Census Confidentiality and The Patriot Act, 10-1

• Decision Date: 04 January 2010
• Docket Number: 10-1
• Citation: 34 Op. O.L.C. 1
• Parties: Census Confidentiality and the PATRIOT Act
• Court: Opinions of the Office of Legal Counsel of the Department of Justice

34 Op. O.L.C. 1

Census Confidentiality and the PATRIOT Act

No. 10-1

United States Department of Justice

January 4, 2010

JEANNIE S. RHEE Deputy Assistant Attorney General Office of Legal Counsel

Census Confidentiality and the PATRIOT Act

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 does not require the Secretary of Commerce to disclose census information to federal law enforcement or national security officers where such disclosure would otherwise be prohibited by the Census Act.

MEMORANDUM OPINION FOR THE GENERAL COUNSEL DEPARTMENT OF COMMERCE

You have asked whether the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat 272 (“PATRIOT Act”), as amended, may require the Secretary of Commerce to disclose census information to federal law enforcement or national security officers where such disclosure would otherwise be prohibited by the Census Act, 13 U.S.C. §§ 8, 9, 214 (2006). We have identified no provisions of the PATRIOT Act that would compel the Secretary to disclose such protected information.^[1]

I.

To help promote the public cooperation on which an accurate census largely depends, federal census statutes have long provided assurances of confidentiality to respondents. See generally Baldrige v. Shapiro, 455 U.S. 345, 354, 356-59 (1982). This Office has described the current Census Act confidentiality provisions as “the most recent codification of a statutory confidentiality requirement that dates back more than a century and that bars the disclosure of covered census information by census officials.” Relationship Between Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and Statutory Requirement for Confidentiality of Census Information, 2 Op. O.L.C. Supp. __, at *1 (May 18, 1999) (“IIRIRA Opinion”), available at http://www.usdoj.gov/olc/opinions.htm. The Census Act provides:

Neither the Secretary [of Commerce], nor any other officer or employee of the Department of Commerce or bureau or agency thereof [ 2] or local government census liaison, may, except as provided in section 8 or 16 or chapter 10 of this title or section 210 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998 or section 2(f) of the Census of Agriculture Act of 1997-

(1) use the information furnished under the provisions of this title [the Census Act] for any purpose other than the statistical purposes for which it is supplied; or

(2) make any publication whereby the data furnished by any particular establishment or individual under this title can be identified; or

(3) permit anyone other than the sworn officers and employees of the Department or bureau or agency thereof to examine the individual reports.

13 U.S.C. § 9(a).

The cross-referenced statutes in section 9(a) presently provide exceptions only for disclosure of transcripts or reports containing information furnished by a respondent when requested by that respondent (or his or her heir, successor or authorized agent), see 13 U.S.C. § 8(a); certain “tabulations and other statistical materials” that the Secretary may produce for private parties or government agencies, provided that the disclosed materials do not reveal “the information reported by, or on behalf of, any particular respondent, ” id. § 8(b); certain address information that may be disclosed to local government census liaisons under section 16 of the Census Act, id. § 16; certain business data and information on business enterprises that may be shared with the Bureau of Economic Analysis and the Bureau of Labor Statistics under sections 401 and 402 of the Census Act id. §§ 401, 402; certain disclosures to the Census Monitoring Board permitted by section 210 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998, Pub. L. No. 105-119, 111 Stat. 2471, 2487 (1997); and certain disclosures to the Department of Agriculture permitted by the Census of Agriculture Act of 1997, Pub. L. No. 105-113, §§ 2(f), 4(a)(1), 111 Stat. 2274-76, for the purpose of facilitating the agriculture census. In addition, section 9(b) of the Census Act exempts certain information relating to the census of governments from section 9(a)'s confidentiality protections, see 13 U.S.C. § 9(b), and certain other provisions outside the Census Act expressly address the confidentiality of covered census information under section 9. See, e.g., 42 U.S.C. § 11608 (2006) (establishing procedures with respect to information protected by section 9 for purposes of implementing an international convention); 42 U.S.C. § 6274 (2006) (specifically permitting disclosure of certain information “without regard to” section 9); 44 U.S.C. § 2108(b) (2006) (regulating [ 3] release of certain historic census records in the custody of the Archivist of the United States).

Reinforcing the confidentiality protections of section 9, section 8(c) of the Census Act provides that “[i]n no case shall information furnished under this section”-which, as noted, authorizes the Secretary to furnish statistical tabulations of census data that “do not disclose the information reported by, or on behalf of, any particular respondent, ” as well as census transcripts and reports when requested by the respondent (or the respondent's heir, successor, or authorized agent)-“be used to the detriment of any respondent or other person to whom such information relates, except in the prosecution of alleged violations of this title.” 13 U.S.C. § 8(c); see also 15 C.F.R. § 80.5 (2009) (noting this statutory prohibition). Under section 214 of the Census Act, violations of section 9 by any census employee, staff member, or local liaison are subject to criminal punishment. See 13 U.S.C. § 214.

Enacted into law after the September 11, 2001 attacks, the PATRIOT Act made extensive changes to existing statutes governing investigations related to terrorism, intelligence, and national security. Although some PATRIOT Act provisions were subject to a statutory sunset, Congress reauthorized provisions of the original PATRIOT Act, with amendments, in the USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, 120 Stat. 192 (“Reauthorization Act”). The PATRIOT Act, as amended, authorized a number of new or modified forms of surveillance, information-gathering, and information-sharing for federal law enforcement and national security officers.^[2] [ 4]

The PATRIOT Act includes certain express exceptions to otherwise applicable confidentiality provisions. Section 508 of the PATRIOT Act provided for authorized applications by certain high-ranking Justice Department officials for an ex parte court order requiring production of certain educational records- possessed by the Department of Education and otherwise subject to statutory confidentiality requirements-for use in certain terrorism-related investigations and prosecutions. PATRIOT Act § 508 (repealed by Pub. L. No. 107-279, §§ 401(a)(6), 403(1), 116 Stat. 1940, 1983, 1985 (2002)); 20 U.S.C. § 9573(e) (2006) (recodifying similar authorization). This provision authorized court orders “requiring” the Secretary of Education to permit the Attorney General or his designee to “collect” and “retain, disseminate, and use” these records for official purposes related to covered investigations and prosecutions, “[n]otwithstanding” statutory disclosure prohibitions that would otherwise apply to those specific records. PATRIOT Act § 508; 20 U.S.C. § 9573(e). In addition, among numerous other changes, the PATRIOT Act amended applicable laws to permit wider sharing of certain evidence collected by grand juries, see Fed. R. Crim. P. 6(e)(3)(D), and broader disclosure within the government, “[n]otwithstanding any other provision of law, ” of certain intelligence-related information obtained as part of a criminal investigation. 50 U.S.C.A. § 403-5d (West 2003 & Supp. 2009); see also supra note 2. None of the PATRIOT Act's provisions expressly references the Census Act or its confidentiality protections.

You have asked whether any of the information-gathering or information-sharing provisions of the PATRIOT Act, as amended, may override the confidentiality requirements of the Census Act so as to require the Commerce Secretary to disclose otherwise covered census information to federal law enforcement or national security officials. Our understanding from you is that you are not asking [ 5] us to address what effect, if any, the Census Act confidentiality provisions have on census-related information or communications that could possibly be obtained through surveillance, interception, or other means apart from a direct request to the Commerce Department. Nor are you asking us to address the effect, if any, of PATRIOT Act provisions on the confidentiality under the Census Act of census information possessed not by the Commerce Department, but by third parties, such as those furnishing census information. We have reviewed the PATRIOT Act provisions that you have identified, and we have also conducted an independent review of the statute. With one exception, we conclude that none of the provisions appears on its face to require the Secretary of Commerce to disclose census information otherwise subject to the confidentiality protection mandated by the Census Act. We therefore do not discuss the entirety of the PATRIOT Act in detail and instead turn to the one provision that, in our judgment, warrants further analysis.

In section 215 of the PATRIOT Act, Congress amended provisions of the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C.A. § 1801-1885c ...