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A federal court just held that about 1/4 of all Office of Legal Counsel opinions probably fall w/in the provision of the Freedom of Information Act requiring proactive disclosure to the public.
This is a groundbreaking ruling. Let me explain. https://knightcolumbia.org/documents/6e7d052df5/2020.09.11_ECF-39_Opinion.pdf
This is a groundbreaking ruling. Let me explain. https://knightcolumbia.org/documents/6e7d052df5/2020.09.11_ECF-39_Opinion.pdf
The Office of Legal Counsel (OLC) is a subdivision of the Department of Justice tasked with issuing authoritative interpretations of law for the executive branch.
It has been described as the "Supreme Court of the executive branch." https://www.pbs.org/newshour/show/homeland-security-secretary-fully-confident-legality-obamas-immigration-action
It has been described as the "Supreme Court of the executive branch." https://www.pbs.org/newshour/show/homeland-security-secretary-fully-confident-legality-obamas-immigration-action
The opinions it issues often concern extremely controversial assertions of executive authority. For example, the OLC blessed the Bush administration's use of torture and the Obama administration's drone strike of a U.S. citizen in Yemen.
More recently, the Trump administration relied on OLC opinions to justify its refusal to comply with subpoenas issued by the House of Representatives in its impeachment inquiry.
Although OLC opinions authoritatively interpret the law that governs our government, the OLC publishes only a small fraction of its opinions. The rest remain hidden from the public.
Several years ago, we ( @knightcolumbia) took on a case filed by @Accountable_Org, arguing that the OLC's opinions constitute "working law" that must be proactively disclosed under the Freedom of Information Act (FOIA). https://knightcolumbia.org/cases/campaign-for-accountability-v-doj
The law here is a bit complicated, but FOIA requires agencies to proactively disclose records that (as the Supreme Court has summarized) constitute "working law."
(See 5 U.S.C. § 552(a)(2) at the link.)
https://www.law.cornell.edu/uscode/text/5/552
(See 5 U.S.C. § 552(a)(2) at the link.)
https://www.law.cornell.edu/uscode/text/5/552
In @Accountable_Org's lawsuit, we argued that all OLC opinions constitute "working law," because they are authoritative interpretations of law for the executive branch and are binding on federal agencies and employees.
Three years ago, the court rejected that argument based on a D.C. Circuit case that @EFF litigated. That earlier decision rejected EFF's argument that a specific OLC opinion was "working law," notwithstanding the fact that OLC opinions are generally binding.
We amended our complaint, explaining that even accepting the court's interpretation of the EFF decision, certain categories of OLC opinions constitute "working law," given the circumstances in which they're issued. https://knightcolumbia.org/documents/d7d89a118b/2017.10.27_ECF-22_Amended-Complaint.pdf
About two hours ago, the court issued a ruling agreeing with us on one of those categories of OLC opinions—specifically, those that resolve interagency disputes.
The OLC issues these opinions when a dispute between two or more federal agencies turns on a disagreement over how to interpret the law. According to at least one estimate, about 1/4 of all OLC opinions are of this type.
You can be sure the government will appeal this ruling, but if it's affirmed, it will be the single biggest inroad yet against the excessive secrecy surrounding OLC opinions. /END
