Secretary's Order 16-2006; Invoking Governmental Privileges, 67024-67025 [06-9239]

Agencies

• Office of the Secretary
• DEPARTMENT OF LABOR

[Federal Register Volume 71, Number 222 (Friday, November 17, 2006)]
[Notices]
[Pages 67024-67025]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-9239]



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Part II





Department of Labor





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 Secretary's Order 16-2006; Invoking Governmental Privileges; Notice

Federal Register / Vol. 71, No. 222 / Friday, November 17, 2006 / 
Notices

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DEPARTMENT OF LABOR

Office of the Secretary


Secretary's Order 16-2006; Invoking Governmental Privileges

    1. Purpose. To delegate authority and assign responsibility to 
particular U.S. Department of Labor (DOL) officers to invoke claims of 
Governmental privileges arising from the functions of their respective 
agencies.
    2. Authority and Directives Affected. This Order is issued pursuant 
to 29 U.S.C. 551, et seq.; 5 U.S.C. 301; 5 U.S.C. 552(b).
    All prior agency delegations and assignments in conflict with this 
Order and its Attachment are hereby superseded.
    3. Background. Governmental, or executive, privileges are founded 
upon the public interest in the effective performance of the 
constitutional powers and responsibilities assigned to the Executive 
Branch. They rest largely upon common-law tradition, and have been 
reinforced by courts with references to the Constitution (particularly 
the separation of powers doctrine and the provisions on executive 
authority), and may also be rooted in statute. Unlike such privileges 
as the attorney-client or marital privilege, which are available to all 
litigants in a court of law, Governmental privileges may be invoked 
only by the Government, and solely for the purpose of preventing 
particular confidential information from being disclosed.
    Since Governmental privileges are designed to limit information 
available to litigants and the public, thereby limiting ``the search 
for truth,'' they are applied narrowly by the courts and invoked only 
in accordance with specific procedures. In order to properly assert a 
Governmental privilege before a court, a formal claim of privilege must 
be filed by affidavit or declaration. The formal claim must: (1) Be 
made by a high-level agency official to whom such authority has been 
properly delegated under this Order; (2) contain a description of the 
privileged material sufficient to permit a determination as to whether 
the claim of privilege is properly asserted; (3) state the reasons 
disclosure of the materials would cause harm; and (4) state that the 
invocation of the privilege is based on personal consideration by the 
delegated official.
    This Order effectuates the formal delegation of authority by the 
Secretary to particular DOL officers for the invocation of Governmental 
privileges. Further redelegations of authority are not permitted.
    4. Delegation of Authority and Assignment of Responsibility to DOL 
Officers to Invoke Governmental Privileges.
    A. Each DOL official specified in the attached Memorandum is hereby 
delegated authority and assigned responsibility to invoke all 
appropriate claims of the following Governmental privileges arising 
from the functions of his/her respective agency, following his/her 
personal consideration of the matter:
    (1) Informant's Privilege (to protect from disclosure the identity 
of any person who has provided information to the particular agency in 
cases arising under an authority delegated or assigned to the agency). 
A claim of privilege may be asserted where the official has determined 
that disclosure of the privileged matter would: (1) Interfere with an 
investigative or enforcement action taken by the agency under an 
authority delegated or assigned to it; (2) adversely affect persons who 
have provided information to the agency; or (3) deter other persons 
from reporting a violation of law or other authority delegated or 
assigned to the agency.
    (2) Deliberative Process Privilege (to withhold information that 
may disclose predecisional intra-agency or inter-agency deliberations, 
including the analysis and evaluation of facts; written summaries of 
factual evidence that reflect a deliberative process; and 
recommendations, opinions, or advice on legal or policy matters in 
cases arising under statutory provisions or other authorities that are 
delegated or assigned to the agency). A claim of privilege may be 
asserted where the official has determined that: (1) The information 
was generated prior to and in contemplation of a decision by a part of 
the Department; (2) the information is not purely factual and does not 
concern recommendations that the Department expressly adopted or 
incorporated by reference in its ultimate decision; and (3) disclosure 
of the privileged matter would have an inhibiting effect on the 
agency's decision-making processes.
    (3) Privilege for Investigative Documents Compiled for Law 
Enforcement Purposes (to withhold information that may reveal the 
agency's confidential investigative techniques and procedures). A claim 
of privilege may be asserted where the official has determined that 
disclosure of the privileged matter would have an adverse impact upon 
the agency's enforcement of statutory provisions or other authorities 
that have been delegated or assigned to the agency by: (1) Disclosing 
investigative techniques and methodologies; (2) deterring persons from 
providing information to the agency; (3) prematurely revealing the 
facts of the agency's case; or (4) disclosing the identities of persons 
who have provided information under an express or implied promise of 
confidentiality.
    B. In addition to the privileges identified above, the Commissioner 
of the Bureau of Labor Statistics and the Deputy Commissioner are 
hereby delegated authority and assigned responsibility to invoke all 
appropriate claims of the following Governmental privileges arising 
from the functions of his/her agency, following his/her personal 
consideration of the matter:
    (1) Privilege for Information Provided to the Government on a 
Pledge of Confidentiality (to protect from disclosure information 
provided to the Government under a pledge of confidentiality). A claim 
of privilege may be asserted where the official has determined that the 
information: (1) Was given to the Government on a pledge of 
confidentiality; and (2) disclosure of the information would hamper the 
efficient operation of a Government program.
    (2) Confidential Report Privilege (to protect from disclosure 
information required to be provided to the Government). A claim of 
privilege may be asserted where the official has determined that: (1) 
There is a statutory basis for maintaining confidentiality of the 
information sought to be protected from disclosure; and (2) disclosure 
of the information would be harmful to a governmental interest.
    5. Procedure for Invoking Claims of Governmental Privileges.
    A. Prior to filing a formal claim of privilege, the official 
delegated authority to invoke a claim of privilege under this Order 
shall personally review: (1) All the documents sought to be withheld 
(or, in cases where the volume is so large that all of the documents 
cannot be personally reviewed in a reasonable time, an adequate and 
representative sample of such documents); and (2) a description or 
summary of the litigation in which the disclosure is sought.
    B. The official delegated authority to invoke a claim of privilege 
under this Order shall consult with the Solicitor of Labor or his/her 
designee(s) prior to formally invoking such a claim. In addition, the 
particular official may ask the Solicitor of Labor or his/her 
designee(s) to file any necessary legal papers or documents related to 
the formal invocation of a privilege. The Solicitor of Labor or his/her 
designee(s) will also provide legal advice and assistance to all 
officials of the

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Department relating to the authorities of this Order.
    C. The official delegated authority to invoke a claim of privilege 
under this Order shall consult with the Assistant Secretary for 
Congressional and Intergovernmental Affairs or his/her designee(s) 
prior to formally invoking a claim of privilege if the source of the 
request is a Member of Congress.
    6. Miscellaneous.
    A. Nothing in this Order or the attached Memorandum shall: (1) Be 
construed to override any applicable laws or statutes; (2) apply to the 
Office of Inspector General; or (3) limit the Secretary's authority to 
perform or redelegate and/or reassign such authority and responsibility 
of DOL officials unless otherwise precluded by law.
    B. The attached Memorandum shall be published in the Federal 
Register. It is also subject to periodic revision by the Secretary, as 
necessary, and is effective immediately.
    C. Redelegations of authority by the DOL officer positions 
specified in the attached Memorandum are not permitted.
    7. Effective Date. This Order is effective immediately.

    Dated: November 9, 2006.
Elaine L. Chao,
Secretary of Labor.

Memorandum for Department of Labor Executive Staff

November 9, 2006.

From: Elaine L. Chao
Subject: Delegation of Authority and Assignment of Responsibility to 
Department Officers to Invoke Governmental Privileges.

    This Memorandum is issued pursuant to Secretary's Order 16-2006 
and the authorities cited therein, in order to designate specific 
Department (DOL) officers who are delegated authority and assigned 
responsibility to invoke all appropriate claims of Governmental 
privileges arising from the functions of their respective agencies. 
The specific delegations are listed below. In general, the 
delegation is to all presidentially-appointed, Senate-confirmed 
heads of agencies within the Department and to certain other 
officials. Moreover, in the case of larger agencies more likely to 
face the need to invoke such privileges, generally a delegation is 
made to the respective first assistant, as derived from Secretary's 
Order 4-2003 on Order of Succession to the Secretary of Labor and 
Continuity of Executive Direction.
    Governmental, or executive, privileges are founded upon the 
public interest in the effective performance of the constitutional 
powers and responsibilities assigned to the Executive Branch. They 
rest largely upon common-law tradition, and have been reinforced by 
courts with references to the Constitution (particularly the 
separation of powers doctrine and the provisions on executive 
authority), and may also be rooted in statute. Unlike such 
privileges as the attorney-client or marital privilege, which are 
available to all litigants in a court of law, Governmental 
privileges may be invoked only by the Government, and solely for the 
purpose of preventing particular confidential information from being 
disclosed. Since Governmental privileges are designed to limit 
information available to other litigants and the public, thereby 
limiting ``the search for truth,'' they are applied narrowly by the 
courts and invoked subject to specific procedures.
    At the Department of Labor, in order to assert a Governmental 
privilege before a court, a formal claim of privilege must be filed 
by affidavit or declaration. The formal claim must: (1) Be made by a 
high-level agency official to whom such authority has been properly 
delegated under this Order; (2) contain a description of the 
privileged material sufficient to permit a determination as to 
whether the claim of privilege is properly asserted; (3) state the 
reasons disclosure of the materials would cause harm; and (4) state 
that the invocation of the privilege is based on personal 
consideration by the delegated official.
    This Memorandum supersedes all prior inconsistent agency 
delegations and assignments. Agency heads shall assure that agency 
position descriptions and other pertinent documents are maintained 
consistently with the designations provided below. Any modifications 
to the delegation of authority and assignment of responsibility 
specified in this memorandum are reserved to the Secretary.
    This Memorandum shall be published in the Federal Register and 
codified in the Department of Labor Manual Series. This Memorandum 
is subject to periodic revision by the Secretary, as necessary, and 
is effective on the date indicated above.

Designation of Agency Officers Delegated Authority and Assigned 
Responsibility To Assert Governmental Privileges

    Office of the Secretary, and any other DOL component not listed 
below: Deputy Secretary of Labor.
    Office of the Assistant Secretary for Administration and 
Management: Assistant Secretary for Administration and Management; 
Deputy Assistant Secretary for Operations.
    Office of the Solicitor: Solicitor of Labor; Deputy Solicitor.
    Employee Benefits Security Administration: Assistant Secretary 
for the Employee Benefits Security Administration; Deputy Assistant 
Secretary for Policy.
    Employment Standards Administration: Assistant Secretary for the 
Employment Standards Administration; Deputy Assistant Secretary.
    Wage and Hour Division: Administrator.
    Office of Labor-Management Standards: Deputy Assistant 
Secretary.
    Federal Contract Compliance Programs: Deputy Assistant 
Secretary.
    Office of Workers' Compensation Programs: Director.
    Employment and Training Administration: Assistant Secretary for 
the Employment and Training Administration; Deputy Assistant 
Secretary for Employment and Training (organizationally, position 
known as Deputy Assistant Secretary for the Workforce Investment 
System).
    Mine Safety and Health Administration: Assistant Secretary for 
the Mine Safety and Health Administration; Deputy Assistant 
Secretary for Mine Safety and Health (organizationally, position 
known as Deputy Assistant Secretary for Policy).
    Occupational Safety and Health Administration: Assistant 
Secretary for the Occupational Safety and Health Administration; 
Deputy Assistant Secretary (position primarily responsible for 
Congressional and Intergovernmental liaison activity).
    Veterans' Employment and Training Service: Assistant Secretary 
for the Veterans' Employment and Training Service; Deputy Assistant 
Secretary.
    Office of the Assistant Secretary for Policy: Assistant 
Secretary for the Office of the Assistant Secretary for Policy.
    Office of Congressional and Intergovernmental Affairs: Assistant 
Secretary for the Office of Congressional and Intergovernmental 
Affairs.
    Office of Disability Employment Policy: Assistant Secretary for 
the Office of Disability Employment Policy.
    Office of Public Affairs: Assistant Secretary for the Office of 
Public Affairs.
    Bureau of Labor Statistics: Commissioner of the Bureau of Labor 
Statistics; Deputy Commissioner.
    Office of the Chief Financial Officer: Chief Financial Officer; 
Deputy Chief Financial Officer.
    Women's Bureau: Director of the Women's Bureau.
    Bureau of International Labor Affairs: Deputy Under Secretary 
for International Affairs.
    Office of the Chief Information Officer: Chief Information 
Officer.
    Office of the Chief Acquisition Officer: Chief Acquisition 
Officer.
    Office of the Chief Human Capital Officer: Chief Human Capital 
Officer.

[FR Doc. 06-9239 Filed 11-16-06; 8:45 am]
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