Federal Court Says Office Of Legal Counsel Must Proactively Release Opinions Covering Interagency Disputes

Legal Issues

from the narrow-victory-but-possibly-more-wins-on-the-way dept

The federal government’s Office of Legal Counsel (OLC) tells government agencies what they can and can’t do under existing law. Its interpretation of these laws may vary significantly from how they’ve been interpreted by courts. The OLC has been asked to justify everything from warrantless searches to extrajudicial killings. The bespoke law interpretations that justify these actions are then withheld from the public — often for decades at a time.

The OLC has refused to turn these over to FOIA requesters, citing a number of FOIA exemptions. It does this with older decisions as well — ones Congress has said must be released to the public. 2016’s amendment of the Freedom of Information Act prohibits agencies from withholding “deliberative” records — which is much of what the OLC produces — that are over 25 years old. The OLC violated this change in the law immediately, prompting a lawsuit by the Knight Institute that the Institute ultimately won.

But it wasn’t the only lawsuit brought against the OLC by the Knight Institute over FOIA violations. The OLC was also sued for violating the “reading-room provision,” which obligates agencies to process and release certain documents, even in the absence of a FOIA request for these documents. The OLC has refused to do this. The court said the OLC’s refusal to comply was good and lawful, but only for some subsets of its document stash. The litigation continued to determine what was exempt and what was subject to proactive release.

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.

The court has now handed down its ruling [PDF] and it agrees with the Knight Institute and its co-plaintiff, Campaign for Accountability (CfA) on one category of OLC opinions:

[F]or now, the Court finds that CfA’s amended complaint contains a plausible allegation that OLC is required to make its opinions that resolve inter-agency disputes available for “public inspection” under section 552(a)(2) of the FOIA, for the reasons explained above, and that the other categories of OLC opinions identified in the amended complaint do not plausibly violate the FOIA’s reading-room provision.

The court says these documents are likely “final opinions” (which would make sense, since they “resolve disputes”) and subject to the proactive release obligations contained in the “reading-room provision.” This could prompt a flood of releases. The Knight Institute estimates these resolution opinions make up about a quarter of all opinions sent by the OLC to other agencies.

Then again, it may not result in much of anything. The OLC spent most of the Obama years watching its workload dwindle as agencies became more worried about the possibility of legal opinions being released to FOIA requesters than with ensuring their actions were lawful. OLC opinions dropped from ~30/year at the beginning of Obama’s presidency to less than 10/year by 2015. The end result of years of litigation could be a small handful of opinions that won’t do much to inform the public about how the OLC interprets existing laws.

But the precedent set here is worth celebrating. An entire category of OLC opinions has been declared subject to proactive release by the Office. And that’s a much-needed improvement.

Filed Under: foia, legal interpretations, office of legal counsel, olc, secret law, transparency