Citizens for Responsibility and Ethics in Washington v. United States Department of Justice

          Argued December 4, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:17-cv-00432)

          Anne L. Weismann argued the cause for the appellant. Alan B. Morrison and Adam J. Rappaport were with her on brief. Stuart McPhail entered an appearance.

          Alex Abdo and Jameel Jaffer were on brief for the amici curiae The Knight First Amendment Institute at Columbia University, et al. in support of the appellant.

          Brad Hinshelwood, Attorney, United States Department of Justice, argued the cause for the appellee. Michael S. Raab, Attorney, was with him on brief.

          Before: Henderson and Pillard, Circuit Judges, and Ginsburg, Senior Circuit Judge.

          OPINION

          Henderson Circuit Judge.

         Karen LeCraft Henderson, Circuit Judge: Citizens for Responsibility and Ethics in Washington (CREW), a non-profit advocacy group, seeks to compel the United States Department of Justice's Office of Legal Counsel to make available all of its formal written opinions, as well as indices of those opinions, under the so-called "reading-room" provision of the Freedom of Information Act (FOIA), 5 U.S.C. § 552(a)(2). The district court dismissed CREW's complaint for failure to state a claim upon which relief can be granted, largely based on this Court's decision in Electronic Frontier Foundation v. United States Department of Justice (EFF), 739 F.3d 1 (D.C. Cir. 2014). Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice, 298 F.Supp.3d 151, 155-56 (D.D.C. 2018). We agree and therefore affirm.

         I. Background

         The authority of the Office of Legal Counsel (OLC) is "nearly as old as the Republic itself." Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice (CREW I), 846 F.3d 1235, 1238 (D.C. Cir. 2017). Since the Judiciary Act of 1789, the United States Attorney General has had the authority "to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments." Judiciary Act of 1789, § 35, 1 Stat. 73, 93 (codified as amended at 28 U.S.C. §§ 511-513). The Attorney General has since delegated much of his authority to the OLC. See 28 C.F.R. § 0.25. The OLC's responsibilities currently include "[p]reparing the formal opinions of the Attorney General; rendering informal opinions and legal advice to the various agencies of the Government; and assisting the Attorney General in the performance of his functions as legal adviser to the President." Id. § 0.25(a). Over the years, the OLC has opined on "some of the weightiest matters in our public life: from the [P]resident's authority to direct the use of military force without congressional approval, to the standards governing military interrogation of 'alien unlawful combatants,' to the [P]resident's power to institute a blockade of Cuba." CREW I, 846 F.3d at 1238.

         Although the OLC frequently conveys its legal advice to executive agencies through informal means, it sometimes does so through "formal written opinions." See Memorandum from David J. Barron, Acting Assistant Attorney Gen., to Attorneys of the Office of Legal Counsel, Best Practices for OLC Legal Advice and Written Opinions 1-2 (July 16, 2010) (hereinafter Best Practices Memo). Formal written opinions "take the form of signed memoranda, issued to an Executive Branch official who has requested the [OLC]'s opinion." Id. at 2. The OLC considers its formal written opinions to be "one particularly important form of controlling legal advice." Id. at 1. Indeed, a former head of the OLC has described its formal written opinions and informal advice as "authoritative" and "binding by custom and practice in the executive branch." Josh Gerstein, Official: FOIA Worries Dampen Requests for Formal Legal Opinions, Politico: Under the Radar (Nov. 5, 2015), https://www.politico.com/blogs/under-the-radar/2015 /11/official-foia-worries-dampen-requests-for-formal-legal -opinions-215567.

         The OLC publishes some, but not all, of its formal written opinions. See Best Practices Memo 5. In deciding whether to publish a formal written opinion, the OLC considers "the potential importance of the opinion to other agencies or officials in the Executive Branch; the likelihood that similar questions may arise in the future; the historical importance of the opinion or the context in which it arose; and the potential significance of the opinion to the [OLC]'s overall jurisprudence." Id. "In applying these factors, the [OLC] operates from the presumption that it should make its significant opinions fully and promptly available to the public." Id. The OLC then weighs those factors against "countervailing considerations" such as whether publication "would reveal classified or other sensitive information relating to national security[, ] . . . would interfere with federal law enforcement efforts or is prohibited by law." Id. Additionally, the OLC "decline[s] to publish opinions when doing so is necessary to preserve internal Executive Branch deliberative processes or protect the confidentiality of information covered by the attorney-client relationship between OLC and other executive offices." Id. at 5-6.

         Invoking FOIA, CREW seeks to compel disclosure of the OLC's unpublished formal written opinions. Importantly, CREW does not rely on FOIA's "most familiar provision"- § 552(a)(3)-by making a specific request for documents. CREW I, 846 F.3d at 1240. Instead, CREW relies upon FOIA's reading-room provision, § 552(a)(2). Unlike its more commonly invoked neighbor-which imposes a "reactive" duty on agencies, CREW I, 846 F.3d at 1240-the reading-room provision affirmatively obligates agencies to "make available for public inspection" several categories of documents even absent a specific request. 5 U.S.C. § 552(a)(2); see CREW I, 846 F.3d at 1240. As relevant here, the categories include (1) "final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases," (2) "those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register" and (3) "current indexes providing identifying information . . . as to any matter . . . required by this paragraph to be made available or published." Id. § 552(a)(2).

         In July 2013, CREW urged the OLC to make available all of its formal written opinions and indices of those opinions. After the OLC declined, CREW sued the Department of Justice to compel disclosure under FOIA's reading-room provision. See CREW I, 846 F.3d at 1240. The district court dismissed the complaint because CREW improperly brought its claim under the Administrative Procedure Act, 5 U.S.C. § 704, instead of FOIA's judicial-review provision, 5 U.S.C. § 552(a)(4)(B). Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice, 164 F.Supp.3d 145, 151-56 (D.D.C. 2016). We affirmed the dismissal. CREW I, 846 F.3d at 1246.

         While CREW I was pending, we also decided EFF. 739 F.3d 1. In EFF, we addressed a claim brought under FOIA's "reactive" provision seeking disclosure of a formal written opinion the OLC had sent to the FBI. Id. at 4-6. The court held that the opinion was exempt from disclosure by the deliberative process privilege. Id. at 9-10. As relevant here, it determined that, notwithstanding the opinion at issue bore some "indicia of a binding legal decision"-namely, that it was "controlling (insofar as agencies customarily follow OLC advice that they request), precedential, and can be withdrawn"-it did not constitute the FBI's "working law" because the OLC "does not speak with authority on the FBI's policy." Id. at 9. Instead, the court concluded, the OLC opinion was "precisely the sort of 'advisory opinion . . . comprising part of a process by which governmental decisions and policies are formulated' that is covered by the deliberative process privilege." Id. at 10 (alteration in original) (quoting Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 875 (D.C. Cir. 2010)).

         Following our decisions in EFF and CREW I, CREW sent a letter to the OLC in February 2017 renewing its request that the OLC disclose all of its formal written opinions and accompanying indices under FOIA's reading-room provision. The OLC did not respond to the renewed request, prompting CREW ...