses,
places of employment, or former places of employment,” and “consumer
report[s]”). And, as we have explained above, see supra Part II, Congress
“carefully prescribed” the precise conditions under which disclosure of
Title III, Rule 6(e), and section 626 information would be lawful, FBI
NARA Memorandum at 2. This precise specification makes it “unrealis-
tic” to think that Congress would have intended to permit disclosure
outside of the conditions it prescribed, absent a clear indication of an
intent to do so. Id.; see Transfer of Watergate Records, 1 Op. O.L.C. at
218 (“The amount of attention that was paid to the formulation of the
exceptions would allow for an inference that no exception was intended as
to the Archives.”); see also Hinck v. United States, 550 U.S. 501, 506
(2007) (“[I]n most contexts, a precisely drawn, detailed statute pre-empts
more general remedies.” (internal quotation marks omitted)).
Section 6(a)(1) is arguably as specific as the withholding statutes with
respect to the lawful recipients of information: section 6(a)(1) grants
access only to particular identified individuals. However, the careful
prescriptions of the conditions for disclosure contained in the withhold-
ing statutes demonstrates that even in this respect, they are more specific
than section 6(a)(1). The withholding statutes specify not only the law-
ful recipients of Title III, Rule 6(e), and section 626 information, but
also the circumstances in which those recipients may obtain information.
Title III, for example, authorizes disclosure to investigative or law
enforcement officers only “to the extent that such disclosure is appropri-
ate to the proper performance of the official duties of the officer making
or receiving the disclosure,” 18 U.S.C. § 2517(1); Rule 6(e) authorizes
disclosure to an attorney for the government only “for use in performing
that attorney’s duty” to enforce federal criminal law, Fed. R. Crim. P.
6(e)(3)(A)(i); and section 626 authorizes the FBI to disclose covered

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 39 Op. O.L.C. 12 (2015)

information to other federal agencies only “as may be necessary for the
approval or conduct of a foreign counterintelligence investigation,”
15 U.S.C. § 1681u(f ). By contrast, section 6(a)(1) authorizes disclosure
to “the Inspector General,” but the IG Act is silent as to how an inspec-
tor general may use information he has obtained pursuant to section
6(a)(1), other than to set forth the general duties and responsibilities of
the office that implicitly constrain the use of such information. See, e.g.,
5 U.S.C. app. § 4; Burlington N. R.R. Co. v. Office of Inspector Gen.,
R.R. Retirement Bd., 983 F.2d 631, 641 (5th Cir. 1993) (“[A]n Inspector
General’s investigatory powers generally [do not] extend to matters that
do not concern fraud, inefficiency, or waste within a federal agency.”). 18
Accordingly, the rule of relative specificity applies here, and reinforces
the other clear statement principle discussed above. Just as that principle
requires a clear statement before we may conclude that Congress abrogat-
ed the confidentiality of Rule 6(e), Title III, or section 626 information, so
the rule of relative specificity requires a clear statement before we may
conclude that the general right of access granted by section 6(a)(1) takes
precedence over the specific, carefully delineated limits on disclosure
Congress set forth in those statutes. 19 It is not surprising that these rules

18 Even if the IG Act addressed the lawful recipients of information with the same de-

gree of specificity as Title III, Rule 6(e), and section 626, that fact alone would not render
the rule of relative specificity inapplicable. We have often applied the rule in comparable
circumstances. See, e.g., National Archives Access to Taxpayer Information, 21 Op.
O.L.C. at 94–95 (concluding that a specific statute regulating the disclosure of tax returns
takes precedence over a general statute granting the Archivist of the United States access
to the records of any federal agency); GAO Access, 12 Op. O.L.C. at 182–83 (concluding
that a “specific statute directly addressing one executive branch agency’s handling of
trade secret information” takes precedence over a “general statute addressed to [the
Comptroller General’s access to] all kinds of information in possession of the executive
branch”).
19 Although the timing of the enactment of conflicting statutes can sometimes be

relevant to their interpretation, see infra p. 96, that timing does not affect the applica-
bility of the principles discussed in the text to the statutes at issue here. This Office has
thought a clear statement was necessary to permit access both to information protected
by “long-established polic[ies]” of confidentiality, Sells, 463 U.S. at 424; see also
Census Confidentiality, 34 Op. O.L.C. at 12, and to information protected by statutes
enacted “subsequent” to the competing access provision, FBI NARA Memorandum
at 2. Likewise, the Supreme Court has held that “a more specific statute will be given
precedence over a more general one, regardless of their temporal sequence.” Busic v.
United States, 446 U.S. 398, 406 (1980). The clear statement rules we have discussed

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are mutually reinforcing. Ultimately, both stem from the commonsense
notion that where Congress has legislated with great care on a particular
subject—whether by establishing strict limits on the disclosure of infor-
mation it considers highly sensitive, or by creating a specific and detailed
statutory scheme—it is unlikely to have displaced the limits it imposed
through unclear or general language. As a result, the dispositive question
in resolving the conflict between section 6(a)(1) and these three withhold-
ing statutes is whether Congress clearly expressed an intention in the IG
Act to grant inspectors general access to information protected by Rule
6(e), Title III, or section 626 notwithstanding the limits those statutes
place on disclosure.

B.

With these principles in mind, we now consider whether section
6(a)(1) contains the kind of clear statement necessary to override the
withholding statutes’ limitations on disclosure. OIG contends that Con-
gress intended the IG Act to grant it “full and prompt access to infor-
mation obtained by [the Department] through the use of ” Title III, Rule
6, and section 626. OIG 2014 Memorandum at 9. In particular, OIG
argues that section 6(a)(1) grants it “affirmative and explicit authority” to
obtain those materials, and that the IG Act’s other provisions, structure,
and purpose indicate that that right of access is not subject to the limits
imposed by those withholding statutes. Id.; see OIG Supplemental Mem-
orandum at 11–15. OIG’s arguments are substantial. We conclude, how-
ever, that the IG Act does not provide the kind of clear indication of
congressional intent necessary to override the specific, carefully drawn
limitations in Title III, Rule 6(e), and section 626.
To begin, the text of the IG Act does not contain the sort of language
we have previously found sufficient to constitute a clear statement that
Congress intends to override more specific statutory provisions that pro-
tect sensitive information. The IG Act does not mention Title III or Rule
6(e), despite having been enacted after these statutes. Cf. Title III Intelli-
gence Community, 24 Op. O.L.C. at 272 (noting that “[n]othing in the
language of ” the general disclosure provision of the National Security Act

above thus apply equally to Rule 6(e) and Title III, which preceded section 6(a)(1), and
to section 626, which postdated it.

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 39 Op. O.L.C. 12 (2015)

“refers to Title III information,” despite having been added after Title III);
Census Confidentiality, 34 Op. O.L.C. at 9, 12 (noting that section 215
of the PATRIOT Act “contains no express and specific statement indicat-
ing an intention” to override the “well-established confidentiality protec-
tions set forth in the Census Act,” and “makes no reference to the census
or the Census Act”); Rule 6(e) Intelligence Community, 21 Op. O.L.C. at
165 (“Neither the text of section 104(a) [of the National Security Act] nor
its pertinent legislative history contains . . . an affirmative expression of
intent to override grand jury secrecy restrictions.”). Nor does the IG Act
contain general language addressing potential conflicts with other statuto-
ry confidentiality provisions, such as a statement that the inspector gen-
eral’s right of access shall apply “notwithstanding any other law” or
“notwithstanding any statutory prohibition on disclosure”—language that
might, at least in some circumstances, provide a clearer indication that the
general access language was supposed to override more specific statutory
protections of confidential information. 20 See, e.g., Brady Act Implemen-
tation Issues, 20 Op. O.L.C. 57, 62 (1996) (concluding that a Brady Act
provision permitting the Attorney General to obtain relevant information
from any department or agency “[n]otwithstanding any other law” permit-
ted access to information otherwise subject to restrictions in the Privacy
Act); Census Confidentiality, 34 Op. O.L.C. at 13 (noting that section 215
of the PATRIOT Act “contains no language” like “notwithstanding any
provision of law” (internal quotation marks omitted)). 21 Thus, while

20 Even a grant of access that includes a “notwithstanding any other provision of law”

clause might not, in all circumstances, overcome a conflicting, detailed statutory scheme
restricting the disclosure of information. Cf. United States v. Novak, 476 F.3d 1041, 1046
(9th Cir. 2007) (en banc) (“In examining specific statutes, we have not . . . always accord-
ed universal effect to the ‘notwithstanding’ language, standing alone. Instead, we have
determined the reach of each such ‘notwithstanding’ clause by taking into account the
whole of the statutory context in which it appears.” (citations omitted)).
21 Statutes containing such language are not unusual. See, e.g., Brady Handgun Vio-

lence Prevention Act, Pub. L. No. 103-159, § 103(e)(1), 107 Stat. 1536, 1542 (1993)
(“Notwithstanding any other law, the Attorney General may secure directly from any
department or agency of the United States such information . . . as is necessary to enable
the [National Instant Criminal Background Check System] to operate in accordance with
this section.”); 12 U.S.C. § 5226(a)(2)(C)(i) (“Notwithstanding any other provision of law
. . . the Comptroller General shall have access, upon request, to any information, data,
schedules, books, accounts, financial records, reports, files, electronic communications, or
other papers.”); 15 U.S.C. § 78g(f )(2) (“Notwithstanding any other provision of law . . .

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section 6(a) establishes a general right of access by inspectors general, it
does not expressly address the relative strength of that right compared to
other statutory restrictions on disclosure that would by their terms exclude
access by inspectors general—let alone clearly resolve that the general
right of access overrides the conflicting statutory provisions.
According to OIG, the IG Act’s command that agencies provide inspec-
tors general with unfettered access to information is nonetheless clear.
Section 6(a)(1), OIG observes, authorizes each inspector general “to have
access to all records” available to his agency and within his investigative
jurisdiction. OIG 2014 Memorandum at 8 (emphasis added). We recog-
nize that the word “all,” read literally, extends to every record available to
an agency, whether protected by a withholding statute or not. But the
Supreme Court has noted that “circumstances may counteract the effect of
expansive modifiers” like “all” or “any,” Ali v. Fed. Bureau of Prisons,
552 U.S. 214, 220 n.4 (2008), particularly in circumstances where a clear
statement rule applies. In Raygor v. Regents of University of Minnesota,
534 U.S. 533 (2002), for example, the Court considered whether a statute
granting federal district courts jurisdiction to hear “all other claims” that
are part of a case or controversy over which a district court has original
jurisdiction, 28 U.S.C. § 1367(a) (emphasis added), was sufficiently clear
to evince congressional intent to abrogate state sovereign immunity. The
Court concluded that, despite the facial breadth of the statute, it did not
confer jurisdiction on district courts to hear claims against states that did
not consent to be sued. “[E]ven though nothing in the statute expressly
exclude[d] such claims,” and the grant of jurisdiction was “facially broad”
enough to cover them, the Court found the statutory language “insuffi-
cient to constitute a clear statement of an intent to abrogate state sover-
eign immunity.” Raygor, 534 U.S. at 541–42; see also Blatchford v.
Native Vill. of Noatak & Circle Vill., 501 U.S. 775, 786 (1991) (conclud-
ing that 28 U.S.C. § 1362, which establishes federal jurisdiction over “all
civil actions” that satisfy the amount in controversy requirement (empha-
sis added), lacks the “clear legislative statement” necessary to override
state sovereign immunity).

the Attorney General shall provide the Commission and self-regulatory organizations
designated by the Commission with access to all criminal history record information.”).

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 39 Op. O.L.C. 12 (2015)

Even more directly relevant, this Office has concluded that broad, gen-
eral terms like “all” and “any” do not provide the clear statement of
congressional intent needed to override specific, detailed statutory limita-
tions or prohibitions on the disclosure of sensitive information about
which Congress has expressed a special concern for privacy. In our Rule
6(e) Intelligence Community opinion, for example, we determined that a
statute much like the IG Act, which granted the Director of Central Intel-
ligence “access to all intelligence related to national security,” did not
“clearly manifest an intent to reach grand jury information.” 21 Op.
O.L.C. at 165 (emphasis added). Although we acknowledged that “the
‘intelligence’ covered by the statute could reasonably be interpreted to
encompass certain kinds of grand jury information,” we thought that
“[t]he most that may be said about [the statute’s] text in this regard is that
it is unclear on the point.” Id. at 165–66. We later concluded that the same
statute—despite the word “all”—did not authorize unrestricted disclosure
of Title III information to the Director of Central Intelligence. See Title III
Intelligence Community, 24 Op. O.L.C. at 272–73. And in our Census
Confidentiality opinion, we concluded that a section of the Patriot Act au-
thorizing the FBI to obtain “‘any tangible things . . . for an investigation
to obtain foreign intelligence information’” was not sufficiently clear to
overcome the presumption of confidentiality for census information.
Census Confidentiality, 34 Op. O.L.C. at 6, 9 (emphasis added); see also
Confidential Treatment of Census Records, 40 Op. Att’y Gen. at 327–28
(concluding that a statute granting the Archivist of the United States the
“authority to make regulations for the arrangement, custody, use, and
withdrawal of material” requisitioned for deposit in the National Archives
building, and repealing “[a]ll Acts or parts” inconsistent with this authori-
ty, did not contain the “very clear language” necessary to abrogate the
statutory provisions governing confidential treatment of census records
(emphasis added)). Thus, the word “all,” on its own, does not provide the
clear statement necessary to reach Title III, Rule 6(e), and section 626
information.
OIG further argues that Congress’s intent to grant it access to statutori-
ly protected information under section 6(a)(1) is made apparent by a neg-
ative implication from sections 6(a)(3) and 6(b)(1) of the IG Act. Whereas
section 6(a)(1) grants inspectors general access to materials within the
agencies they help oversee, section 6(a)(3) of the Act authorizes them to

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“request . . . information or assistance . . . from any Federal, State, or
local governmental agency or unit thereof.” 5 U.S.C. app. § 6(a)(3) (em-
phasis added). Section 6(b)(1) qualifies this latter authorization by provid-
ing:
Upon request of an Inspector General for information or assistance
under subsection (a)(3), the head of any Federal agency involved
shall, insofar as is practicable and not in contravention of any exist-
ing statutory restriction or regulation of the Federal agency from
which the information is requested, furnish to such Inspector Gen-
eral, or to an authorized designee, such information or assistance.
Id. § 6(b)(1) (emphasis added). Section 6(b)(1) thus makes explicit that
the obligation of another agency to respond to an inspector general’s
request for information under section 6(a)(3) is subject to, among other
things, “existing statutory restriction[s].” But neither section 6(b)(1) nor
any other provision in section 6 imposes a similarly express limitation
on the right of access under section 6(a)(1). OIG argues that this omis-
sion was intentional, and coupled with the inclusion of the express
limitation in section 6(b)(1), implies that Congress intended access
under section 6(a)(1) to be “automatic” and free of any “existing statuto-
ry restriction[s].” OIG Supplemental Memorandum at 12–13.
OIG’s argument is “admittedly a plausible one,” Sells, 463 U.S. at 435,
and in a different interpretive context, it might prevail. But as we have
discussed, before concluding that a general access provision abrogates
detailed, specific statutory provisions that restrict disclosure of sensitive
information, both this Office and the courts have required a clear and
express statement to that effect. And despite its plausibility, the inference
OIG would draw from section 6(b)(1) is simply that: an inference. It is not
a clear statement that plainly and unambiguously indicates that Congress
intended the general access provision in section 6(a)(1) to trump more
specific provisions that protect highly sensitive information. See, e.g.,
Fernandez-Vargas v. Gonzalez, 548 U.S. 30, 41 (2006) (stating that a
“negative inference” from the absence of express language, found else-
where in the same statute, that a particular provision was intended to
apply only prospectively would not constitute a “clear statement” of intent
to apply the provision retroactively).

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 39 Op. O.L.C. 12 (2015)

Moreover, even if a negative inference could, in some circumstances,
be unequivocal enough to establish a clear manifestation of congressional
intent, the inference OIG invokes would not in our view satisfy that high
standard. For one thing, the inference “‘that the presence of a phrase in
one provision and its absence in another reveals Congress’s design . . .
grows weaker with each difference in the formulation of the provisions
under inspection.’” Clay v. United States, 537 U.S. 522, 532 (2003)
(quoting City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536
U.S. 424, 435–36 (2002)). And here, section 6(b)(1) differs from section
6(a)(1) in at least two significant ways. First, section 6(b)(1) is structured
as an adjunct to a separate provision, section 6(a)(3), that allows an in-
spector general to “request” particular items from an agency other than his
own. Because section 6(a)(3) establishes only an inspector general’s right
to request materials from outside his agency, Congress required an addi-
tional provision, section 6(b)(1), to specify the scope of other agencies’
obligations to “furnish” the requested material to an inspector general.
Section 6(a)(1), in contrast, is not part of a similar bifurcated structure,
but rather—by giving an inspector general a right of “access” to certain
materials—establishes both an inspector general’s right to receive and, by
implication, the agency’s obligation to provide relevant material. Thus,
unlike in the case of section 6(a)(3), Congress had no need to say any-
thing in subsection (b)(1) about the scope of an agency’s obligation to
comply with an inspector general’s attempt to obtain materials under
section 6(a)(1). See Ours Garage, 536 U.S. at 434 (concluding that,
because of significant differences in the formulation of certain related
statutory provisions, any negative inference arising from the inclusion in
one provision of a phrase omitted from the other was insufficient to con-
stitute a “clear and manifest indication” of congressional intent).
Second, as the text of section 6(b)(1) makes clear, Congress chose to
impose several limitations on an inspector general’s right to obtain infor-
mation from outside his agency, including that outside agencies need only
provide the requested information “insofar as is practicable” and to the
extent permitted by “existing . . . regulation[s].” 5 U.S.C. app. § 6(b)(1).
Those limitations, because they do not themselves have a statutory basis,
would not obviously have applied unless Congress imposed them express-
ly. But having done so, Congress may have felt compelled to add “exist-
ing statutory restriction[s]” to the list of limitations in order to dispel any

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inference that it did not intend those restrictions to apply as well. In
contrast, Congress chose not to make an inspector general’s right of
access under section 6(a)(1) subject to any similar restrictions with a
non-statutory source. It therefore had no similar need to expressly refer
to “existing statutory restriction[s]” when drafting that provision. See
Gomez-Perez v. Potter, 553 U.S. 474, 486–88 (2008) (declining to draw a
negative inference from the omission of an express prohibition on retalia-
tion in one section of the Age Discrimination in Employment Act and its
inclusion in another, where the second section set out “a specific list of
forbidden employer practices,” and the inclusion of retaliation among
them may have been necessary to “dispel any . . . inference” that “Con-
gress did not want to reach retaliation”).
OIG’s inference is further clouded by the text of section 6(b)(2) of the
IG Act, which provides that an inspector general shall report to Congress
if “information or assistance requested under subsection (a)(1) or (a)(3) is,
in the judgment of [the] Inspector General, unreasonably refused or not
provided.” 5 U.S.C. app. § 6(b)(2) (emphasis added). This subsection
suggests that it is possible to “reasonably” refuse to grant an inspector
general access to materials under subsection (a)(1). And if access can
“reasonably” be refused under subsection (a)(1), then that provision
cannot provide the unfettered and absolute right to information asserted
by OIG. To be sure, it is also possible to read subsection (b)(2) to mean
that any information refused under subsection (a)(1) is necessarily refused
“unreasonably,” given the broad right of access provided by that subsec-
tion. But subsection (b)(2) is not clear on this point, and it can be read to
suggest that subsection (a)(1) has an implicit exception, consistent with
the principles of statutory interpretation discussed above, for specific
statutory schemes protecting highly sensitive information.
Read together, then, we do not believe the various provisions of sec-
tion 6 contain the kind of clear statement necessary to overcome the
carefully drawn limitations on disclosure of highly sensitive information
found in Title III, Rule 6(e), and section 626. And to the extent that those
provisions create any ambiguity, the IG Act’s legislative history affirma-
tively suggests that Congress intended to subject inspector general access
under section 6(a)(1) to applicable statutory restrictions. In particular, the
Senate Report accompanying the IG Act flatly states that section 6(a) is “a
broad mandate permitting the Inspector . . . General the access he needs to

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do an effective job subject, of course, to the provisions of other statutes,
such as the Privacy Act.” S. Rep. No. 95-1071, at 33–34 (1978) (emphasis
added). In addition, a version of the bill initially passed by the House of
Representatives would have expressly granted inspectors general access to
records notwithstanding certain limitations of the Privacy Act (a clarifica-
tion that would, incidentally, have been superfluous had the House be-
lieved that section 6(a)(1) already exempted inspectors general from all
statutory limits on disclosure). See H.R. 8588, 95th Cong. § 5(b)(3) (as
passed by the House of Representatives, Apr. 18, 1978). 22 The Senate
removed that provision from the final version of the bill because, the
Senate Committee Report explained, the House’s language would have
granted inspectors general “a power that no other official of the executive
branch has—the authority to require the transfer of personal information
from any agency . . . without regard for the protections of the Privacy
Act.” S. Rep. No. 95-1071, at 13. Removing the provision, the Report
stated, “does not mean that an Inspector . . . General will be unable to
obtain needed information to perform his responsibilities. It simply means
that the information must be obtained in conformity with the exemptions
and procedures of the [Privacy Act].” Id. (emphasis added). The Report
explained that this would not be difficult, because “all information within
the agency would be available to the Inspector . . . General, based on the
‘intra-agency’ exemption” included in the Privacy Act itself. Id. (empha-
sis added). This language strongly suggests that, at least in the Commit-
tee’s view, inspectors general would remain subject to other statutory
requirements, including statutory restrictions on use and disclosure, when
seeking access under section 6(a)(1), and further undermines the notion

22 This draft provided:
In the event any record or other information requested by the Inspector General
under subsection (a)(1) or (a)(3) is not considered to be available under the provi-
sions of section 552a(b) (1), (3), or (7) of title 5, United States Code, such record
or information shall be available to the Inspector General in the same manner and
to the same extent it would be available to the Comptroller General.
H.R. 8588, § 5(b)(3). The “subsection[s] (a)(1) [and] (a)(3)” referred to in this provision
of the House bill are identical to those currently found at sections 6(a)(1) and 6(a)(3) of
the IG Act as enacted. Compare id. § 5(a)(1), (3), with 5 U.S.C. app. § 6(a)(1), (3). Title
5, section 552a is the Privacy Act, which (then as now) expressly exempted the Comp-
troller General from the Privacy Act’s general prohibition on the disclosure of covered
information. See 5 U.S.C. § 552a(b)(10).

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that Congress intended to grant access to Rule 6(e), Title III, and section
626 information without regard to the limitations set forth in those stat-
utes. 23
OIG also invokes a later-enacted IG Act provision specific to the De-
partment—current section 8E—to support its reading of section 6(a)(1).
As we have noted, this section, among other things, authorizes the Attor-
ney General to withhold records from OIG, or otherwise direct and super-
vise an OIG investigation, if she determines that doing so would be “nec-
essary to prevent the disclosure of ” certain sensitive information—such as
“sensitive information concerning . . . ongoing civil or criminal investiga-
tions” or “the identity of confidential sources”—“or to prevent the signifi-
cant impairment to the national interests of the United States.” 5 U.S.C.
app. § 8E(a)(1), (2). It further provides that if the Attorney General exer-
cises such authority, she must “notify the Inspector General in writing
stating the reasons for such exercise,” and that OIG must transmit a copy
of that notice to appropriate committees in Congress. Id. § 8E(a)(3). OIG
argues that the “exacting procedures” imposed by this provision, as well
as its historically “infrequent use,” confirm that section 8E represents an
“extraordinary departure from the baseline rule, established by section 6,
that the Inspectors General enjoy access to documents and materials,” and
demonstrates that only in the specific circumstances set out in section 8E
may the Attorney General withhold requested records. OIG Supplemental
Memorandum at 18; see OIG 2014 Memorandum at 8–9.

23 OIG responds to this argument by contending that “the phrase ‘subject . . . to’” in the
Senate Report “does not necessarily mean that [an inspector general’s] right of access to
documents and materials is restricted by general statutory or regulatory limitations on the
disclosure of those materials; it is just as plausible to read ‘subject . . . to’ to mean that,
when using the materials they access, the IGs are not exempt from any statutory and
regulatory limitations on disclosure.” OIG Supplemental Memorandum at 15. But the
quoted passage from the Senate Report is not addressed to an inspector general’s use of
information; rather, it specifically addresses access to information, and is contained in a
section of the Senate Report discussing the right of access provided by section 6(a). See
S. Rep. No. 95-1071, at 33–34. Moreover, the Report separately makes the same point
when discussing limitations on disclosure. See id. at 32 (“[T]he Inspector . . . General
must adhere to statutes such as 26 U.S.C. § 6013 [sic], dealing with tax returns, or Federal
Rule of Criminal Procedure 6(e), dealing with grand jury information, which prohibit
disclosure even to Congress.”). In addition, OIG’s argument does not address the Report’s
multi-page discussion of the Privacy Act exception and the effect of its omission from the
bill that ultimately became the IG Act.

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 39 Op. O.L.C. 12 (2015)

We disagree. For one thing, section 6(a)(1) was enacted in 1978 as part
of the original IG Act, while section 8E, like the special provisions appli-
cable to other departments and agencies, was added to the statute years
later. 24 The negative inference that OIG seeks to draw from the inclusion
of certain heightened procedures in section 8E is therefore attenuated. See
Gomez-Perez, 553 U.S. at 486 (“‘[N]egative implications raised by dis-
parate provisions are strongest’ in those instances in which the relevant
statutory provisions were ‘considered simultaneously when the language
raising the implication was inserted.’” (alteration in original) (quoting
Lindh v. Murphy, 521 U.S. 320, 330 (1997))). In any event, that inference
is unconvincing on its own terms. Section 8E does not authorize the
Attorney General to withhold only those records protected from disclo-
sure by statute. Indeed, many of the records that the Attorney General
may withhold under that section are not entitled to protection under any
statute. For example, “information concerning . . . ongoing civil or crimi-
nal investigations” or “the identity of confidential sources,” 5 U.S.C. app.
§ 8E(a)(1)(A), (C), would be protected by Rule 6(e) only if the investiga-
tion were criminal and had reached the grand jury stage. Conversely,
much information that is protected by statute may not be subject to with-
holding under section 8E, such as Title III information that is not perti-
nent to an ongoing civil or criminal investigation or any other sensitive
matter described in that section. Section 8E thus does not merely dupli-
cate the protections afforded by Title III, Rule 6(e), or section 626; it
grants the Attorney General authority over disclosures that is in some
respects broader, and in some respects narrower, than the requirements of
those provisions, and thus serves a distinct purpose.
Finally, in addition to these arguments based on the Act’s text and
structure, OIG appeals to the general purposes of the IG Act. This statute
was intended, OIG explains, to grant inspectors general a broad right of

24 In addition to section 8E, which applies to the Department, sections 8 through 8I of
the IG Act contain special provisions relating to the Department of Defense (section 8),
the Agency for International Development (section 8A), the Nuclear Regulatory Com-
mission (section 8B), the Federal Deposit Insurance Corporation (section 8C), the
Department of the Treasury (section 8D), the Corporation for National and Community
Service (section 8F), certain federal entities (section 8G), Inspectors General of the
Intelligence Community (section 8H), and the Department of Homeland Security (sec-
tion 8I). See 5 U.S.C. app. §§ 8–8I.

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access to agency materials, including records containing sensitive infor-
mation, so that they could conduct meaningful reviews of programs
within their jurisdiction. See OIG Supplemental Memorandum at 12, 14–
15. OIG points out, for instance, that the Act’s Senate Report character-
izes section 6(a) as a “‘broad mandate’” and describes such access as
“‘obviously crucial.’” Id. at 16 (quoting S. Rep. No. 95-1071, at 33–34);
see also, e.g., H.R. Rep. No. 95-584, at 14 (stating that the access provi-
sion “makes clear that each Inspector General is to have access to all
records, documents, et cetera, available to his or her agency which relate
to programs and operations with respect to which the office has responsi-
bilities”). OIG argues that this goal would be undermined by a construc-
tion of the statute that prohibited it from obtaining materials protected by
Title III, Rule 6(e), and section 626.
We agree that Congress intended to grant each inspector general a
broad right of access, and we do not doubt that such a right of access is
crucial to enabling OIG to fulfill its statutory mission. But this kind of
general congressional intent does not resolve the specific question at issue
here: whether Congress clearly expressed an intention that the inspector
general’s “broad mandate” in section 6(a)(1) supersede the limits on
disclosure contained in Title III, Rule 6(e), and section 626. As we have
noted, the IG Act’s text contains no such expression of intent, and the
Act’s legislative history affirmatively indicates that Congress did not
intend to grant that kind of unlimited access to inspectors general. Moreo-
ver, in the same Report in which the Senate Committee described the
“broad mandate” found in section 6(a)(1)—indeed, in the same sen-
tence—it also stated that an inspector general’s access would be “subject,
of course, to the provisions of other statutes, such as the Privacy Act.”
S. Rep. No. 95-1071, at 33–34; see also id. at 13–14. 25 It thus appears
Congress did not believe (let alone clearly indicate) that the broad right of

25 The full passage reads:
Access to all relevant documents available to the applicable [agency] relating to
programs and operations for which the Inspector and Auditor General has respon-
sibilities is obviously crucial. The committee intends this subsection to be a broad
mandate permitting the Inspector and Auditor General the access he needs to do an
effective job, subject, of course, to the provisions of other statutes, such as the
Privacy Act.
S. Rep. No. 95-1071, at 33–34.

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 39 Op. O.L.C. 12 (2015)

access it was giving each inspector general was inconsistent with requir-
ing compliance with specific statutory regimes that protect highly sensi-
tive information.
In sum, neither the text of the IG Act, nor its legislative history, nor its
general purpose offers a clear indication that Congress intended to over-
ride the separate statutory confidentiality requirements applicable to Title
III, Rule 6(e), and section 626 information. As a result, under both the
principle requiring that a statute contain a clear statement in order to
abrogate protections of highly sensitive information, and the rule of
relative specificity, OIG remains subject to the limitations imposed by
Title III, Rule 6(e), and section 626. The Department therefore may not
disclose information covered by those statutes except in accordance with
their provisions. 26

IV.

We have also considered whether a recent appropriations rider grants
OIG access to information it could otherwise not obtain under Title III,
Rule 6(e), or section 626. Section 218 of the Consolidated and Further
Continuing Appropriations Act, 2015, Pub. L. No. 113-235, 128 Stat.
2130, 2200 (2014), provides:
No funds provided in this Act shall be used to deny the Inspector
General of the Department of Justice timely access to all records,
documents, and other materials in the custody or possession of the
Department or to prevent or impede the Inspector General’s access
to such records, documents and other materials, unless in accordance
with an express limitation of section 6(a) of the Inspector General
Act, as amended, consistent with the plain language of the Inspector
General Act, as amended. The Inspector General of the Department

26 We express no view about whether inspectors general have a right to obtain infor-
mation protected from disclosure by provisions other than Title III, Rule 6(e), and section
626. Resolution of that issue would depend on whether those other statutes protected
highly sensitive information about which Congress has “expressed a strong congressional
intent to maintain very strict privacy,” FBI NARA Memorandum at 1–2, whether those
statutes regulated the treatment of covered information with greater specificity than the IG
Act, and whether the IG Act or some other relevant statute contained a clear statement
authorizing disclosure of the information to inspectors general.

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of Justice shall report to the Committees on Appropriations within
five calendar days any failures to comply with this requirement.
This rider permits the Department to expend Fiscal Year 2015 funds to
withhold records from OIG only where doing so would be “in accordance
with an express limitation of section 6(a) of ” the IG Act, “consistent with
the plain language of ” that Act. It also imposes two other legal require-
ments for the remainder of Fiscal Year 2015 that are not already express-
ly set forth in the IG Act. First, it bars the Department from using appro-
priated funds to deny—and so effectively obligates the Department to
grant—OIG access to records in a “timely” manner, a matter on which
the text of the IG Act is silent. And, second, it imposes on OIG an obli-
gation to report failures to comply with these requirements to the con-
gressional appropriations committees within five calendar days. Obliga-
tion or expenditure of funds contrary to the terms of the rider would
violate the Anti-Deficiency Act, 31 U.S.C. § 1341 et seq., a statute that
subjects federal officials obligating or expending funds in advance or in
excess of appropriations to administrative penalties, and to criminal
penalties in the case of knowing and willful violations, id. §§ 1341(a),
1349(a), 1350.
OIG contends that, for two independent reasons, section 218 affirms its
right to obtain Title III, Rule 6(e), and section 626 information notwith-
standing the disclosure limitations in those statutes. First, according to
OIG, section 218 reflects a congressional understanding that section
6(a)(1) of the IG Act requires the Department to disclose all relevant
materials to OIG. “The passage of [section 218],” OIG argues, “serves as
a reaffirmation of clear congressional intent, originally manifested in
section 6(a) . . . that the OIG is entitled to access to ‘all records, reports,
audits, reviews, documents, papers, recommendations, or other material
available to’ the Department.” OIG 2015 E-mail; see OIG 2014 Memo-
randum at 4. Second, regardless of the correct interpretation of section
6(a)(1), OIG argues that section 218 independently and “unequivocal[ly]”
requires the Department to disclose to OIG all information it requests,
unless the Department withholds that information pursuant to a provision,
such as section 8E, that expressly limits the right of access granted by the
IG Act. OIG 2015 E-mail; see The Department of Justice Office of the
Inspector General’s Fiscal Year 2016 Budget Request: Hearing Before

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 39 Op. O.L.C. 12 (2015)

the Subcomm. on Commerce, Justice, Sci. & Related Agencies of the H.
Comm. on Appropriations, 114th Cong. 9–10 (2015) (statement of Mi-
chael E. Horowitz, Inspector Gen., Dep’t of Justice). Because neither Title
III nor Rule 6(e) nor section 626 expressly addresses disclosures under the
IG Act, the rider (in OIG’s view) prohibits the Department from expend-
ing Fiscal Year 2015 appropriated funds to withhold Title III, Rule 6(e),
or section 626 materials from OIG. See OIG 2015 E-mail.
Although OIG’s arguments are again substantial, we ultimately disa-
gree that section 218 grants OIG access to information otherwise protect-
ed by Title III, Rule 6(e), and section 626. With respect to OIG’s first
argument, we have already concluded, for the reasons set forth in Part III
above, that the IG Act lacks the clear statement of congressional intent
necessary to override the detailed and specific statutory disclosure prohi-
bitions set forth in Title III, Rule 6(e), and section 626. In order to alter
this conclusion about the IG Act’s meaning, section 218 would need to
contain a clear statement indicating that section 6(a)(1) should be inter-
preted to override those statutory limitations on disclosure. But it is not
clear that section 218 contains any instruction about how the IG Act
should be interpreted: it does not expressly declare the Act’s meaning,
amend the Act to clarify its terms, or depend for its effectiveness on a
particular interpretation of the IG Act. See Almendarez-Torres v. United
States, 523 U.S. 224, 237 (1998) (concluding that a later-enacted law that
lacks these features, or any other “forward looking legislative mandate,
guidance, or direct suggestion about how [to] interpret [an] earlier provi-
sion[],” is “beside the point” in interpreting that provision). It is possible
that Congress intended—by providing that the Department may not ex-
pend Fiscal Year 2015 funds to withhold information from OIG “unless in
accordance with an express limitation of section 6(a) of the [IG Act],
consistent with the plain language of the [Act]”—to convey its under-
standing of what the “plain language” of the IG Act means. But this
inference, itself far from clear, would merely raise the question of what
qualifies as “an express limitation of section 6(a),” a phrase that is in turn
subject to various interpretations. Given these multiple layers of uncer-
tainty, section 218 does not provide a clear statement that the IG Act
should be interpreted to override the limitations on disclosure contained in
Title III, Rule 6(e), and section 626.

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We also disagree that, considered on its own, the rider contains a clear
statement of Congress’s intent to override those limitations on disclosure.
As noted above, section 218 permits Department officials to deny materi-
als to OIG “in accordance with an express limitation of section 6(a) of the
Inspector General Act, as amended, consistent with the plain language of
the [Act], as amended.” In our view, there are at least three conceivable
constructions of the phrase “express limitation of section 6(a) of the
Inspector General Act.” First, it could be interpreted to encompass only
those limitations on disclosure that either appear in section 6(a) itself or
expressly refer to that section. Second, it could be interpreted to encom-
pass only those limitations on disclosure that are specifically directed at
disclosures to OIG under the IG Act, whether or not they explicitly refer
to section 6(a). Third, it could be interpreted to encompass all “express”
limitations on disclosure that, when considered in conjunction with sec-
tion 6(a), are properly deemed to function as “limitation[s] of section
6(a).” For the reasons discussed below, we believe that the first interpreta-
tion is not plausible, but that the second and third interpretations are. And
because the third interpretation would allow the Department to continue to
withhold materials from OIG to the extent required under the terms of
Title III, Rule 6(e), and section 626, section 218 does not in our view
constitute the sort of clear statement of congressional intent necessary to
override those nondisclosure provisions.
Under the first potential interpretation of the rider, Department offi-
cials would be prohibited from denying OIG access to documents and
other materials except pursuant to a “limitation of section 6(a)” that
“express[ly]” referred to (or was contained in) section 6(a) itself. This is
a natural reading of section 218’s text. However, if this reading were
correct, section 218 would prohibit Department officials from withhold-
ing records from OIG not only under Title III, Rule 6(e), and section 626,
but also under section 8E of the IG Act: while section 8E plainly author-
izes the withholding of certain records otherwise accessible under section
6(a), it does not refer explicitly to section 6(a). Section 218 does not
expressly state that it was intended to partially repeal section 8E of the
IG Act, and in our view, it is implausible to construe it as having done so
implicitly. See infra p. 96 (discussing strong presumption against implied
repeals in appropriations acts). Moreover, such a reading would be in-
consistent, rather than “consistent,” with the “plain language of ” other

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parts of the IG Act, and thus would fail to make sense of section 218 as a
whole. See, e.g., Food & Drug Admin. v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 133 (2000) (“A court must . . . interpret the statute
as a symmetrical and coherent regulatory scheme and fit, if possible, all
parts into an harmonious whole.” (citations and internal quotation marks
omitted)). It is thus unsurprising that OIG does not advance this reading.
See OIG 2015 E-mail (stating that section 8E is an “express limitation”
within the meaning of section 218).
Under the second potential interpretation, an “express limitation of sec-
tion 6(a)” would be one that expressly referred to disclosures to OIG,
although not specifically to section 6(a). On this reading, Department
officials could withhold information under section 8E, which expressly
addresses disclosures to OIG. See 5 U.S.C. app. § 8E. But they would be
foreclosed from withholding information from OIG pursuant to Title III,
Rule 6(e), and section 626, because these provisions contain no express
reference to OIG. This is not the most natural reading of section 218’s
text: the phrase “in accordance with an express limitation of section 6(a)
of the [IG Act]” is not easily read to mean “in accordance with a limita-
tion that expressly addresses disclosures to OIG under the IG Act.”
Nonetheless, given that section 6(a) is the principal provision in the IG
Act that governs disclosures to OIG, we believe this reading is permissi-
ble. Further, while the Explanatory Statement and Senate Report accom-
panying section 218 do not specifically endorse this interpretation, it
arguably gains plausibility from the fact that, as OIG observes, the De-
partment’s Inspector General testified before the relevant Senate appro-
priations subcommittee several months before the rider was enacted,
objecting to the Department’s failure to grant OIG direct access to materi-
als protected by Title III, Rule 6(e), and section 626. See The Department
of Justice’s Fiscal Year 2015 Budget Request: Hearing Before the Sub-
comm. on Commerce, Justice, Sci. & Related Agencies of the S. Comm. on
Appropriations, 113th Cong. 7–8 (2014) (statement of Michael E. Horo-
witz, Inspector Gen., Dep’t of Justice). But see Regan v. Wald, 468 U.S.
222, 237 (1984) (expressing “grave doubts” about the interpretive value
of “[o]ral testimony of witnesses and individual Congressmen, unless very
precisely directed to the intended meaning of particular words in a stat-
ute”).

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Under the third potential interpretation of the rider, an “express limita-
tion of section 6(a)” would include any explicit statutory nondisclosure
provision that, properly construed, operated to prevent disclosure of
material that OIG could otherwise obtain under section 6(a). This read-
ing of section 218 would permit withholding not only pursuant to section
8E, but also pursuant to Title III, Rule 6(e), and section 626. The reading
is reasonably grounded in statutory text. Statutes like Title III, Rule 6(e),
and section 626 can be considered “limitations of section 6(a)” in that
they supersede section 6(a) in situations where both section 6(a) and one
of those statutes would apply. See supra Part III.B. They can be consid-
ered “express” limitations, in that they explicitly contemplate, in statutory
text, nondisclosure in the circumstances they address. And for the reasons
we have explained above, reading these statutory provisions to limit
disclosures under section 6(a)(1) is “consistent with the plain language
of ” the IG Act, as construed using standard tools of statutory interpreta-
tion. See supra Part III.B.
In our view, although both the second and third interpretations of sec-
tion 218 are plausible, the third is more appropriate in light of the relevant
principles of statutory interpretation. As discussed in Part III above, in
order to override the specific withholding provisions in Title III, Rule
6(e), and section 626, section 218 would need to contain a clear congres-
sional statement that it was intended to have that effect. OIG appears to
contend that the phrase “unless in accordance with an express limitation
of section 6(a) of the [IG Act], consistent with the plain language of the
[Act],” clearly means that all materials must be disclosed to OIG absent
express language establishing that the materials need not be turned over.
But as we have discussed, this interpretation requires reading unstated
limitations into the rider’s text, since (as OIG concedes) section 218’s
reference to an “express limitation of section 6(a)” encompasses section
8E, a limitation that does not expressly refer to section 6(a). Moreover, as
was also noted above, this phrase may plausibly be read to permit De-
partment officials to withhold Title III, Rule 6(e), and section 626 infor-
mation if OIG does not qualify to receive it under one of those statutes’
exemptions. Because the phrase is susceptible to alternative interpreta-
tions, one of which would permit withholding under Title III, Rule 6(e),
and section 626, it does not constitute a sufficiently clear statement to

95
 39 Op. O.L.C. 12 (2015)

override the limitations on disclosure imposed by those statutes. See supra
Part III.
Furthermore, it is significant that section 218 appears in an appropria-
tions act that post-dates the provisions in Title III, Rule 6(e), and section
626 of FCRA. The Supreme Court has long held that a later statute will
not be read to repeal an earlier one, even in part, unless Congress’s
intent to repeal the earlier statute with the later one is “clear and mani-
fest.” Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S.
644, 662–63 (2007) (internal quotation marks omitted); see Tenn. Valley
Auth. v. Hill, 437 U.S. 153, 189 (1978) (refusing to read an appropria-
tions act as overriding the Endangered Species Act “insofar as it applies
to the Tellico Project” absent “‘clear and manifest’” evidence); Posadas
v. Nat’l City Bank of N.Y., 296 U.S. 497, 501, 504 (1936) (declining to
read a statute as overriding the Federal Reserve Act of 1913 “in so far as
the Philippine Islands are concerned” unless such a reading was a “nec-
essary” implication). This principle applies “with even greater force
when the claimed repeal rests solely on an Appropriations Act,” because
“legislators are entitled to operate under the assumption that the funds
will be devoted to purposes which are lawful and not for any purpose
forbidden,” and because Congress’s own rules “expressly prohibit[]”
substantive changes to existing law in appropriations bills. Hill, 437
U.S. at 190–91; see Rules of the House of Representatives, 114th Cong.,
R. XXI(2)(b) (2011) (“A provision changing existing law may not be
reported in a general appropriation bill[.]”). Accordingly, there is a
“very strong presumption” that appropriations measures do not “amend
substantive law,” a presumption that may be overcome only by “unam-
biguous[]” evidence to the contrary. Calloway v. Dist. of Columbia, 216
F.3d 1, 9 (D.C. Cir. 2000).
We do not believe this presumption is overcome with respect to section
218. The rider’s text does not mention Title III, Rule 6(e), or section 626,
nor does it state that the provision is intended to amend existing statutes
in any way. Cf. Am. Fed’n of Gov’t Emps., AFL-CIO v. Campbell, 659
F.2d 157, 161 (D.C. Cir. 1980) (finding implied repeal where an appropri-
ations act made an “express reference to the earlier statute”). As far as we
are aware, the only statements in the legislative history concerning the
rider explain that it “is designed to improve OIG access to Department
documents and information,” 160 Cong. Rec. H9345 (daily ed. Dec. 11,
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 Access of DOJ IG to Certain Information Protected from Disclosure by Statute

2014) (explanatory statement submitted by Rep. Rogers), and that it
“requires the Department to provide documents to the Inspector General
that are necessary as part of audits and investigations,” S. Rep. No. 113-
181, at 103 (2014). But both these goals would be advanced by all the
readings we have discussed, including the reading under which section
218 does not implicitly repeal Title III, Rule 6(e), and section 626. Cf.
Nat’l Treasury Emps. Union v. Devine, 733 F.2d 114, 120 (D.C. Cir.
1984) (finding implied repeal of personnel regulations where “Congress
expressly stated [in the legislative history] that it wished to prevent the
effectuation” of the policies set forth in those regulations). Although
interpreting section 218 to permit the Department to withhold materials
under the provisions of Title III, Rule 6(e), and section 626 would not
expand the scope of records available to OIG, it would help ensure that
the Department complied with the terms of the IG Act by requiring it to
grant OIG access in a “timely” manner; by obligating OIG to promptly
report incidents of noncompliance to the appropriations committees; and
by adding the possibility of Anti-Deficiency Act consequences for failure
to comply. On this interpretation, the purpose of section 218 would be to
reaffirm and reinforce the existing disclosure requirements in the IG Act.
We acknowledge that OIG’s broader reading of the rider is also plausi-
ble, and consonant with events surrounding its enactment. But the pre-
sumption against implied repeals requires not just that a reading constitut-
ing an implied repeal be more natural, or that it draw support from
comments in the legislative record, but that it be “unambiguous[],” Cal-
loway, 216 F.3d at 9; “clear and manifest,” Nat’l Ass’n of Home Builders,
551 U.S. at 662 (internal quotation marks omitted); or “necessary,” Posa-
das, 296 U.S. at 504. As we have explained, because section 218 can also
reasonably be read to permit the Department to continue to abide by the
“express limitations” on disclosure in Title III, Rule 6(e), and section 626,
OIG’s interpretation is not compelled by the text; hence, the rider does not
offer “unambiguous” evidence that Congress intended to partially repeal
existing statutory prohibitions on disclosure. Calloway, 216 F.3d at 9. In
light of the “very strong” presumption against implied repeals in appro-
priations acts, id., and the other interpretive principles we have identified,
we believe section 218 is best read to permit adherence to the disclosure
restrictions in Title III, Rule 6(e), and section 626.

97
 39 Op. O.L.C. 12 (2015)

V.

For the foregoing reasons, we conclude that Title III, Rule 6(e), and
section 626 permit the Department to disclose certain statutorily protected
information to OIG in certain circumstances. We further conclude that to
the extent those statutes prohibit disclosure of such information, neither
the IG Act nor section 218 permits the Department to disclose it.

KARL R. THOMPSON
Principal Deputy Assistant Attorney General
Office of Legal Counsel

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