Making Soup from a Single Oyster? CREW v. DOJ and the Obligation to Publish Office of Legal Counsel Opinions (Part III)

by Bernard Bell — Tuesday, May 21, 2019

Summary: This three-post series discusses Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, which affirmed dismissal of a suit to require publication of all Office of Legal Counsel (“OLC”) opinions.  This final post offers tentative thoughts on the applicability of FOIA’s affirmative disclosure requirements to OLC opinions.

Some Thoughts on Whether OLC Opinions are Subject to Mandatory Disclosure

Sections 552(a)(2)(A) and (B) of Title 5 require agencies to publish and index “final opinions” and “orders” made in adjudicated cases, as well as “statements of policy and interpretations” not otherwise published in the Federal Register.  Are OLC opinions subject to mandatory publication as “final opinions,” “statements of policy,” or “interpretations”?[1]

Emperor Nero’s Pillars

Roman Emperor Nero reputedly posted edicts high on pillars so that the public could not easily read their content.[2] Such a practice makes the law inaccessible and thus illegitimate.  Indeed, one of Lon L. Fuller’s renowned eight desiderata for law’s legitimacy is that law must be promulgated or published.[3]  This concern underlies the mandatory disclosure provisions regarding opinions, policy statements, and interpretations.

Thus, the purpose undergirding sections 552(a)(2)(A) – (C) is quite clear — and extends beyond FOIA’s overall imperative of ensuring the public’s right “to know what [its] government is up to.”[4]  The mandatory disclosure provisions reflect “a strong congressional aversion to ‘secret (agency) law,’” and an affirmative congressional purpose to ensure disclosure of documents [that] have ‘the force and effect of law.'”  NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975).[5]  The penalty for the agency’s failure to satisfy its obligations, prohibition on citing such documents against a party unless that party had actual notice, reflects that purpose. [6] As the late Judge David L. Bazelon explained in discussing the interplay between exemption 5 and FOIA’s affirmative disclosure provisions, “at the same time that Congress sought to enhance the process of policy formulation, it indicated unequivocally that the purpose of the Act was to forbid secret law.”  Sterling Drug, Inc. v. FTC, 450 F.2d 698, 713 (D.C.Cir.1971) (concurring in part and dissenting in part) (emphasis in the original).[7]

Confidential OLC opinions appear to present the classic example of secret law.[8]  OLC opinions are the most formal, most rigorously considered, and most authoritative of all opinions issued by Executive Branch lawyers.  The opinions are developed by a rigorous process designed to stand the test of time and serve as precedents.[9]  Indeed, they seem to have the trappings of a body of precedent, akin to judicial decisions.[10]  They seem to follow stare decisis, and, like courts, OLC purports to avoid addressing abstract questions, Memorandum from David J. Barron, Acting Assistant Attorney General to Attorneys of the Office of Legal Counsel, Best Practices for OLC Legal Advice and Written Opinions 3 (July 16, 2010) (“Best Practices Memo”).

The Department of Justice must give substance to some Constitutional provisions that are unlikely to be the subject of litigation as well as statutes constraining Government agencies.[11]   Thus, OLC opinions often serve as the final word on issues rarely considered by courts.  They can essentially immunize conduct from punishment.[12]  And they will be followed by the Department of Justice in taking legal positions and viewed as constraints by the agencies that receive them.

Perhaps going a bit beyond the specific purposes of the mandatory publication provisions, publication of OLC opinions might well provide critical information Congress needs to decide whether it should revise statutes, either to permit the Government to engage in an activity that OLC considers unauthorized or to prohibit the Government from engaging in an activity that the Department of Justice authorizes.

However, OLC opinions do not directly bind the public, they bind only government agencies.  The public can contest OLC’s legal conclusions; obviously courts can reject OLC’s opinions.[13]  Nevertheless, awareness of the opinions is necessary for effective advocacy in agency processes.  By serving as constraints on agencies, much like the constitutional provisions and statutes they interpret, OLC opinions limits agencies’ responses to citizens, either regulated entities or beneficiaries. Members of the public involved in agency proceedings cannot dispute agencies’ potential misapplication of principles enunciated in secret OLC opinions.  And citizens unaware of the external constraints placed upon the agency, such as Department of Justice legal positions, cannot develop an effective strategy for complying with an agency’s requirements.

Countervailing Considerations: OLC Exceptionalism?

There are at least three reasons for caution before concluding that OLC opinions should be considered subject to mandatory disclosure.[14]  First, the relevant statutory text suggests that OLC opinions qualify as neither “opinions” resolving adjudications, statements of policy, nor interpretations. Second, the tension between exemption 5 and FOIA’s mandatory publication requirements is uniquely severe in the context of OLC opinions.  Third, congressionally-mandated disclosure of OLC opinions raises separation of powers concerns given the unique role OLC opinions play in facilitating the President’s performance of his constitutional obligations.

Textual Analysis

OLC opinions do not comfortably fit within the APA’s definition of “adjudication” and “order.” In her dissenting opinion in Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, — F.3d. —, 2019 WL 1907230 (D.C. Cir. April 30, 2019)(“CREW II”), Judge Pillard suggested that OLC opinions resolving interagency disputes might qualify as opinions resolving agency adjudications, id. at *7.  Some OLC opinions may resolve disputes between agencies, but many do not.

Aadjudication” and “order” are defined terms in the APA.  5 U.S.C. §551(6) & (7).  “[A]djudication” is defined, somewhat unhelpfully, to mean “agency process for the formulation of an order.”  In turn, “order” is defined as “the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing.”[15]  The definitions of “adjudication” and “order” are admittedly quite capacious, and could include OLC resolution of interagency disputes regarding their powers and obligations, and much more.

The Attorney General’s Manual on the Administrative Procedure Act discusses the concept of “adjudication.”[16]  The Manual elaborated on the term “adjudication” as follows:

Adjudication is concerned with the determination of past and present rights and liabilities. Normally, there is involved a decision as to whether past conduct was unlawful, so that the proceeding is characterized by an accusatory flavor and may result in disciplinary action. Or, it may involve the determination of a person’s right to benefits under existing law so that the issues relate to whether he is within the established category of persons entitled to such benefits. In such proceedings, the issues of fact are often sharply controverted.

Id. at 14-15.  The Attorney General provided five examples of proceedings encompassed within the term “adjudication”: (1) proceedings for cease and desist orders regarding unfair methods of competition or unfair labor practices, (2) determination of monetary claims, (3) determinations of shipper’s or other consumer’s entitlement to damages arising out of the alleged past unreasonableness of rates, (4) determination of individual claims for benefits, and (5) licensing proceedings.  Id. at 15-16.

OLC opinions do not appear to fit comfortably within either the description of adjudication or the set of examples provided.  The examples all seem to involve factual development, mostly of historical fact, and resolution of the dispute based on such findings. Moreover, all seem to involve resolving disputes between the government and private entities, either regulated entities or program beneficiaries.  Providing legal guidance to a governmental entity is quite distinct from these examples.    Indeed, OLC opinions do not address past behavior — they are intended to operate prospectively, and they sometimes suggest alternative approaches consistent with the relevant law as OLC interprets it, for agencies to achieve their objectives.  Best Practices Memo at 3.[17]

OLC opinions might seem to qualify as statements of policy or interpretation.  But, as the Attorney General’s Manual explains, the critical aspect of both categories of documents is their “formulat[ion] and adopt[ion] by the agency for the guidance of the public.”  Manual at 22.  FOIA’s revision of APA section 3 (i.e., 5 U.S.C. §552) removed agency discretion with respect to withholding interpretations and policy statements from publication, but did not meaningfully alter the definition of those concepts.

While FOIA does not define “statements of policy” and “interpretation,” FOIA’s mandatory disclosure provisions complement the provisions regarding notice and comment requirements for informal rulemaking set out in 5 U.S.C. §553.  Section 553 exempts statements of policy and interpretive rules from the notice and comment rulemaking requirements, particularly the requirement to publish in the Federal Register notices of proposed rulemaking and of the final rule adopted. The mandatory disclosure provision requires that when an agency chooses not to publish a statement of policy or interpretation in the Federal Register, a choice which section 553 permits, it must make such statements of policy and interpretations accessible to the public by other means.  This account of the relationship between section 553 and section 552(a)(2), explains the mandatory disclosure provision’s distinct treatment of staff manuals, which are explicitly made subject to mandatory disclosure only if they effect members of the general public. Compare §552(a)(2)(C) with §552(a)(2)(B).  This qualification is unnecessary with respect to statements of policy and interpretations because implicit in those categories of documents is their issuance to guide members of the public.

In explicating section 553, the Attorney General’s Manual also makes clear the implicit limitations that only those documents that provide guidance to the public qualify as statements of policy or interpretations.  The Manual provides a definition of the terms statements of policy and interpretive rules.  The Manual defines interpretive rules as rules or statements issued by an agency to advise the public of the agency’s construction of the statutes and rules which it administersManual at 30 n.3.  The definition not only encompasses “rules,” but other types of interpretive statements as well.  The explanation emphasizes that the purpose of the statements must be to advise the public regarding the agency’s interpretation.  And finally, interpretation involves construction of the statutes or rules the agency administers.  OLC opinions are issued to advise agencies, not the general public.  Moreover, OLC often offers opinions construing the U.S. Constitution, and even when it renders opinions on statutes, such statutes would rarely be ones OLC can be said to “administer.”

The Manual defines statements of policy as “[s]tatements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise discretionary power.”  Id.  This definition certainly does not describe OLC opinions, which have nothing to do with any “discretionary power” OLC possesses.

In short, the statutory text suggests that OLC decisions fall outside of section 552(a)(2)(A) & (B)’s mandatory disclosure requirements.

Inherent Conflict Between Exemptions and Mandatory Disclosure Requirements

FOIA’s exemptions were designed to allow the government to withhold certain types of information.  Exemption 5 encompasses a set of privileges that include the attorney-client privilege, the deliberative process privilege, and the presidential communications privilege (otherwise known as executive privilege).  As noted in Part II of this series, the better view is that the mandatory disclosure provisions are not subject to limitations to protect information the agency could withhold when responding to FOIA requests.  Such an approach is practical only if one assumes that in issuing opinions, policy statements, and interpretations, agencies can draft in such a manner as to avoid including matters that should be withheld pursuant to FOIA’s nine exemptions.  But OLC cannot draft around material that needs protection under exemption 5.

Virtually every OLC opinion will be covered by both the attorney-client privilege and the deliberative process privilege.  OLC cannot draft opinions in such a manner as to avoid divulging matters protected by those privileges; by their nature the documents fall within the exception.  And indeed, OLC exercises discretion with regard to publication in at least one respect to encourage agencies to seek legal advice, the attorney-client privilege’s raison d’etre.[18]  OLC’s exercise of discretion is precisely designed to secure for agency officials their ability to seek legal counsel and engage in deliberative discussions.

Moreover, some OLC opinions are rendered at the request of the President or senior White House advisors.[19]  Requiring mandatory publication of such opinions clearly clashes with the President’s need to obtain confidential advice, a core concern underlying the presidential communications privilege.  Requiring publication of such documents will directly interfere with the President’s ability to secure advice.[20]  Thus, even if OLC opinions were generally subject to mandatory publication obligations, the subset of opinions covered by the presidential communications privilege should not, absent clear language to the contrary.[21]

Thus, OLC opinions are arguably particularly inappropriate for coverage by the mandatory disclosure provisions. Construing the ambiguous mandatory disclosure provision to avoid bringing OLC opinions within their compass would ensure that Congress’ intent to protect certain exemption 5 privileges, namely the attorney-client privilege, the deliberative process privilege, and the privilege of presidential communications, remains intact.

OLCs Relationship to the President

The nature of OLC’s responsibilities and its relationship to a core presidential duty, to take care that the laws be faithfully executed, arguably makes OLC’s opinions uniquely unsuited for mandatory publication.  OLC views its work in general, and its opinions in particular, as providing assistance to the President in exercising his constitutional responsibility to see that the laws are faithfully executed.  Id. at 1, 5.  OLC not only uses opinions to advise the President and senior White House advisors of constitutional and statutory requirements, they also resolve inter-agency disagreements regarding the law and ensure that agency officials are aware of the legal constraints on their actions.  While every agency acts under an obligation to faithfully execute the law, and thus must determine what that law is, OLC’s role in determining the constitutional and statutory constraints on the executive branch may be unique among agencies.  Given the central nature of OLC opinions in enabling the President to acquit one of his core constitutional responsibilities, courts should perhaps be wary of applying FOIA’s mandatory disclosure provisions to such opinions.

Conclusion

The applicability of FOIA’s mandatory disclosure provisions to OLC opinions remains unresolved. OLC opinions appear to be a classic example of secret law that the FOIA’s mandatory disclosure provisions were intended to do away with.  But there are significant countervailing arguments, most notably the inherent conflict between Exemption 5 and the mandatory disclosure provisions in the context of OLC opinions.  Rather than leaving courts the burden of construing a mandatory disclosure provision ill-suited to resolve the status of OLC opinions, Congress should enact more precise legislation specifying whether all or some OLC opinions should be subject to a mandatory disclosure regime.


[1] The first two posts in the series, summarizing Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, — F.3d. —, 2019 WL 1907230 (D.C. Cir. April 30, 2019), and critiquing the decision, can be accessed here and here.

[2] ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 17 (1997).

[3] LON L. FULLER, THE MORALITY OF LAW (1964).

[4] U.S. v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 772-73 (1989)(quoting EPA v. Mink, 410 U.S. 73, 105 (1973)(Douglas, J., dissenting), in turn quoting Henry Steele Commager,  The Defeat of America, THE NEW YORK REVIEW OF BOOKS, Oct. 5, 1972, at 7).

[5] Accord, Attorney General’s Memorandum on the 1974 Amendments to the Freedom of Information Act 19 (Feb. 1975), reprinted in FREEDOM OF INFORMATION ACT AND AMENDMENTS OF 1974 SOURCEBOOK, Appendix II (subsection (a)(2)’s “primary purpose” of was to compel disclosure of what has been called ‘secret law,’ or as the 1966 House Report put it, agency materials which have ‘the force and effect of law in most cases'” (quoting H.R. Rep. No. 89-1497, at 7)); Skelton v. USPS, 678 F.2d 35, 41 (5th Cir. 1982) (“That [proactive disclosure] requirement was designed to help the citizen find agency statements ‘having precedential significance’ when he becomes involved in ‘a controversy with an agency.'” (quoting H.R. Rep. No. 89-1497, at 8 (1966)).

[6] The penalty provision states:

A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if—

(i) it has been indexed and either made available or published as provided by this paragraph; or

(ii) the party has actual and timely notice of the terms thereof.

[7] Judge Bazelon cites KENNETH. DAVIS, ADMINISTRATIVE LAW TREATISE § 3A.21 at 159 (1970 Supp.)(“[t]he governing principle, which I think is without exception, is that secret law is forbidden”).

[8] One scholar has described the body of OLC and Attorney General opinions as “the largest body of official

Interpretation of the Constitution and statutes outside the volumes of the federal court reporters.”  John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 CARDOZO L. REV. 375, 376 (1993).

[9] See Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 COLUM. L. REV. 1448, 1470-1492 (2010).  The process is described in Memorandum from David J. Barron, Acting Assistant Attorney General to Attorneys of the Office of Legal Counsel, Best Practices for OLC Legal Advice and Written Opinions 3 (July 16, 2010) (“Best Practices Memo”).

[10] Sometimes, attorney general opinions are described as “quasi-judicial.”  Peter E. Heiser, Jr., The Opinion Writing Function of Attorneys General, 18 IDAHO L. REV. 9, 18 (1982)(citing 2 THORNTON ON ATTORNEYS AT LAW §728 (1914))): Nancy V. Baker, Who Was John Yoo’s Client? Torture Memos and Professional Misconduct, 40 PRESIDENTIAL STUDIES QUARTERLY 750, 758 (2010)(same).

[11] Best Practices Memo, at 1 (OLC “is frequently asked to opine on issues of first impression that are unlikely to be resolved by the courts—a circumstance in which OLC’s advice may effectively be the final word on the controlling law”).

[12] JACK GOLDSMITH, THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION Paperback 149-50 (2009).

[13] See Morrison, supra note 9, at 1466.

[14] While generally supporting increased transparency of OLC opinions, Cornelia Pillard outlines some of the risks attendant routine publication of all OLC opinions.  Cornelia T. L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103 MICH. L. REV. 676, 749-51 (2005).

[15] The terms “rule” and “rulemaking” are defined in 5 U.S.C. §§551(4) and 551(5) respectively.

[16] THE ATTORNEY GENERAL’S MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 14-16 (1947)(Wm. W. Gaunt & Sons, Inc. 1973 reprint).

[17] See Morrison, supra note 9, at 1465.

[18] As noted in Part I of this series, OLC frequently withholds publication of legal opinions that find an agency’s proposed course of action illegal and which causes the agency to desist. See, Best Practices Memo, at 6.

[19] See Douglas W. Kmiec, OLC’s Opinion Writing Function: The Legal Adhesive For a Unitary Executive, 15 CARDOZO L. REV. 337 353-59 (1993); see Dawn E. Johnson, Faithfully Executing The Laws: Internal Legal Constraints On Executive Power, 54 UCLA L. REV. 1559, 1577 ()(“[a] relatively high percentage of OLC’s work comes from the White House or otherwise involves the White House”).

[20] E.g., Judicial Watch, Inc. v. United States Department of Defense, 245 F. Supp. 3d 19, 28-31 (D.D.C. 2017), aff’d, 913 F.3d 1106 (2019); Electronic Privacy Information Center v. Dep’t of Justice, 320 F. Supp. 3d 110, 115-18 (D.D.C. 2018).

[21] Note, in the context of application of the APA’s judicial review provision, the Supreme Court has held that the President is not an “agency” for purposes of the APA.  Franklin v. Massachusetts, 505 U.S. 788, 800-801 (1992); accord, Dalton v. Specter, 511 U.S. 462, 470 (1994).  And in the context of applying FOIA’s reactive disclosure provisions, the D.C. Circuit has held that many units within the Office of the President are not “authorities” covered by FOIA.  See, Armstrong v. Executive Office of the President, 90 F.3d 556, 558-65 (1996); H.R. Rep. 93-1380 at 15 (1974); Soucie v. David, 448 F.2d 1067, 1077 (D.C. Cir. 1971)(distinguishing White House components that solely serve to advise and assist the President from a component given statutory responsibility evaluating federal programs).

Leave a Reply

Your email address will not be published. Required fields are marked *