Samuel L. Bray’s forthcoming Harvard Law Review article, Multiple Chancellors: Reforming the National Injunction, argues that federal courts should eschew issuing nation-wide injunctions, no matter the importance of the question litigated or the value of nation-wide uniformity.  He urges adherence to the principle that injunctions against the federal government should be “plaintiff-protective,” providing relief only to the plaintiff.  The harshness of this rule is moderated by the availability of class actions.  (Even if Prof. Bray’s thesis is correct, constitutional or administrative law principles may require agencies themselves to apply a legal ruling equally to everyone within the relevant court’s jurisdiction, whether or not they have filed an action.)

Bray’s article seems far afield from the Freedom of Information Act (“FOIA”).  However, a recent case highlights the problem Bray’s approach would present in the context of FOIA’s affirmative publication obligations (sometimes called the “reading room” provisions).  FOIA mandates proactive agency publication of several categories of documents.  Section 552(a)(1) requires agencies to publish their organizational chart, procedural rules, and substantive rules of general applicability.  Section 552(a)(2) specifies that agencies publish final adjudicatory opinions, policy statements, and staff manuals that affect the public, inter alia.  At least in part, these reading room provisions are designed to forclose the existence of secret law, binding rules or precedents hidden from the public.  And in an article just published in the Pennsylvania Law Review, Freedom of Information Beyond the Freedom of Information Act, David E. Pozen argues that a proactive disclosure model should be embraced.  He is not the first to make such an observation.

FOIA’s remedy provision grant district courts “jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. §552(a)(4)(B).  In Citizens for Responsibility and Ethics in Washington (“CREW”) v. United States Department of Justice, 846 F.3d 1235 (2017), the D.C. Circuit considered the availability of injunctive relief, under FOIA’s remedy provision and Administrative Procedure Act section 704, to enforce FOIA’s affirmative publication provisions.  CREW sought publication of Office of Legal Counsel (“OLC”) opinions, arguing that section 552(a)(2)’s affirmative disclosure obligations encompassed such materials.  OLC selectively publishes its opinions, publishing those OLC considers “significant” where no countervailing reasons exist for withholding publication.  (Significant opinions are not published when doing so would reveal classified or sensitive national security information, “interfere with federal law enforcement efforts,” or undermine either “internal Executive Branch deliberative processes” or attorney-client confidentiality).  Published OLC opinions can be accessed at https://www.justice.gov/olc/opinions-main.

In a Solomonic decision, the CREW Court held that it could order DOJ to prospectively comply with the reading room requirements by providing CREW with documents and an accompanying index, but could not order DOJ to make such documents and indices publicly available.

The Court was constrained by precedent.  Supreme Court and D.C. Circuit case law have generally established district courts’ wide latitude in fashioning remedies pursuant to FOIA’s remedial provision, including the power to issue injunctive relief.  See, e.g., Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 20 (1974); Payne Enterprises v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988).  But, in Kennecott Utah Copper Corp. v. Department of Interior, 88 F.3d 1191, 1202 (D.C. Cir. 1996), the D.C. Circuit held that FOIA’s remedial provision did not “authorize district courts to order publication” of documents subject to section 552(a)(1)’s affirmative disclosure provisions.  Focusing on the remedial provision’s text, the Court concluded that section 552(a)(4)(B) express power to order “production” of records did not encompass ordering publication of records. Id. at 1203. Thus, it explained, FOIA’s remedial provision, “is aimed at relieving the injury suffered by the individual complainant, not by the general public” as “[i]t allows district courts to order ‘the production of any agency records improperly withheld from the complainant,’ not agency records withheld from the public.” Id.  Using Prof. Bray’s terminology, FOIA’s remedial provision permitted only “plaintiff-protective” relief.  While Kennecott Utah Copper did not reach the affirmative publication provisions of 552(a)(2), its rationale implied a similar result.

In CREW, plaintiff sought an injunction that would have required OLC to make available to the general public all future opinions as well as periodic indices to those opinions.  Given the D.C. Circuit’s Kennecott Utah Copper precedent, CREW sought relief under section 704 of the APA, which makes reviewable “agency action for which there is no other adequate remedy in a court.”  In CREW’s view, Kennecott Utah Copper meant that it lacked a remedy for DOJ’s failure to comply with FOIA’s reading room provision.

The Court held that Kennecott Utah Copper applied to 552(a)(2) reading room obligations just as it applied to 552(a)(1) obligations.  Nevertheless, it concluded that FOIA provided CREW a remedy that supported some form of injunctive relief; nothing in Kennecott Utah Copper precluded a court from ordering an agency to provide plaintiffs, like CREW, the materials and indices section 552(a)(2) required the agency to affirmatively publish.

The Court then considered whether it could order publication of the reading room materials under APA section 704 given the limits on injunctive remedies available under the FOIA (due, in large part, to Kennecott Utah Copper’s holding).  The Court noted that section 704 remedies did not become available merely because the remedy provided under another statute was not identical to that available under section 704.  Rather, it explained, when considering whether an alternative remedy is “adequate” and therefore preclusive of APA review, judges must look for “clear and convincing evidence” of “legislative intent” to create a special, alternative remedy.  Id. at 1244 (citing Garcia v. Vilsack, 563 F.3d 519, 523 (D.C. Cir. 2009) (quoting El Rio Santa Cruz Neighborhood Health Center v. HHS, 396 F.3d 1265, 1270 (D.C. Cir. 2005)).  Where Congress has provided “an independent cause of action or an alternative review procedure,” the D.C. Circuit had found clear markers of legislative intent to preclude use of the APA.  Id., at 1245 (quoting El Rio).  Moreover, Congress’ provision for de novo district-court review of the challenged agency action is particularly telling, given the “incompat[ibility]” between de novo review and the APA’s deferential standards. Id.

The Court quickly concluded that an adequate remedy for reading room violations existed, given FOIA’s provision of an express cause of action that specified de novo judicial review.  And indeed, it saw “no yawning gap” between the relief FOIA affords and that CREW sought under the APA.  Id. at 1246.

The Court did not reach the merits of CREW’s argument; it did not decide whether DOJ had an affirmative obligation to public OLC opinions.  (The opinions are subject to standard FOIA requests under 552(a)(3).)

While the CREW decision was probably the best the panel could do, the personalized remedy it adopted defeats the purpose of the publication requirement, namely ensuring the general public availability of “the governing law.”  Regulated entities unaware of the law due to the agency’s failure to comply with the affirmative publication requirements are protected because sections 552(a)(1) & (2) preclude any sanctions for failure to adhere to unknown law.  See Kennecott Utah Copper, 88 F.3d at 1203.  But that does not help persons or entities deterred from engaging in an activity due to their ignorance of “secret law” that would permit it.  Nor does it help individuals who could have relied on such “secret law” to protect themselves from regulated entities had they been aware of those entities’ “secret law” obligations.  Indeed, for that matter, such “secret law” may interfere with congressional oversight and judicial review.  See Sun Ray Drive-In Dairy v. Oregon Liquor Control Comm’n, 16 Or. App. 63, 73, 517 P.2d 289, 294 (1973).  And a private entity bent on seeking its own advantage could either keep the “secret law” to itself, securing an unfair advantage vis-à-vis others, or perhaps even charge others for access to the information.

Fortunately, if the Court ultimately holds that OLC opinions are covered by FOIA’s affirmative obligation provisions, DOJ will likely find it more efficient to make the materials publicly available rather than produce them on a plaintiff-by-plaintiff basis.

Bernard W. Bell is a Professor of Law and Herbert Hannoch Scholar at Rutgers Law School.