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OLC Memos and FOIA: Why the (b)(5) Exemption Matters

The headline of yesterday’s D.C. Circuit decision in Electronic Frontier Foundation v. Department of Justice, in which the Court of Appeals rejected a FOIA request for a 2010 OLC opinion regarding the legality of the FBI’s controversial use of “exigent” National Security Letters (NSLs) (issued without many of the usual–mandatory–FBI certifications), is unsurprising. But the reasoning is another story. Indeed, as I explain in the brief post that follows, Judge Edwards’s analysis may have the effect, unintended or otherwise, of insulating virtually all nonpublic OLC memos and opinions from FOIA requests–regardless of their subject-matter or sensitivity.

The key to yesterday’s opinion is the distinction between two exemptions to FOIA: Exemption 1, which exempts “matters that are . . . specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and . . . are in fact properly classified pursuant to such Executive order,” and Exemption 5, which exempts “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” Although the district court had rejected the Electronic Frontier Foundation’s request on both grounds, the specifics matter; under the logic of Exemption 1, only those aspects of the opinion that are properly classified can be withheld (ostensibly via redaction); under the logic of Exemption 5, the entire memo is usually exempt.

In explaining why Exemption 5 covered the OLC memo in question, the D.C. Circuit was at great pains to distinguish the long line of cases barring application of Exemption 5 (and thus requiring disclosure) with regard to the “working law” of government agencies. The OLC memo was not “working law,” Judge Edwards explained, because “OLC did not have the authority to establish the ‘working law’ of the FBI. . . . The OLC Opinion instead amounts to advice offered by OLC for consideration by officials of the FBI. Such a memorandum is not the law of an agency unless the agency adopts it.” And later in the opinion, Judge Edwards holds that the FBI never formally “adopted” the OLC memo, even though it was invoked in various public settings, including public reports by the Justice Department’s Inspector General and statements by FBI witnesses at congressional hearings. As Judge Edwards wrote, “the FBI never itself publicly invoked or relied upon the contents of the OLC Opinion;” the public references instead “originated from the OIG and Congress.”

Whatever the merits of the “working law” line of cases (and the test for agency “adoption”) in the context of other government agencies, it produces a deeply problematic result as applied to OLC. First, OLC memos are generally viewed as authoritative guidance to the rest of the Executive Branch when it comes to the scope of the government’s legal authorities–whether or not they are “adopted” as such. This point does not deter the court, though–again, because the FBI never publicly “adopted” it: “That the OLC Opinion bears these indicia of a binding legal decision does not overcome the fact that OLC does not speak with authority on the FBI’s policy; therefore, the OLC Opinion could not be the ‘working law’ of the FBI unless the FBI ‘adopted’ what OLC offered.”

Although this conclusion may strike readers as an ipse dixit, it actually reflects a far more troubling analytical strain: ”Even if the OLC Opinion describes the legal parameters of what the FBI is permitted to do, it does not state or determine the FBI’s policy. The FBI was free to decline to adopt the investigative tactics deemed legally permissible in the OLC Opinion.” In other words, OLC memos are not “working law,” the D.C. Circuit holds, because they are legal opinions (identifying only the permissible limits of government action), and not determinations to undertake specific policy initiatives. That’s not a typo–the D.C. Circuit thereby held that OLC opinions are not “working law” because they’re only legal conclusions–and not policy recommendations. 

To be sure, one might interpret Judge Edwards’ opinion somewhat more narrowly–as only upholding the use of Exemption 5 for OLC opinions that either (1) say “no” (and therefore do not end up as “working law” under any plausible definition of that term); or (2) are expressly not adopted by the relevant agency–as opposed to just not being expressly adopted. But given the language quoted above, it is not exactly self-evident that this is what Judge Edwards had in mind–or that OLC won’t endorse such a broad reading of Exemption 5 going forward.

It is also possible that other agencies in other cases will have a harder time disputing their “adoption” of specific OLC memoranda, especially if and when those memos are invoked as the legal authority for particular policy initiatives. And so it may well be that yesterday’s D.C. Circuit decision does not forever exclude from FOIA any and all advice provided by OLC. But insofar as (1) OLC already is understood to speak on behalf of the Executive Branch (and so its advice is presumptively binding whether or not it is “adopted”; and (2) plenty of significant OLC memos are written in contexts in which they would not otherwise need to be “adopted” in order to be effective, it does appear that yesterday’s decision will insulate at least most OLC opinions from FOIA–whether in contexts in which the national security exemption might have provided a more specific basis for exemption, of otherwise. Especially as Congress continues to contemplate ways of increasing the transparency of OLC memoranda, yesterday’s decision seems to cut quite decisively in the other direction.

Update: A reader comment leads me to make explicit what was implicit in the above: Obviously, nothing requires OLC to invoke Exemption 5 in all or even most FOIA cases seeking production of its opinions. Indeed, David Barron’s July 2010 “Best Practices” memo expressly notes that “OLC will consider disclosing documents even if they technically fall within the scope of a FOIA exemption,” and that “the Office will not withhold an opinion merely to avoid embarrassment to the Office or to individual officials, to hide possible errors in legal reasoning, or ‘because of speculative or abstract fears.’” Simply put, nothing requires OLC to aggressively invoke Exemption 5 in cases in which, after yesterday, it might nevertheless be available. But especially in light of yesterday’s decision, it appears that there will be ever-less incentive for OLC to disclose on its own.

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About the Author

is co-editor-in-chief of Just Security. Steve is a professor of law and the associate dean for scholarship at American University Washington College of Law. Follow him on Twitter @steve_vladeck.