CONGRESSIONAL OVERSIGHT MANUAL

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Grand Jury Materials

In the course of an investigation, Congress may seek access to evidence that was presented before a grand jury.

As a general matter, Federal Rule of Criminal Procedure 6(e) provides for the secrecy of “matters occurring before the grand jury,” unless a court authorizes disclosure for the purposes of a judicial proceeding or at the request and showing by a defendant that he needs the information to justify dismissal of an indictment.

Although the rule codifies the traditional policies underlying grand jury secrecy, it remains subject to recognized exceptions 224 and was arguably not intended to insulate from disclosure all information once it is presented to a grand jury. 225

There are examples in which entities of the legislative branch have sought and received material that was covered by Rule 6(e).

For example, in 1952, the Senate Banking Committee filed a motion requesting access to documents in the custody of the U.S. Attorney that had been shown to a federal grand jury. 226

The court ordered the documents disclosed, over the objections of the U.S. Attorney, concluding that “when the fact or document is sought for itself, independently, rather than because it was stated before or displayed to the grand jury, there is no bar of secrecy.” 227

Most recently, in the context of an impeachment inquiry, the U.S. District Court for the District of Columbia ruled that the House Committee on the Judiciary was entitled to access grand jury materials. 228

Similarly, in In re Grand Jury Investigation of Ven-Fuel et al., 229 a federal district court held that a subcommittee request for documents presented to a grand jury was not prohibited by Rule 6(e).

The court held that when Congress is acting within the “legitimate sphere of legislative activity” it is legally entitled to Rule 6(e) information. 230

The court thus ordered that the chair and Members of the subcommittee “be permitted to examine all of the documents, without segregation and identification of those upon which the criminal indictment was based, in order to determine what specific documents they wish produced for their use.” 231

When information is sought by a congressional committee in order to reveal what actually occurred before the grand jury, however, the courts have been much more reluctant to order its disclosure.

In In Re Grand Jury Impaneled October 2, 1978 (79-2), 232 the District Court for the District of Columbia held that a subcommittee’s request for an inventory of all documents subpoenaed by a grand jury fell within the scope of Rule 6(e) and, therefore, was not required to be disclosed. 233

224 See In re Report & Recommendation of Grand Jury, 370 F. Supp. 1219, 1229 (D.D.C. 1974).

225 United States v. Saks & Co., 426 F. Supp. 812, 814 (S.D.N.Y. 1976).

226 In re Senate Banking Committee Hearings, 19 F.R.D. 410 (N.D. Ill. 1956).

227 Ibid. at 412.

228 In re Application of the Committee on the Judiciary, U.S. House of Representatives, for an Order Authorizing the Release of Certain Grand Jury Materials, Grand Jury Action No. 19-48 (D.D.C. October 25, 2019, J. Howell). The District Court’s decision has been appealed and, as of this writing, is under review by the U.S. Circuit Court for the District of Columbia. For a more detailed discussion of access to information in impeachment investigations, including grand jury materials, see CRS Report R45983, Congressional Access to Information in an Impeachment Investigation, by Todd Garvey.

229 441 F. Supp. 1299, 1302-03 (D. Fla. 1977).

230 Ibid. at 1307 (stating that “there is no question that Chairman Moss and the Subcommittee have demonstrated their constitutionally independent legal right to the documents that they seek for their legitimate legislative activity.”).

231 Ibid.

232 510 F. Supp. 112 (D.D.C. 1981).

233 Ibid. at 114.

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Documents Related to Pending Litigation

Often congressional committees decide to investigate matters in which federal litigation is currently pending, which may be met by resistance from DOJ.

These rationales have included a desire to avoid prejudicial pre-trial publicity, protecting the rights of innocent third parties, protecting the identity of confidential informants, preventing disclosure of the government’s strategy in anticipated or pending judicial proceedings, avoiding a potential chilling effect on the exercise of prosecutorial discretion by DOJ attorneys, and precluding interference with the President’s constitutional duty to faithfully execute the laws. 234

For instance, in response to a 1982 congressional investigation of the EPA, Attorney General William French Smith argued that withholding EPA attorneys’ memoranda and notes regarding enforcement strategy, case preparation, and settlement consideration prevented prejudice to the cause of effective law enforcement. 235

He additionally expressed concern that disclosure would raise “a substantial danger that congressional pressures will influence the course of the investigation.” 236

In the 2001-2002 House Government Reform Committee investigation of the misuse of informants by the Federal Bureau of Investigation (FBI), despite maintaining its historical position, DOJ ultimately disclosed internal deliberative prosecutorial documents following increased congressional pressure.

In a February 1, 2002, letter to Chairman Burton, the DOJ Assistant Attorney General for Legislative Affairs explained:

Our particular concern in the current controversy pertains to the narrow and especially sensitive categories of advice memoranda to the Attorney General and the deliberative documents making recommendations regarding whether or not to bring criminal charges against individuals. We believe that the public interest in avoiding the polarization of the criminal justice process required greater protection of those documents which, in turn, influences the accommodation process. This is not an “inflexible position,” but rather a statement of a principled interest in ensuring the integrity of prosecutorial decision-making. 237

Oversight in the face of pending litigation poses a choice for Congress.

On one hand, congressionally generated publicity may harm the executive branch’s prosecutorial effort.

On the other hand, access to information under secure conditions can fulfill the congressional oversight objectives and need not be inconsistent with the executive’s authority to pursue its case.

Although powerful arguments may be made on both sides, the decision to pursue a congressional investigation of pending civil or criminal matters remains a choice that is solely within Congress’s discretion to make.

234 DOJ’s views of this issue were most famously articulated by Attorney General Robert Jackson in 1941. 40 Op. Atty. Gen. 45 (1941). The opinion argued that “congressional or public access to [internal DOJ documents] would not be in the public interest” because it would “seriously prejudice law enforcement.” Ibid. at 46-47.

235 See Attorney General William French Smith, letter to the Honorable John D. Dingell, Chairman, House Subcommittee on Oversight and Investigation, Committee on Energy and Commerce, November 30, 1982, reprinted in H.Rept. 97-968 at 37-38.

236 Smith, letter to Dingell, (quoting former Deputy Assistant General Thomas E. Kauper). This policy is said to be “premised in part on the fact that the Constitution vests in the President and his subordinates the responsibility to ‘take Care that the Laws be faithfully executed.’”

237 U.S. Congress, House Government Reform, Investigation into Allegations of Justice Department Misconduct in New England - Volume 1, 107th Congress, May 3, 2001, Serial No. 107-56 (Washington: GPO, 2002), pp. 520-556, 562-604.

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Classified Material

How Are Materials Classified?

The standards for classifying and declassifying information are contained in Executive Order 13526. 238

These standards provide that the President, Vice President, agency heads, and any other officials designated by the President may classify information upon a determination that its unauthorized disclosure could reasonably be expected to damage national security. 239

Such information must be owned by, produced by, or under the control of the federal government and must concern one of the areas delineated by the executive order. 240

Information is classified at one of three levels based on the amount of danger that its unauthorized disclosure could reasonably be expected to cause to national security. 241

Information is classified as:

 “top secret” if its unauthorized disclosure could reasonably be expected to cause “exceptionally grave damage” to national security,

 “secret” if its unauthorized disclosure could reasonably be expected to cause “serious damage” to national security, and

 “confidential” if its unauthorized disclosure could reasonably be expected to cause “damage” to national security.

Significantly, for each level, the original classifying officer must identify or describe the specific danger potentially presented by the information’s disclosure. 242

The officer who originally classifies the information establishes a date for declassification based upon the expected duration of the information’s sensitivity.

If the officer cannot set an earlier declassification date, then the information must be marked for declassification after 10 or 25 years, depending on the sensitivity of the information. 243

The deadline for declassification can be extended if the threat to national security still exists. 244

238 Executive Order 13526, 75 Federal Register 707, January 5, 2010.

239 Ibid. at §1.3. The unauthorized disclosure of foreign government information is presumed to damage national security. Ibid. at §1.1(b).

240 Ibid. at §1.4. The areas are as follows: military plans, weapons systems, or operations; foreign government information; intelligence activities, intelligence sources/methods, cryptology; foreign relations or foreign activities of the United States, including confidential sources; scientific, technological, or economic matters relating to national security; federal programs for safeguarding nuclear materials or facilities; vulnerabilities or capabilities of national security systems; or weapons of mass destruction. Ibid. In addition, when classified information that is incorporated, paraphrased, restated, or generated in a new form, that new form must be classified at the same level as the original. Ibid. at §§2.1-2.2.

241 Ibid. at §1.2.

242 Ibid. Classifying authorities are specifically prohibited from classifying information for reasons other than protecting national security, such as to conceal violations of law or avoid embarrassment. Ibid. at §1.7(a).

243 Ibid. at §1.5.

244 Ibid.at §1.5(c).

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Who Can Access Classified Materials?

Access to classified information is generally limited to those who:

 demonstrate their eligibility to the relevant agency head (for example, through a security clearance);

 sign a nondisclosure agreement; and

 have a need to know the information, which is satisfied upon “a determination within the executive branch … that a prospective recipient requires access to specific classified information in order to perform or assist in a lawful and authorized governmental function.” 245

The information being accessed may not be removed from the controlling agency’s premises without permission. 246

Each agency is required to establish systems for controlling the distribution of classified information. 247

The executive order does not contain any instructions regarding disclosures to Congress or its committees of jurisdiction.

“Members of Congress, as constitutionally elected officers, do not receive security clearances as such, but are instead presumed to be trustworthy,” thereby fulfilling the first requirement to access classified materials. 248

Members of Congress still face the “need to know” requirement.

A Member could assert that he or she fulfills this requirement based on the constitutional duties and responsibilities of his or her office.

The executive branch may disagree with this interpretation and has previously stated that it retains the final authority to determine if a Member has a need to know.
249

Congressional aides, support staff, and other legislative branch employees do not automatically have access to classified information and, therefore, must go through the necessary security clearance process prior to being permitted to review such information.

The executive order’s silence with respect to disclosure to Congress, combined with the absence of any other law restricting congressional access to classified material, suggests that mere classification likely cannot be used as a legal basis to withhold information from Congress.

That said, practical and political concerns with respect to controlled access, secure storage, and public disclosure may provide persuasive rationales for withholding or limiting congressional access.

Committees and subcommittees have wide discretion to negotiate with the Administration regarding these issues.

For example, an investigating committee or subcommittee could choose to review documents at an executive branch secure facility, permit redactions of certain information, limit the ability of staff to review certain material, and/or opt to hold non-public meetings, briefings, and hearings where classified information will be discussed.

None of these measures are legally required, but all are within the investigating entity’s discretion and may assist in facilitating the disclosure of materials sought during the investigation.

245 Ibid. at §§4.1, 6.1(dd). The need-to-know requirement can be waived, however, for former Presidents and Vice Presidents, historical researchers, and former policymaking officials who were appointed by the President or Vice President. Ibid. at §4.4.

246 Ibid. at §4.1.

247 Ibid. at §4.2

248 Christopher H. Schroeder, Access to Classified Information, 20 Op. Off. Legal Counsel 402, *11 (1996).

249 See, for example, ibid.

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Sensitive but Unclassified Materials

Committees conducting investigations and oversight of executive branch agencies may require access to information and documents that are “sensitive” but do not rise to the level of being classified.

This general category of “sensitive but unclassified” (SBU) information can present access issues for congressional committees.

The fact that information is “sensitive” does not provide a legal basis for withholding it from duly authorized jurisdictional committees of Congress.

However, there may be legitimate political and policy reasons why an agency’s classification of information as “sensitive” should be afforded due deference.

SBU material can take numerous forms.

Some categories are statutorily authorized, while others are creations of the agency that authored or is holding the requested information.

One example of a statutorily authorized SBU category is found in the statute creating the Transportation Security Administration (TSA).

The statute requires the TSA director to prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security … if [he] decides that disclosing the information would — (A) be an unwarranted invasion of personal privacy; (B) reveal a trade secret or privileged or confidential commercial or financial information; or (C) be detrimental to the security of transportation. 250

The statute also expressly states that the general authority provided to withhold information from the public “does not authorize information to be withheld from a committee of Congress authorized to have the information.” 251

Pursuant to this statute, TSA promulgated regulations defining sensitive security information (SSI) and restrictions on its disclosure. 252

In addition, the SSI regulations appear to insulate congressional committees and their staffs from any sanctions or penalty from the receipt and disclosure of SSI.

The definition of covered persons — those subject to the SSI regulations — does not appear to include Members of Congress, committees, or congressional staff. 253

Moreover, the regulations specifically state, as directed by the statute, that “nothing in this part precludes TSA or the Coast Guard from disclosing SSI to a committee of Congress authorized to have the information.” 254

Many agencies have developed their own internal information protection regimes that may be cited in response to congressional requests.

One example of such an agency-created regime is “for official use only” (FOUO).

According to a DHS Management Directive, the FOUO classification 255 distinguishes between documents marked FOUO and other information that may be protected from public disclosure under different designations.

Specifically, the directive defines FOUO as “not to be considered classified information” 256 and “is not automatically exempt from disclosure under the provisions of” FOIA. 257

The directive makes clear that FOUO information is not intended to be withheld from other governmental entities, stating that such information “may be shared with other agencies, federal, state, tribal, or local government and law enforcement officials.” 258

Such a definition appears to include Congress (and, thus, authorized committees and subcommittees) among the entities to which the information can be disclosed.

Such inclusion is consistent with Congress’s broad constitutionally based authority to obtain information from executive agencies.

250 49 U.S.C. §114(r)(1); CRS Report RL33670, Protection of Security-Related Information, by Gina Stevens and Todd B. Tatelman. This CRS report is available to congressional clients upon request.

251 49 U.S.C. §114(r)(2).

252 49 C.F.R. Part 1520.

253 See 49 C.F.R. §1520.7 (providing 13 specific categories of “covered persons”).

254 49 C.F.R. §1520.15(c).

255 DHS, “Safeguarding Sensitive but Unclassified (For Official Use Only) Information,” Management Directive System MD No. 11042.1, 2005.

256 Ibid. at ¶ 4.

257 Ibid. at ¶ 6(a)(4).

258 Ibid. at ¶ 6(h)(6).

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Individual Member and Minority Party Authority to Conduct Oversight and Investigations

Individual Members and Members of the minority party may conduct investigatory oversight on their own initiative.

However, absent the support of the body or a committee, such an investigation will not enjoy legal authority available to each house and its committees to institute official committee investigations, hold hearings, or issue subpoenas. 259

The role of Members of the minority in the investigatory oversight process is governed by the rules of each house and its committees.

Although individual Members may seek the voluntary cooperation of agency officials or private persons, no court has directly recognized an individual Member’s right, other than a committee chair, 260 to exercise the committee’s oversight authority without the permission of a majority of the committee or its chair.

Senate rules provide substantially more effective means for individual minority-party Members to engage in “self-help” to support oversight objectives than afforded their House counterparts.

Senate rules emphasize the rights and prerogatives of individual Senators and, therefore, minority groups of Senators. 261

The most important of these rules are those that effectively allow unlimited debate on a bill or amendment unless an extraordinary majority votes to invoke cloture. 262

Senators can use their right to filibuster, or simply the threat of filibuster, to delay or prevent the Senate from reaching a vote on legislative business.

Other Senate rules can also directly or indirectly aid the minority in gaining investigatory rights.

For example, the right of extended debate also applies in committee and, unlike on the floor, the cloture rule may not be invoked in committee.

Each Senate committee decides for itself how it will control debate, and therefore a Member may have opportunities to threaten or cause delay in committee.

Also, Senate Rule XXVI prohibits the reporting of any measure or matter from a committee unless a majority of the committee is present, another point of possible tactical leverage.

Even beyond the potent power to delay, Senators can promote their goals by taking advantage of other parliamentary rights and opportunities that are provided by the Senate’s formal procedures and customary practices, such as are afforded by the processes dealing with floor recognition and the amending process.

259 Minority Members are accorded some rights under the rules. For example, in the House of Representatives, whenever a hearing is conducted on any measure or matter, the minority may, upon the written request of a majority of the minority Members to the chairman before the completion of the hearing, call witnesses selected by the minority and presumably request documents. House Rule XI 2(j)(1); see also House Banking Committee Rule IV(4).

260 Ashland Oil Co., Inc. v. FTC, 548 F. 2d 977, 979-80 (D.C. Cir. 1976), affirming 409 F. Supp. 297 (D.D. C. 1976); see also Exxon v. FTC, 589 F.2d 582, 592-93 (D.C. Cir. 1978) (acknowledging that the “principle is important that disclosure of information can only be compelled by authority of Congress, its committees and subcommittees, not solely by individual members”); In re Beef Industry Antitrust Litigation, 589 F.2d 786, 791 (5th Cir. 1979) (refusing to permit two Members of Congress from intervening in private litigation because they “failed to obtain a House Resolution or any similar authority before they sought to intervene.”)

261 See CRS Report RL30360, Filibusters and Cloture in the Senate, by Valerie Heitshusen and Richard S. Beth.

262 Senate Rule XXII.

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5 U.S.C. Section 2954: The “Rule of Seven” Statute

Another potential tool for minority participation in oversight is Title 5, Section 2954, of the U.S. Code, commonly known as the “rule of seven.” 263

Under the statute, seven members of the House Oversight and Reform Committee or five members of the Senate Committee on Homeland Security and Governmental Affairs can request information from executive agencies on matters within their committee jurisdiction, which the agencies “shall” provide. 264

While the statute appears to confer a right upon these Members, a judicially recognized right of action to enforce the statute when an agency refuses to disclose information has not been established and, based on the recent District Court decision in Cummings v. Murphy, 265 courts may not recognize such a right of action.

263 Ibid. at 876 n.7. Title 5, Section 2954, provides: “An Executive agency, on request of the Committee on [Oversight and] Government [Reform] of the House of Representatives, or of any seven members thereof, or on request of the Committee on Government Operations of the Senate, or any five members thereof, shall submit any information requested of it relating to any matter within the jurisdiction of the committee.”

264 The text of the statute refers to the House Committee on Government Operations, a predecessor to the House Committee on Oversight and Reform, and the Senate Committee on Governmental Affairs, a predecessor to the Senate Committee on Homeland Security and Governmental Affairs.

265 Cummings v. Murphy, 321 F. Supp.3d 92 (D.D.C. 2018).

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Specialized Investigations

Oversight at times occurs through specialized, temporary investigations of a specific event or development.

These can be dramatic, high-profile endeavors focusing on scandals, alleged abuses of authority, suspected illegal conduct, or other unethical behavior.

The stakes are high, possibly even leading to the end of individual careers of high-ranking executive officials.

Congressional investigations can induce resignations, firings, and impeachment proceedings and question major policy actions of the executive, as occurred in these notable instances: the Senate Watergate Committee investigation into the Nixon Administration in the early 1970s, the Church and Pike select committees’ inquiries in the mid-1970s into intelligence agency abuses, the 1981 and 1982 House and Senate select committee inquiries into the ABSCAM scandal, the 1987 Iran-Contra investigation during the Reagan Administration, the multiple investigations of scandals and alleged misconduct during the Clinton Administration, the Hurricane Katrina probe in 2005 during the George W. Bush Administration, the Benghazi panel established in 2014 and again in 2015 during the Obama Administration, and investigations into Russian interference in the 2016 presidential election during 2017 and 2018.

On these investigations and others, interest in Congress, the executive, and the public is frequently intense and impassioned.

Although the circumstances that give rise to one or another committee investigation can vary significantly, the investigations themselves tend to share some common attributes, including these five:

1. Investigative hearings may be televised or webcast and often result in extensive news media coverage.

2. Such investigations may be undertaken by different organizational arrangements.

These include temporary select committees, standing committees and their subcommittees, specially created subcommittees, or specially commissioned task forces within an existing standing committee.

3. Specially created investigative committees usually have a short life span (e.g., six months, one year, or at the longest until the end of a Congress, at which point the panel would have to be reauthorized for the inquiry to continue).

4. The investigative panel often has to employ additional and special staff — including investigators, attorneys, auditors, and researchers — because of the added workload and need for specialized expertise in conducting such investigations and in the subject matter involved.

Such staff can be hired under contract from the private sector, transferred from existing congressional offices or committees, transferred from the congressional support agencies, or loaned (“detailed”) by executive agencies, including the FBI.

The staff would require appropriate security clearances if the inquiry looked into matters of national security.

5. Such special panels have often been vested with investigative authorities not ordinarily available to standing committees.

Staff deposition authority is the most commonly provided authority, but given the particular circumstances, special panels have also been vested with the authority to obtain tax information, seek international assistance in information gathering efforts abroad, and participate in judicial proceedings related to the investigation (for instance, to enforce a committee-issued subpoena).

The specific authorities granted to some of the most prominent investigations undertaken in recent decades are displayed in Table 1.

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Selected Oversight Techniques

Some oversight techniques — such as conducting hearings with agency officials, receiving reports on agency activities and performance, and scrutinizing budget requests — are relatively straightforward.

There are several techniques for which explanation or elaboration may prove helpful for a better understanding of their utility.

Identifying Relevant Committee Jurisdiction

A basic step in conducting oversight involves identifying the committee(s) with jurisdiction over the policy matter or programs of interest.

The committee jurisdictional statements in House Rule X and Senate Rule XXV specify the subjects that fall within each committee’s jurisdiction.

In general, the rules do not address in detail specific departments, agencies, programs, or laws.

Therefore, multiple committees may exercise some jurisdiction — especially in regard to oversight — over the same departments and agencies or over different elements of the same agency activities.

While the House and Senate Parliamentarians are the sole definitive arbiters of committee jurisdiction, various legislative support agencies (the CBO, CRS, or GAO) may be able to assist committees in identifying the relevant committee(s) of jurisdiction for proposed oversight activities.

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Orientation and Periodic Review Hearings with Agencies

Oversight hearings (or even “pre-hearings”) may be held for the purposes of briefing Members and staff on the organization, operations, and programs of an agency and determining how an agency intends to implement any newly enacted legislation.

Hearings can also be used as a way to obtain information on the administration, effectiveness, and economy of agency operations and programs.

Agency officials can be noticeably influenced by the knowledge and expectation that they will be called before a congressional committee regularly to account for the activities of their agencies.

Such hearings benefit the committee by, for example:

 helping committee members keep up to date on important administrative developments;

 serving as a forum for exchanging and communicating views on pertinent problems and other relevant matters;

 providing background information that could assist members in making sound legislative and fiscal judgments;

 identifying program areas within each committee’s jurisdiction that may be vulnerable to waste, fraud, abuse, or mismanagement; and

 determining whether new laws are needed or whether changes in the administration of existing laws will be sufficient to resolve problems.

The ability of committee members during oversight hearings to focus on meaningful issues and ask penetrating questions will be enhanced if staff have accumulated, organized, and evaluated relevant data, information, and analyses about administrative performance.

Ideally, each standing committee should regularly monitor the application of laws and implementation of programs within its jurisdiction.

A prime objective of the “continuous watchfulness” mandate (Section 136) of the Legislative Reorganization Act of 1946 is to encourage committees to take an active and ongoing role in administrative review and not wait for public revelations of agency and program inadequacies before conducting oversight.

As Section 136 states in part: “each standing committee of the Senate and House of Representatives shall exercise continuous watchfulness of the execution by the administrative agencies concerned of any laws, the subject matter of which is within the jurisdiction of such committee.”

Committee personnel could be assigned to maintain active liaison with appropriate agencies and record their pertinent findings routinely.

Information compiled in this fashion will be useful not only for routine oversight hearings but also for oversight hearings that may be called unexpectedly, perhaps following a public outcry on a particular issue, in which the opportunity to conduct an extensive background study is limited.

It can be important for a committee to direct specific questions to agency witnesses in advance of a hearing so that they will be on notice regarding the kinds of questions the committee wants answered.

This allows witnesses to be more responsive to the committee’s questions and may limit their ability to provide rambling or evasive statements.

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