Government Ducking Even More FOIA Requests By Refusing To Ask For Official Legal Guidance

from the agencies-stood-together-to-ensure-OLC-stood-apart dept

Fri, Nov 13th 2015 8:30am — Tim Cushing

The Freedom of Information Act was put into place to give us a more accountable government. The theory was that more transparency would lead to better governing. Our public servants would know their activities were open to scrutiny and might start acting like their employers were watching over their shoulders.

Instead, our public servants focused their time and effort on finding creative ways to hide the same stuff they're obligated by law to reliquish. Instead of a better governing, we got private email servers, excessively-abused FOIA exemptions, revamped records retention policies and the erection of massive paywalls when all else failed.

This instinct to dodge, rather than deliver, bleeds into every agency in the federal government. The fear of FOIA requests has led agencies to avoid committing anything to paper -- either of the dead tree variety or composed of pixels and residing in an FOIA-able digital inbox. This includes the sort of thing that one would assume government agencies would want in writing: official legal opinions on agencies' programs and activities.

Concerns about legal opinions being made public under the Freedom of Information Act are leading various parts of the federal government to stop asking for written advice from the Justice Department's Office of Legal Counsel, a top Obama administration lawyer said Thursday.

"I think that has served as a deterrent to some in terms of coming to the office to ask for a formal opinion," said Central Intelligence Agency General Counsel Caroline Krass, who spent more than a decade at the Justice Department office that issues legal advice for the executive branch.

So, we have an Office of Legal Counsel that's been reduced to issuing verbal blessings for government activities. Not only does this keep the government's official legal justifications secret, but it prevents a) FOIA requesters from obtaining a copy and b) the legal opinion being used against the government in litigation. Josh Gerstein's article for Politico notes the number of official OLC opinions has declined steeply over the last several years, with the total number released over the last three years (29) barely topping 2009's release total (28).

The OLC admits it is issuing far fewer formal opinions. At the same time, it claims its secret opinions, delivered orally or via email, are just as binding. That may be great news for those with inside access, but for everyone else, it's just another door being slammed in their face.

But there's another reason the OLC is offering fewer formal opinions: the administration -- along with several other government agencies -- feel they're better served by working around this independent office. From Jack Goldsmith -- former Assistant Attorney General and member of the Office of Legal Counsel -- writing for the Lawfare blog:

Many people who would know have told me that OLC’s advice is now sought much less than in the past, especially in national security decisions. A few people have told me that OLC simply has no place at the table in important national security decisions.

[...]

I know from first and second-hand conversations that some important lawyers in the Obama administration came to Office thinking that OLC had too much sway in prior administrations. And then the sky did not fall when Attorney General Holder, early in the administration, reportedly overruled an OLC opinion on the unconstitutionality of a D.C. voting rights bill after the Acting Solicitor General advised him he could defend the law in court.

The guidance of independent legal counsel could also result in better governing. But it's not going to change anything if many of the most powerful people in Washington consider its opinions to be liabilities, at best. The OLC obviously doesn't have any pull -- at least not with this administration. Judging from Goldsmith's comments in his post, it appears that power was on the wane throughout much of the previous administration.

In the end, it's just another way for the federal government to cut the public out of the loop. The government seems to really like other people's money and the power that comes with the positions, but has nearly no enthusiasm for accepting the additional responsibilities that come with the territory.

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Filed Under: doj, foia, government, legal guidance, olc, transparency

12 Comments

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Anonymous Coward, 13 Nov 2015 @ 8:42am

Two points
1) If its not written down, it is not binding, as nobody has an accurate record of the opinion.
2) The same people complain like hell because the public can obtain the same level of privacy via encryption.
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Anonymous Coward, 13 Nov 2015 @ 8:53am

Simple equation
if the checks and balances have been stapled and screwed into never moving, then the entire thing is no longer binding and the house of cards is only being supported by lies.
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Anonymous Anonymous Coward, 13 Nov 2015 @ 9:32am

It's Perishing

Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we can not dedicate, we can not consecrate, we can not hallow this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.

Abraham Lincoln

It seems that along with our founding fathers Lincoln was a bit optimistic.
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allen3w4, 13 Nov 2015 @ 10:14am

Re:
Ink-on-Paper (laws) ... is worthless if the law enforcers (government) choose not to apply the laws to themselves -- and that's exactly where the U.S. nation is right now.

Silly and dumb to fret about trivial FOIA violations when Congress/President/SCOTUS routinely violate fundamental laws of the U.S. Constitution on a daily basis.

All governments become tyrannical sooner or later. It's getting late in American history.

The root problem is the flawed concept of democratic government itself.

Ink-on-Paper does not restrain governments.
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Uriel-238 (profile), 13 Nov 2015 @ 10:17am

Where did we get this idea that a hidden opinion can be binding?
The paper trail is supposed to cover people's asses when the opinion is that a terrible action (e.g. a covert drone strike) must be done.

If we were a nation of laws and that drone strike turned out to, instead, kill a bunch of civilians and journalists, butts would be busted, and the line of command would go up to the guy who placed this order based on that intel based on this legal standing.

And if any of those things are missing, he loses his job, is disgraced and maybe even goes to jail for murder.

But the paper trail doesn't serve that function anymore, does it? If grandmothers and children get blown up accidentally we don't have a court martial. We don't have a commission. We just say eh, whatcha gonna do?. So the paper trail, and the public access to it isn't necessary.

So we are not a nation of laws. We're a nation of kings.

Be sure to bow to your officials and address them as My Lord
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Yes, I know I'm commenting anonymously, 13 Nov 2015 @ 10:29am

I do not know the legal restrictions on the OLC but hete are two suggestions:
The article reads as if the office is independent enough that it can publish its legal opinions itself (and do that online).
If the number of requests goes down, it will have more time to issue unrequested opinions (and do that online).

The OLC may lose its funding this way but at least it will go down with its reputation intact.
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Anonymous Coward, 13 Nov 2015 @ 11:36am

Such corrupt governing practices always leads to revolt.
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Anonymous Coward, 13 Nov 2015 @ 11:38am

"Instead of a better governing, we got private email servers, excessively-abused FOIA exemptions, revamped records retention policies and the erection of massive paywalls when all else failed."

To add to the list, the use of private lawyers and non-government contractors, which the Bush II regime made particular use of -- for doing things that the government already had staffed agencies set up for specifically.
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Anonymous Coward, 13 Nov 2015 @ 7:59pm

Wait. OLC? What? Why would anyone in the government ever ask whether or not something was legal?
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Bergman (profile), 13 Nov 2015 @ 11:33pm

Re: Where did we get this idea that a hidden opinion can be binding?
The King rules because he is mightier than anyone else.

But if someone is mightier than the King, that person is also righter than the King.

If might makes right, shooting first is the most moral possible act.
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Anonymous Coward, 14 Nov 2015 @ 5:49pm

Government in non-functional
The SSA has about 40 million social security numbers that are used by more than one person.

The SSA says there are more than 6 million people in the US over 100 years old, and some of these numbers are still active.

This is just one agency. What else don't we know about? The SSA is in no hurry to fix this.
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GEMont (profile), 15 Nov 2015 @ 10:50am

G.et A.nything W.ith D.ollars
"The government seems to really like other people's money and the power that comes with the positions, but has nearly no enthusiasm for accepting the additional responsibilities that come with the territory."

Exactly what one would expect to see if the US federal government had been taken over by criminals, or businessmen, or both.... but hey, everyone knows that aint possible, cuz "it can't happen here".

America is under the direct protection of GAWD, after all.

---
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