Summary
The D.C. Circuit addresses whether formal opinions issued by the Department of Justice’s Office of Legal Counsel must be disclosed under the Freedom of Information Act’s reading-room provision. The court holds that FOIA does not require disclosure of the OLC opinions sought by Campaign for Accountability, affirming in part and reversing in part the district court’s judgment. The case concerns opinions resolving interagency disputes, interpreting nondiscretionary legal duties, and adjudicating or determining private rights.
Topics
Practice areas
Questions Presented
- Whether CfA had standing to seek disclosure of OLC opinions under FOIA's reading-room provision.
- Whether OLC opinions resolving interagency disputes are final opinions made in the adjudication of cases under 5 U.S.C. § 552(a)(2)(A).
- Whether OLC opinions concerning the adjudication or determination of private rights are final opinions made in the adjudication of cases under 5 U.S.C. § 552(a)(2)(A).
- Whether OLC opinions concerning interagency disputes, private rights, or non-discretionary legal duties are statements of policy or interpretations adopted by an agency under 5 U.S.C. § 552(a)(2)(B).
- Whether DOJ's deliberative-process-privilege defense required resolution.
Holdings
- CfA had standing because it requested specific OLC records, was denied access, and alleged that the denial harmed its core programmatic activities.
- OLC opinions resolving interagency disputes or concerning private rights are not final opinions made in the adjudication of cases under FOIA's reading-room provision.
- OLC opinions are not categorically or automatically adopted by client agencies merely because they are controlling, authoritative, binding, or issued after an agency's commitment to conform its conduct to OLC's conclusion.
- The court did not reach whether FOIA Exemption 5's deliberative-process privilege protects the requested OLC opinions.
Key quotations
“In short, OLC opinions are not “orders” — they do not “order anybody to do anything.”” (at 20-21)
“An OLC opinion [that includes statements of policy and interpretations] qualifies as the working law of an agency only if the agency has adopted the opinion as its own.” (at 24)
“To be sure, in individual instances, an agency might “in practice” treat an OLC opinion as “an authoritative Agency decision[] in the case[] to which [it is] addressed,” and use it to “guide subsequent Agency rulings.”” (at 28-29)
Factual background
The Office of Legal Counsel provides formal legal opinions to executive-branch agencies and officials, and agencies customarily treat those opinions as controlling legal advice. OLC opinions may address interagency disputes, non-discretionary legal obligations, or the private rights of individuals, but OLC generally gives prospective advice and does not itself implement agency policies or adjudicate private rights. Campaign for Accountability sought disclosure of those categories of opinions under FOIA's reading-room provision, and DOJ refused to disclose them.
Procedural history
Campaign for Accountability sued DOJ in 2016 under FOIA's reading-room provision seeking disclosure of OLC opinions. The district court initially dismissed the broad complaint, after which CfA filed an amended complaint concerning three categories of opinions. The district court dismissed the claims concerning private rights and non-discretionary duties, but later granted CfA summary judgment on the claim involving interagency-dispute opinions. The D.C. Circuit affirmed the dismissals, reversed the summary judgment ruling, and remanded for dismissal of the remaining claim.
Remand instructions
Remand to the district court to dismiss CfA's claim concerning disclosure of OLC opinions resolving interagency disputes. The dismissals of the claims concerning private rights and non-discretionary legal duties are affirmed.