Legal Commentary

Tales of OLC Opinions Foretold

By John Elwood

As the Washington Post is reporting today (on page A16 in the print edition), Office of Legislative Affairs AAG Ron Weich has sent a letter to Congressional Hispanic Caucus Chairperson Nydia Velazquez assuring her that the information-gathering and information-sharing provisions of the PATRIOT Act do not override the preexisting confidentiality requirements of the Census Act. The critical language of the letter is this:

The long history of congressional enactments protecting such information from such disclosure, as well as the established precedents of the courts and this Department, supports the view that if Congress intended to override these protections it would say so clearly and explicitly. Because no provision of the Patriot Act, including Section 215, indicates such a clear and explicit intent on the part of Congress, the Department?s view is that no provisions of that Act override otherwise applicable Census Act provisions barring the Commerce Secretary and other covered individuals from disclosing protected census information possessed by the Commerce Department.

I think it?s clear that OLA is channeling OLC on this. I suspect that those two sentences are cut and pasted either from some informal advice OLC rendered in advance of a formal opinion, or from an as-yet-unpublished formal opinion.

Because one of the Administration?s themes is (with apologies to Blue Oyster Cult) ?Don?t Fear the Census,? I expect that the opinion will be published as soon as possible on the OLC website. Recall that in August 2009, OLC published a ten-year-old Clinton-era opinion concluding that section 642(a) of the awkwardly acronymed Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) does not repeal a statutory confidentiality requirement codified at 13 U.S.C. § 9(a).

Full post as published by The Volokh Conspiracy on March 05, 2010 (boomark / email).