United States Court of Appeals, District of Columbia Circuit
Citizens For Responsibility And Ethics In Washington, Appellant
United States Department of Justice, Appellee
December 4, 2018
from the United States District Court for the District of
Columbia (No. 1:17-cv-00432)
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.
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.
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.
Henderson Circuit Judge.
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.
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.
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),
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.
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).
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.
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)).
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