WASHINGTON – In a ruling issued late last night, a federal district court held that nearly a quarter of all Office of Legal Counsel opinions sent to outside agencies likely fall within the provision of the Freedom of Information Act requiring proactive disclosure of agency records to the public. The case is being litigated by the Knight First Amendment Institute at Columbia University on behalf of the Campaign for Accountability.
“This is a groundbreaking decision for government transparency,” said Alex Abdo, Litigation Director at the Knight First Amendment Institute. “The Office of Legal Counsel’s opinions have essentially the same weight within the executive branch as the Supreme Court’s opinions do. The government’s refusal to make these opinions available to the public as a matter of course is both undemocratic and unlawful.”
The Justice Department’s Office of Legal Counsel (OLC) provides “formal written opinions” to federal agencies on issues ranging from national security to retirement benefits for federal employees to the lawfulness of immigration policy. Recently, the Trump administration relied on OLC opinions to justify its refusal to comply with subpoenas issued by the House of Representatives in its impeachment inquiry. The OLC’s formal opinions function as the authoritative law of the government, determining the policies and practices of all executive branch agencies, but OLC does not believe it has any affirmative obligation to release these opinions to the public.
The lawsuit contends that the OLC’s formal written opinions are subject to the Freedom of Information Act’s (FOIA's) “reading-room provision,” which obligates agencies to proactively process certain documents for release even in the absence of a specific request. In October 2017, the district court granted the government’s original motion to dismiss but afforded the Campaign for Accountability an opportunity to focus more narrowly on specific categories of OLC opinions. The Knight Institute filed an amended complaint highlighting several categories of OLC opinions — those (i) resolving interagency disputes; (ii) interpreting nondiscretionary legal obligations; (iii) finding particular statutes unconstitutional; and (iv) adjudicating or determining individual rights.
In yesterday’s ruling, the court found that OLC opinions resolving interagency disputes are likely “final opinions” and “statements of policy and interpretations” that must be proactively disclosed to the public. The OLC issues these opinions when a dispute between two or more federal agencies turns on a disagreement over how to interpret the law. According to at least one estimate, about a quarter of all OLC opinions sent to outside agencies fall into this category.
“While continuing to believe there is no place for secret law in a democracy, we’re pleased the court recognized that OLC opinions resolving interagency disputes qualify for public disclosure,” said Michelle Kuppersmith, Executive Director of the Campaign for Accountability.
A related case, Francis v. DOJ, brought by the Knight Institute on behalf of five scholars and the Campaign for Accountability, seeks OLC “formal written opinions” issued by the agency prior to 1994. In the past, the OLC has avoided complying with FOIA requests for its opinions by invoking a privilege that protects government deliberations. In 2016, Congress amended FOIA to eliminate that privilege for records over 25 years old. In response to that lawsuit the OLC has released more than 200 opinions, all of which the Knight Institute has made available in a text-searchable reading room. The Institute expects to receive more opinions in October.
“These memos are crucial to the public’s ability to understand government policy and hold government decisionmakers accountable for their decisions,” said Anna Diakun, Staff Attorney at the Knight First Amendment Institute. “The public is entitled to know what law is governing the Executive Branch, not just the small fraction of it that the OLC wants it to know.”
Read yesterday’s opinion here.
Read more about the lawsuit here.
In addition to Abdo, lawyers on the case include Jameel Jaffer, Executive Director of the Knight Institute. Daniela Nogueira and Greg Margolis worked on the case during their terms as legal fellows at the Institute.
For more information, contact: Lorraine Kenny, Communications Director, firstname.lastname@example.org