Summary: This three-part series discusses a recent D.C. Circuit opinion affirming dismissal of a claim that FOIA mandates publication of all Office of Legal Counsel (“OLC”) opinions.  This post summarized OLC’s publication practices and the D.C. Circuit case — Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice.  Succeeding posts will critique the decision and offer tentative thoughts on the applicability of FOIA’s affirmative disclosure requirements to OLC opinions.

The Office of Legal Counsel’s Publication Practices

Since 1789, the Attorney General has possessed explicit statutory authorization “to give his advice and opinion upon questions of law when required by the President of the United States, or . . . the heads of any of the departments.” [1] The Attorney General has largely delegated that authority to the Office of Legal Counsel (“OLC”). See 28 C.F.R. § 0.25.  OLC, or its predecessor, has existed as a distinct entity since 1933.[2]  In drafting formal opinions (as well as in performing its other advisory functions) OLC assists the President in fulfilling his Constitutional duty to “take care that the laws be faithfully executed,” U.S. Const. art. II, §3, cl. 5.[3]

The Office of Legal Counsel (“OLC”) publishes some, but not all, of its formal legal opinions. Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, — F.3d. —, 2019 WL 1907230 at *2 (D.C. Cir. April 30, 2019)(“CREW II”).  OLC most recently enunciated the factors it considers in making publication decisions and its process for doing so in 2010.  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 5–6 (July 16, 2010) (hereinafter Best Practices Memo).[4]

According to the Best Practices Memo, OLC employs a presumption that it should make “significant opinions fully and promptly available to the public.” Best Practices Memo at 5.[5]  In determining whether an opinion is sufficiently significant, OLC considers “[1] the potential importance of the opinion to other agencies or officials in the Executive Branch; [2] the likelihood that similar questions may arise in the future; [3] the historical importance of the opinion or the context in which it arose; and [4] the potential significance of the opinion to the [OLC]’s overall jurisprudence.”  Id.   OLC has identified one subset of legal opinions as particularly worthy of “[t]imely publication,” opinions declaring a federal statutory requirement unconstitutional that prompt the Executive Branch to disregard the statute. Id.

Several “countervailing considerations” may overcome OLC’s presumption favoring publication.  Id.  Such considerations include concerns regarding: (1) disclosure of “classified or other sensitive information relating to national security,” (2) interference with federal law enforcement efforts, (3) violating legal prohibitions on disclosure of information, and (4) undermining internal Executive Branch deliberative processes or the confidentiality of information covered by the attorney-client privilege.  Id. at 5-6.  To illustrate the fourth concern, OLC notes its exercise of discretion in frequently withholding publication of legal opinions that find an agency’s proposed course of action illegal and causes the agency to desist.[6]  Routine publication of such opinions would, in OLC’s estimation, make “Executive Branch officials reluctant to seek OLC advice in the early stages of policy formulation,” to the detriment of rule-of-law interests.  Id. at 6.  When a mere delay in publication adequately addresses any concerns counseling withholding publication, “OLC reconsider[s] the publication decision at an appropriate time.” Best Practices Memo at 6.

OLC’s process for making the publication decision appears relatively straightforward.  The OLC attorneys who draft and review an opinion submit recommendations regarding its appropriateness for publication.  Id. at 5.  After reviewing those submissions, OLC’s internal publication review committee makes a preliminary determination.  Id. If the committee favors publication, it solicits the views of the official or agency that requested OLC’s opinion as well as “any other agencies whose interests might be affected by publication.” Id.  OLC considers such consultation an important means for ensuring awareness of countervailing considerations warranting withholding publication.   Id.  After reviewing these submission OLC reaches a final judgment regarding publication.  Id.

CREW v. DOJ

CREW filed suit to compel disclosure of the OLC’s unpublished formal written opinions, relying upon FOIA’s affirmative disclosure provision — 5 U.S.C. § 552(a)(2).  CREW II, at *2.[7]  That section imposes on agencies an affirmative obligation to publish: (1) “final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases,” and (2) “those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register.”[8]

The District Court dismissed CREW’s Complaint for failure to state a claim, given that CREW’s had “premised” its Complaint on the “universal claim” that OLC must publish all of its formal opinions.”  CREW II, at *3. Such a categorical claim which would fail “if the [Department of Justice] [could] identify any formal written opinions not subject to FOIA disclosure.”  Id. (quoting Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 298 F.Supp.3d 151, 154 (D.D.C. 2018)).  And DOJ could certainly do so; the D.C. Circuit had already held, in Electronic Frontier Foundation v. United States Department of Justice, 739 F.3d 1 (D.C. Cir. 2014) (Electronic Frontier), that only OLC opinions adopted by the receiving agency were subject to disclosure under FOIA. CREW II, at *3.[9]  Only opinions so adopted would become part of the agency’s “working law.”  CREW v. DOJ, 298 F.Supp.3d at 155. [10]

A split panel affirmed.

The Majority

The majority began with a non-controversial proposition — to state a cause of action entitling it to an order requiring publication of OLC opinions, CREW had to plead that OLC had “improperly” failed to comply with FOIA’s “mandatory disclosure requirements.”  CREW II, at *3 (quoting U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 150 (1989)).  However, in applying that simple proposition the majority reached a startling conclusion — CREW had to plead that all OLC opinions constituted the “working law” of the recipient agencies.  Id.  Under Electronic Frontier, an OLC opinion could qualify as an agency’s working law only if the recipient agency had “adopted” it.  Id.  Thus, in the majority’s view, “the dispositive question” was “whether CREW ha[d] plausibly alleged” that all of OLC’s formal written opinions had been adopted by the recipient agencies as their own “working law.”  Id.  The majority noted that CREW’s complaint made no such allegation; CREW’s allegations, that OLC opinions are “controlling,” “authoritative” and “binding,” were insufficient. Id. at *4.

The majority devoted the remainder of its opinion to rebutting three primary arguments.  First, the majority addressed CREW’s assertion that it had “erroneously plac[ing] on CREW the burden of identifying [the] subset of the OLC’s formal written opinions” subject to FOIA’s affirmative disclosure obligations.  Id.  Acknowledging FOIA’s requirement that agencies justify a failure to disclose documents,[11] the majority explained that such an obligation arose only after plaintiffs like CREW had satisfied their “antecedent” obligation of pleading a plausible claim sufficient to survive a motion to dismiss.  Id.

The majority noted that the D.C. Circuit had imposed an analogous pleading requirement for claims to enforce FOIA’s reactive provision, requiring agencies to provide records responsive to FOIA requests.  Id. at *5. In particular, the D.C. Circuit had required such plaintiffs “to allege that [they had] made a procedurally compliant request”; only after a plaintiff has so pleaded was the agency required to take up the burden of justifying its actions.  Id.  The majority noted that an agency’s affirmative disclosure obligations did not “turn[]. . .on the existence of a plaintiff’s request but on the nature of the records.”  Id.  Thus, rather than alleging a procedurally-compliant request, a claim for violation of the affirmative disclosure requirements must “allege sufficient factual material about the opinions that . . . would place them into one of § 552(a)(2)’s enumerated categories.”  Id.

Second, the majority rejected the dissenter’s criticism of its reliance on Electronic Frontier.  It acknowledged that Electronic Frontier was not an affirmative disclosure case, like CREW II, but involved the scope of an exemption invoked by an agency in a reactive disclosure case.  Id.  Nevertheless, the majority explained, in resolving that question, the Court had ruled that an OLC opinion does not attain the status of an agency’s “working law” unless the agency adopts it as such.  Thus, not only could un-adopted OLC legal opinions be withheld in response to a FOIA request, they were also not be subject to FOIA’s affirmative disclosure provisions. Id.

Third, the majority dismissed CREW’s argument that requiring it to identify a subset of the OLC’s formal written opinions subject to mandatory disclosure unfairly imposed an impossible burden.  To the majority, CREW’s predicament was “self-inflicted.”  Id. at *6.  CREW had rejected the District Court’s invitation to amend its Complaint.  Moreover, CREW “would have had no difficulty carrying its pleading burden” had it “proceeded under FOIA’s reactive provision, §552(a)(3), and requested formal written opinions the OLC issued on specific subjects.”  Id.

Judge Pillard’s Dissent

Judge Pillard characterized CREW’s assertion that OLC had to publish all of its formal legal opinions as nothing more than a potentially overbroad request for relief.  Id. at *8.  She argued that the majority’s view that CREW could have proffered “a more tailored request” for relief could not justify dismissing the Complaint; an overly ambitious remedial request does not invalidate a plausibly alleged legal claim.  Id. at *9.

To her, CREW’s complaint was quite clear.  CREW sought an order compelling OLC to publish those formal legal opinions “that fall within the definition of what the government is required to publish under the [affirmative disclosure] provision.”  Id.  At the Rule 12(b)(6) stage, CREW’s burden is modest, namely plausibly pleading that at least some OLC opinions are “working law” and are therefore must be published.  Id. (emphasis added).  The government, not plaintiff, had to allege as well as show, that some or all of the documents sought are subject to a FOIA exemption.  Id.

Judge Pillard argued that CREW had met its burden.  CREW had adequately alleged that OLC’s resolution of disputes between agencies qualified as “final opinions” in adjudicated cases.  Id. at *7.  CREW had also plausibly alleged that in providing “authoritative” legal advice considered “binding” within the executive branch, OLC’s legal opinions were section 552(a)(2) “interpretations” that had been “adopted by the agency.”  Id.  She considered CREW’s allegations buttressed by OLC’s own “Best Practices Memo [which explains] that OLC provides opinions to independent agencies only if they have agreed to be bound by—i.e., will adopt—OLC’s advice.”  Id. at *8.

Judge Pillard acknowledged Electronic Frontier, but observed that in relying upon it the majority had “made too much soup from one oyster.” Id.  Electronic Frontier could defeat CREW’s claims only if the Court were certain the case shielded every OLC opinion from disclosure.  Judge Pillard noted that neither the government nor the majority had made such a claim.

Judge Pillard criticized the alternatives means of proceeding the majority had urged upon CREW, namely amending its Complaint to add precision or seeking documents under FOIA’s reactive provision.  Neither would vindicate CREW’s claim that OLC was disregarding FOIA’s affirmative publication requirements.  Id. at *9.  She noted that another plaintiff seeking to obtain an order requiring publication of OLC opinions had amended its Complaint, and identified five subcategories of OLC opinions.  The categories were “[o]pinions resolving interagency disputes,” “[o]pinions issued to independent agencies,” “[o]pinions interpreting non-discretionary legal obligations,” “[o]pinions finding that particular statutes are unconstitutional and that therefore agencies need not comply with them,” and “[o]pinions adjudicating or determining private rights.”  Id.  As of yet, the plaintiff in that case, Campaign for Accountability, had fared no better than CREW.  Id.

Nor would pursuing reactive disclosure hone in on enforcing OLC’s affirmative obligations. After all, she said “[t]he point of the [mandatory disclosure] provision . . . is to put the burden on agencies to make their ‘working law’ readily available, without request, to anyone who might want to read it.”  Id. at *9 (emphasis added).

[1] Judiciary Act of 1789, § 35, 1 Stat. 73, 93 (codified as amended at 28 U.S.C. §§ 511–513).  The power and responsibility of attorneys general, including issuing legal opinions, have deep historical roots.  Peter E. Heiser, Jr., The Opinion Writing Function of Attorneys General, 18 IDAHO L. REV. 9, 9 (1982). Neal Devins & Saikrishna Bangalore Prakash, Fifty States, Fifty Attorneys General, And Fifty Approaches To The Duty To Defend, 124 YALE L.J. 2100, 2124-27 (2015).  Thus, not only does the Attorney General of the United States have such responsibilities, so do the attorneys general of the states.  Heiser, supra, at 9; Devins & Prakash, supra, at 2126.

[2] Douglas W. Kmiec, OLC’s Opinion Writing Function: The Legal Adhesive For a Unitary Executive, 15 CARDOZO L. REV. 337 (1993); see, Nancy V. Baker, Who Was John Yoo’s Client? Torture Memos and Professional Misconduct, 40 PRESIDENTIAL STUDIES QUARTERLY 750, 758 (2010).

[3] 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 1, 5 (July 16, 2010); Walter Dellinger, Principles to Guide the Office of Legal Counsel 1 (December 21, 2004).

[4] The Memorandum supersedes the initial version of the Best Practices Memorandum, issued in 2005. Memorandum from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Best Practices for OLC Legal Advice and Written Opinions (May 16, 2005), which appears to incorporate a statement of principles drafted by a group of former OLC lawyers led by  Walter Dellinger, Principles to Guide the Office of Legal Counsel (December 21, 2004) ).  The 2010 version of the memorandum appears to reduce the number of opinions OLC will withhold from publication, while simultaneously providing a more comprehensive and nuanced description of the factors considered in making publication decisions.  Compare the Barron Best Practices Memo at 5-6 with the Bradbury Best Practices Memo at 4.

[5] See Principles to Guide the Office of Legal Counsel at 4 (“OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure”).

[6] Accord, Principles to Guide the Office of Legal Counsel at 4.

[7] CREW’s earlier suit, seeking review under the APA, had been dismissed.  Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 164 F.Supp.3d 145, 151–56 (D.D.C. 2016), aff’d, 846 F.3d 1235, 1238 (D.C. Cir. 2017).  For an analysis of that decision see Bernard W. Bell, FOIA’s Affirmative Publication Obligations and Plaintiff-Focused Injunctive Relief,  36 YALE J. ON REG.: NOTICE & COMMENT (April 24, 2018).

[8] Section 552(a)(2) also requires affirmative publication of “administrative staff manuals and instructions to staff that affect a member of the public,” §552(a)(2)(C), and certain documents produced in response to FOIA requests.  With regard to the later, the affirmative publication obligation applies if either (1) “the agency determines that such records have become or are likely to become the subject of subsequent requests,” or (2) the records “have been requested 3 or more times.”  §552(a)(2)(D).  Moreover, agencies must make available indexes of the material subject to section 552(a)(2)’s affirmative disclosure requirements.  §552(a)(2).

[9] The District Court had given CREW leave to “amend its complaint to allege that some specific subset of OLC’s formal written opinions [is] being unlawfully withheld.” CREW II, at *3.

[10] The “working law” concepts originated in NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153, (1975) (quoting H.R. Rep. No. 1497, at 7 (1966)).

[11] 5 U.S.C. § 552(a)(4)(B); Tax Analysts, 492 U.S. at 142 n.3.